Crawley Borough Council has become the first to successfully prosecute a detention centre service provider under the Health Act for not enforcing the smoking ban.
G4S Care and Justice Services, contracted to run the Brook House Immigration Removal Centre near Gatwick airport, pleaded guilty on 6 March to four counts of failing to stop a person smoking between 27 June and 1 July 2018.
Crawley Magistrates’ Court fined the company £1,666 for each count, and ordered the company to pay the council’s costs of £5,809.50 plus a victim surcharge of £170. The court said the maximum fine was applied, which was then reduced to reflect the early guilty plea.
Iain Pocknell, principal environmental health practitioner for Crawley Borough Council, said: “This was about protecting detainees’ health, who are stuck because they can’t get out, but also the staff who work there.
“Even though people are detained they still have their right to unpolluted air for all the usual health reasons – we know the dangers of second-hand smoke and the risks involved in passive smoking.”
He added: “The question local authorities need to ask is do they realise that detention centres are not exempt from the regulations? That’s the key message. I would be amazed if there aren’t problems elsewhere.”
While the Health Act 2006 has been in force for over a decade, it had previously been assumed that detention centres were excluded from the Act’s provisions, as similar facilities such as prisons are exempt.
However, a High Court test case in February 2018 found that allowing smoking in immigration centres was unlawful. The Health Act exempts specific premises but detention centres are not listed. Properties owned by the Crown such as prisons are exempt however, and so it had been thought that detention centres were also not covered by the legislation. But the court ruled that Brook House wasn’t Crown property because the government had contracted out the service to G4S.
The judge presiding over the case also ruled that it was indirect discrimination to force the two asylum seeker detainees – who brought the case – to have to pray next to uncovered cell toilets when they were locked in at night.
Home secretary Amber Rudd had ten days in which to act to rectify these problems across ten detention removal centres across the UK. But six months later, solicitors Duncan Lewis – who brought the High Court test case on behalf of the two detainees – were still being told by those at Brook House that the smoking ban was not being enforced.
One detainee complained (despite being a smoker himself) that there was no possibility of getting any ‘fresh air’ as the outside ‘exercise’ area was in reality the smoking area, and people were smoking inside. Duncan Lewis contacted Crawley Borough Council, the enforcing body, which started its own investigation.
Pocknell said: “G4S were very cooperative. I went in in June to see the non-smoking policy, and I could see all the non-smoking signs but there were no detainees when I visited, as it was an empty wing. We interviewed a detainee who had complained [to Duncan Lewis] and he gave us specific dates to look at.”
The council said it went through the CCTV over the period ithat the client had alerted it to – between 27 June and 1 July 2018 – and found 37 instances of smoking in an indoor communal area.
This was on a ground floor common area, and a landing area with a sofa and pool table. G4S intervened on two occasions but on only one of these occasions did the detainee stop smoking.
Pocknell added: “Actually when we looked at the CCTV smoking was more widespread than what I was led to believe initially. The G4S policy wasn’t very effective. I think they would say that they have very little power because it’s a detention centre and not a prison – but then people were not even being spoken to either, to be asked to stop smoking.”
Because there were multiple instances of smoking inside in contravention to the Act the council felt it would be difficult to interview about each instance individually, so it issued a ‘letter under caution’ covering all the smoking instances it had seen on the CCTV, requesting G4S’s mitigation. The council had expected G4S to respond with reasons, perhaps staff had been elsewhere deployed for example, but they did not respond at all until shortly before the court case.
Because this was a summary only offence, the council had just six months from when the incident took place to issue a summons to prosecute. It therefore had to make a decision to proceed, and could not wait for G4S to respond or it would have lost the opportunity to prosecute.
Lewis Kett, public law solicitor at Duncan Lewis, said: “After we had the judgment in the High Court in February 2018 for our clients we wanted to follow up and the council were responsible for enforcing.”
Kett facilitated contact between their client and the council, and added: “The council took a witness statement from him about what he saw around the failure to implement the smoking ban. The general complaints were that he was breathing in second hand smoke wherever he went – and it’s the effects of having to breath in that smoke.”
The two detainees who brought the High Court challenge in February 2018 were Mohammed Hussein, 23, from Ethiopia, and Muhammad Rahman, 35, from Bangladesh. Both were former detainees at Brook House immigration removal centre and despite being smokers themselves, they said sleeping in small and poorly ventilated three-man cells where all three detainees were smokers 'was intolerable'.
An independent report for G4S by Kate Lampard at Verita was commissioned last year after an undercover reporter for BBC Panorama filmed immigration detainees being verbally and physically abused. The Verita report published in December 2018 found that staff acted in a 'draconian' and 'laddish' way towards the detainees, and that officers asserted a 'malign' influence.
Phil Wragg, centre director for Brook House, said: "There is a smoking ban inside the buildings of Brook House with detainees only permitted to smoke in agreed outside areas. Increased staffing levels and staff patrols have assisted with enforcing this policy."
Smoking is not permitted anywhere inside Brook House and is only allowed outside in the courtyard, where wall-mounted lighters are supplied. Lighters are not sold within the centre and detainees are encouraged to buy vapes instead.
All detainees are required to sign an agreement to comply with the smoking ban, non-smoking signage is put up across the centre, and detainees are regularly reminded not to smoke inside. Management do daily walk-rounds of Brook House to monitor compliance by both detainees and staff.