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Implementation of smokefreelegislation in England

Guidance for council regulatory officers – second edition

Together – making a real difference

In offering this advice LACORS wishes tomake it clear that:

• legislation may change over time and the advice givenis based on the information available at the time theguidance was produced – it is not necessarilycomprehensive and is subject to revision in the lightof the further information;

• only the courts can interpret statutory legislation withany authority; and

• this advice is not intended to be definitive guidancenor a substitute for the relevant law and independentlegal advice should be sought where appropriate.

1 Purpose of the guidance 4

2 Background to the legislation 6

3 Overall approach and enforcement policy 8

4 Legislative requirements and offences 9

5 Enforcement agencies and authorised officers 12

6 Inspections 14

7 Application 16

8 Enforcement action 22

9 Operational procedures and data collection 29

Appendix 1 Definitions 31

Appendix 2 RTPM contact details and smoking cessation information 33

Appendix 3 Evidence of health effects 34

Appendix 4 General requirements, exemptions and good practice 35

Appendix 5 Offences and penalties 50

Appendix 6 Example incident form for use by businesses 51

Appendix 7 Key issues in relation to smoking shelters 52

Appendix 8 Smokefree vehicles decision-making flowchart 54

Appendix 9 Fixed penalty notice guide 55

Contents

Implementation of smokefree legislation in England 3

The purpose of this updated guidance is to supportcouncil regulatory officers in continuing tosuccessfully implement the smokefree legislationwhich came into force in England on 1 July 2007.This replaces the previous version issued in March2007.

It is the view of LACORS, CIEH and TSI that thesmokefree requirements for England are bothsensible and comprehensive and that the task forcouncils in securing compliance continues to bestraightforward. As with all legislation, there isalways the opportunity for local interpretation andapplication according to local circumstances.However, in the light of the extensive business andpublic interest that has been expressed about theserequirements, it is particularly important to continueto ensure a consistent approach to the application ofthe legislation so that both employees and membersof the public are properly protected and businessesacross England will consider that they are beingtreated fairly.

Statistics confirm1 that in the first year ofimplementation of the smokefree legislation,compliance has been consistently high:

• 98 per cent of all premises and vehicles inspectedbetween July 2007 and March 2008 were smokefreein compliance with the requirements of the law; and

• 87 per cent of all premises and vehicles weredisplaying the correct no-smoking signage.

This has helped to create improved workingconditions for many employees and has ensured thatenclosed public places are a healthier place to be.

Throughout this guidance, the term ‘regulatoryofficer’ is used and is intended to mean all thoseofficers who have been authorised by a local councilto undertake the work of securing compliance with

the smokefree legislation. Other specific definitionsas set out in the legislation are covered inAppendix 1.

This legislation concerns the protection of publichealth from secondhand smoke, but it also raisesconcerns about smoking in general. For this reasonthere will be many people who will wish to take theopportunity to quit smoking altogether. Wherepossible and appropriate to do so, regulatory officersare encouraged to promote Local NHS Stop SmokingServices. These services offer advice, information andsupport to help people stop smoking and can alsoassist with coming to terms with not being able tosmoke at work. An on-line resource centre can beaccessed at http://smokefree.nhs.uk Details of localservices and other support may also be obtained fromthe NHS Smoking Helpline on 0800 022 4 33 2.In addition, NICE have produced a leaflet which setsout what employers can do to encourage and supporttheir employees to stop smoking(www.nice.org.uk/nicemedia/pdf/PHI005leaflet.pdf)which can usefully be delivered by local councilofficers on their visits to, and correspondence with,businesses.

The overall co-ordination of tobacco controlactivities, including local Stop Smoking Services, isthe responsibility of the Department of HealthRegional Tobacco Policy Managers (RTPMs). RTPMscan provide advice and support to local councils onall tobacco control measures. RTPM contact detailsand smoking cessation links are available inAppendix 2.

This guidance has been developed by the LocalAuthorities Coordinators of Regulatory Services(LACORS) and the Chartered Institute ofEnvironmental Health (CIEH) in consultation with theDepartment of Health, Trading Standards Institute,Tobacco Control Collaborating Centre, individualcouncils and others. It will continue to be amended


1 Purpose of the guidance

1 Smokefree England – One year on (www.smokefreeengland.co.uk/files/dhs01_01-one-year-on-report-final.pdf)

and updated in the light of experience ofimplementation. LACORS welcomes both yourcomments and your suggestions for furtherclarification and future inclusions.

Sarah [email protected]

Jane [email protected]

Ian GrayChartered Institute of Environmental [email protected]


The Government’s White Paper Choosing Health:Making healthy choices easier2 published in 2004proposed action on secondhand smoke and set out aclear strategy to tackle smoking as well as to reducethe effects of smoking on others. The Health Act2006 Chapter 13 containing the smokefree legislativeprovisions, received Royal Assent in July 2006 andcame into force in England on 1 July 2007.Smokefree legislation has also been successfullyimplemented in the Republic of Ireland, Scotland,Wales, Northern Ireland, the Channel Island States ofGuernsey and Jersey and the Isle of Man. There areminor differences in the legislation across Britain andIreland however the vast majority of requirementsare the same.

The Government’s objectives for delivering smokefreelegislation are to:

• reduce the risks to health from exposure ofsecondhand smoke;

• recognise a person’s right to be protected from harmand enjoy smokefree air;

• increase the benefits of smokefree enclosed placesand workplaces for people trying to give up smokingso they can succeed in an environment where socialpressures to smoke are reduced; and

• save thousands of lives over the next decade (and forthe foreseeable future) by reducing both exposure tohazardous secondhand smoke and overall smokingrates.

See Appendix 3 for further evidence about thehealth benefits of smokefree environments.

The following are quotes from people with key rolesin the successful implementation of the smokefreelegislation:

“When we introduced the smokefree law lastmonth [July 2007] we predicted that it wouldbe largely self-enforcing based on experienceelsewhere and the fact that three-quarters ofthe public supported the move.”

Dawn PrimaroloMinister of State for Public HealthPress release Smokefree England - One month onwww.smokefreeengland.co.uk/media/smokefree-england-one-month-on.html

“The legislation this country has implementedrepresents some of the most far-reachingprotection provided to the public andemployees anywhere in the world.”

“This landmark development will leave a largefootprint in the history of public health and willbe of lasting benefit for generations to come.”

Liam Donaldson Chief Medical Officer, Department of HealthOn the state of public health: Annual report of theChief Medical Officer 2006www.dh.gov.uk/en/Publicationsandstatistics/Publications/AnnualReports/DH_076817

“In time to come those who follow us into theenvironmental health fraternity will be enviousof us that we had such an opportunity, andproud of us that we delivered the desiredoutcome so completely.”

Ian GrayPrincipal Policy Officer, Chartered Institute ofEnvironmental Health From Environmental Health News, 4 July 2008

These successes have been achieved largely as a resultof the supportive work undertaken by councils and


2 Background to the legislation

2 www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4094550&chk=aN5Cor 3 www.opsi.gov.uk/acts/acts2006/ukpga_20060028_en.pdf

www.dh.gov.uk/en/Publicationsandstatistics/Publications/AnnualReports/DH_076817

www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4094550&chk=aN5Cor

the national publicity campaigns prior to theimplementation dates to inform the public andbusinesses about how the legislation will affect themand to build compliance by helping them to preparethrough the Smokefree England campaign. TheDepartment of Health and Smokefree Englandcontinues to provide information to businesses andthe public about the smokefree legislation. For furtherinformation see www.smokefreeengland.co.uk


Regulatory officers already work closely withbusinesses to ensure that compliance is achieved witha wide range of legislative requirements for examplein respect of food safety, occupational health andsafety and environmental protection. It is envisagedthat the approach taken to smokefree legislation willbe in the same manner as that usually adopted by thecouncil, i.e. risk based.

The experience in England to date, like that of othercountries who have introduced comprehensivesmokefree legislation, is that this type of legislation iswidely supported by the public, that high rates of selfenforcement are evident and that there is thereforeonly a minimal need to employ enforcement measures.

Therefore, successful implementation ofsmokefree legislation will continue to bemeasured by the number of premises that aremeeting the requirements of the law and aresmokefree and/or where smoking no longertakes place, rather than by the number ofenforcement actions taken by any individualcouncil.

In order to ensure that a fair, proportionate andconsistent approach is being taken to smokefreelegislation, regulatory officers will need todemonstrate that any enforcement action being takenis in accordance with the principles of the council’senforcement policy and the Regulators’ ComplianceCode.4

Councils will therefore need to determine anappropriate enforcement approach for their area. Thefollowing text may be useful to form the basis of suchan enforcement policy:

‘Smokefree legislation in England has been inforce for over a year and the expectations ofcompliance with the legislation by businessesshould be high. Nevertheless, where non-compliance is due to misunderstandings or alack of diligence, then further information,advice and guidance can be provided.

However, where it is evident that serious effortsare not being made to comply, or the attitudeis un-cooperative or antagonistic, then adecision to take enforcement measures shouldbe considered.

It is likely that enforcement actions will attractpublicity and public attention and it isrecommended that each decision onenforcement action should be properlyconsidered and with clear justification. Where aperson is determined to flout the law a robustresponse will be appropriate.’


3 Overall approach and enforcement policy

4 http://www.berr.gov.uk/files/file45019.pdf

The legislation which prohibits smoking in enclosedworkplaces and public places is Part 1 of the HealthAct 2006. Schedules 1 and 2 to the Act contain thepowers of authorised officers and the details ofFixed Penalty Notices (FPNs). The specificrequirements are contained in several separate sets ofregulations:

• Smoke-free (Premises and Enforcement) Regulations2006;

• Smoke-free (Exemptions and Vehicles) Regulations2007;

• Smoke-free (Penalties and Discounted Amounts)Regulations 2007;

• Smoke-free (Vehicle Operators and Penalty Notices)Regulations 2007;

• Smoke-free (Signs) Regulations 2007; and

• Merchant Shipping Act 1995.

To date the Department of Transport has carried outconsultations in respect of proposed smokefreerequirements for sea going ships and inland waterwayvessels. A further consultation to apply restrictions onsmoking on ships is expected in early 2009.

Smokefree premises

To determine whether a workplace or public place isrequired under the legislation to be smokefree, itmust be:

• used as a place of work by more than oneperson (even if persons who work there doso at different times, or only intermittently);or

• open to members of the public; and

• in either case it must be enclosed orsubstantially enclosed.

Places of work

Premises that are places of work for more than oneperson will be required to be smokefree at all times inall enclosed and substantially enclosed parts, even ifpeople work there at different times of the day, oronly intermittently. A place of work used only by oneperson will also be required to be smokefree at alltimes if members of the public enter the premises, forexample to receive goods or services.

Premises that are open to the public

Premises that are open to the public will be requiredto be smokefree in all enclosed and substantiallyenclosed parts. Premises are open to the public if thepublic, or a section of the public, has access. It doesnot matter whether access is open to everyone, or ifaccess is restricted to certain members of the publicby way of invitation or payment – the premises willstill be required to be smokefree.

Definition of ‘enclosed’ and ‘substantiallyenclosed’ premises

Premises will be considered to be enclosed if theyhave a ceiling or roof and, except for doors,windows or passageways, are wholly enclosed,whether on a permanent or temporary basis.

Premises are substantially enclosed if they have aceiling or roof, but there are permanent openings inthe walls which are less than half of the total areasof walls, including other structures which serve thepurpose of walls and constitute the perimeter ofpremises.

This is known as the 50 per cent rule –put simply:

• if 50 per cent of the walls or more are missingthen it is legal to smoke in the area; or

• if more than 50 per cent of the walls arepresent then it is illegal to smoke in the area.


4 Legislative requirements and offences

When determining the area of an opening, noaccount can be taken of openings in which there aredoors, windows or other fittings that can be openedor shut.

A roof includes any fixed or movable structures,such as canvas awnings.

Tents, marquees or similar constructions willalso be classified as enclosed premises if they fall withinthe definition (note that tent/marquee side-panels willbe classed as rolled down even when they are rolled up).

In general if an opening or cover can be closed, the50 per cent rule will be calculated on the basis thatthose openings are closed (see Appendix 4 forfurther advice).

Smokefree vehicles

Section 5 of Chapter 1 the Health Act 2006 providespower for regulations to require vehicles to besmokefree. A vehicle means every type of vehicleother than aircraft and ships and hovercrafts inrespect of which regulations can be made underSection 85 of the Merchant Shipping Act 1995(MSA).

Regulation 11 of the Smoke-free (Exemptions andVehicles) Regulations 2007 provides that an enclosedvehicle shall be smokefree if it is used:

• by members of the public or a section of the public,whether or not for reward or hire; or

• in the course of paid or voluntary work by more thanone person, even if the persons who work there do soat different times or only intermittently.

If the vehicle has a roof which is able to be removedthen the vehicle must be smokefree when it is whollyor partly covered by a roof. A vehicle does not needto be smokefree when its roof is completely stowedaway so that it does not cover any part of acompartment in which persons may travel.

Smokefree vehicles are required to besmokefree at all times.

Vehicles not covered by the 2007 Regulations

The Regulations do not apply to private vehicles, thedefinition for which can be found in Appendix 2.This provides that vehicles will not be required to besmokefree if they are used primarily for the privatepurposes of a person who:

• owns it, or

• has a right to use it which is not restricted to aparticular journey as would be the case with a privateleased car.

Ships or hovercraft in relation to which regulationscould be made under section 85 of the MSA (relatingto safety and health on ships) are not covered bysmokefree regulations. The statutory definition of aship for these purposes is provided in section 313 (1)of the MSA: ‘ship includes every description of vesselused in navigation’.

Any ship or vessel that is not covered by the MSA doescome within the provisions of smokefree legislationand should be enforced by local councils. For example,floating restaurants might not be covered by the MSA.The Maritime and Coastal Agency can assist inestablishing if a particular ship or vessel is covered bythe MSA.

The regulations do not apply to aircraft. TheGovernment believes that provisions in the AirNavigation Order 2005 regarding smoking in aircraftare working satisfactorily. The Air Navigation Orderalso makes suitable provision regarding no-smokingsignage.

Offences and penalties

The table in AAppppeennddiixx 55 summarises the threeoffences under the Health Act 2006, their maximumfines and their respective defences, as well as the


offence of obstruction of officers. It also shows theamounts which will be applied as a fixed penalty foreach of the offences as set out in the Smoke-free(Penalties and Discounted Amounts) Regulations2007.


Enforcement authorities

Enforcement authorities responsible for this legislationare designated in the Smoke-Free (Premises andEnforcement) Regulations 2006 as lower tier localcouncils and port health authorities.

The following authorities are therefore theenforcement authorities for the smokefree legislationwithin the areas for which they have responsibility:

• a unitary authority;

• a district council in so far as it is not a unitaryauthority;

• a London borough council;

• a port health authority;

• the Common Council of the City of London;

• the Sub-Treasurer of the Inner Temple and theUnder Treasurer of the Middle Temple; and

• the Council of the Isles of Scilly.

An enforcement authority has enforcement functionsin relation to the premises and vehicles that arewithin:

• in the case of a port health authority, the district forwhich it is a port health authority; and

• in the case of other authorities, the area for which itis a local council other than any part of that areawhich falls within the district of a port healthauthority.

The legislation allows that where an investigation isbeing undertaken, the enforcement functions can betransferred from one or more of the specifiedenforcement authorities to any other enforcementauthority under arrangements made between thetransferring and receiving authorities. An investigation

could therefore be started by the council where theoffence took place and then transferred to anothercouncil, for example the council functioning as thehome/lead/primary authority. Such an arrangementmust be carried out with the agreement of thereceiving authority.

Authorisation of regulatory officers

Councils will need to continue to identify appropriateregulatory officers to carry out duties to securecompliance with the smokefree legislation. Existingofficers who are experienced in carrying outenforcement duties in relation to workplaces andbusinesses, such as environmental health officers,trading standards officers and licensing officers, willbe ideal for this purpose and could incorporate thiswork into their other inspection activities. It may alsobe appropriate to authorise:

• a variety of other council officers, for example streetwardens;

• staff recruited specifically for these duties, such assmokefree compliance officers; or

• staff of other appropriate organisations, such ascommunity support officers.

Authorisation of officers will need to be made inaccordance with normal council procedures.

Other agencies

Inspectors of the Health and Safety Executive (HSE)will bring matters of concern to the attention of theemployer, particularly if it involves a number ofsmokers or if there is a failure to display no-smokingsigns. Should the employer resist acting on thisadvice, the inspector will then bring the matter to theattention of the appropriate council. Any complaintsreceived by HSE about smokefree issues will bereferred to the appropriate council.


5 Enforcement agencies and authorised officers

Smoking on railway property

The Association of Train Operator Companies (ATOC)and Network Rail have introduced a comprehensivesmokefree policy throughout all railway stations inEngland as well as railway offices – station offices,canteens and workplace areas which are covered bythe legislation. This means that smoking is no longerallowed on all station concourses, ticket halls, onplatforms – covered and uncovered – and footbridgesand subways at station premises. Retail and foodoutlets are also required to be smokefree. However,smoking will still be permitted on some stationforecourts and in (uncovered) station car parks.No-smoking signs will indicate which areas aresmokefree.

The following therefore applies to the railways inEngland:

No smoking

• Station premises including corridors, lifts, toilets,reception areas, waiting rooms and shelters etc,railway offices;

• on trains; and

• platforms, footbridges and subways – covered,uncovered and partially covered.

Smoking permitted

• Areas external to the station, such as most uncoveredcar parks and station forecourts.

The British Transport Police (BTP) enforce a bye-lawwhich prohibits smoking on railway property. NetworkRail and the train operating companies willappropriately sign station concourses and leisureareas so that BTP officers may enforce smokefreerequirements through the medium of Bye-law 3 – ‘theno smoking bye-law’.

Ministry of Defence

All Ministry of Defence (MOD) and Service enclosedworkplaces in England, Wales, Northern Ireland andOverseas and all MOD and Service vehicles have beensmokefree since 31 December 2006. Appropriatesigns are displayed at all entrances to defenceestablishments and instructions issued to ensure thatall personnel are aware of this requirement. RoyalNavy surface warships, ships of the Royal FleetAuxiliary and HM Submarines everywhere aresmokefree below decks.

Smoking is prohibited within all enclosed MOD andArmed Forces premises with the only exemptionsbeing for:

• service family quarters;

• MOD residential housing; and

• designated Service Single Living Accommodation –local commanders may if they wish, designate anumber of sole or multiple occupancy bedrooms insingle living accommodation where smoking will bepermitted.

Smoking remains permitted in the open air on theMOD estate or inside premises that do not meet thedefinition of enclosed premises. Local commandershave to ensure that safety is not compromised bypersons smoking in the open on an MODestablishment.


Smoking is prohibited in all enclosed or ‘substantiallyenclosed’ public places and workplaces under theHealth Act 2006 and therefore council enforcementstaff will continue to work closely with businesses toraise their awareness of the legal requirements underthe Health Act 2006 and to ensure compliance. Thisapproach will be complemented by inspections ofsmokefree premises. Inspections will either beproactive, i.e. to confirm compliance, or reactive inresponse to complaints. It will be a decision for localcouncil staff to choose what will be the mostappropriate course of action once all factors havebeen taken into account. Prosecution and the use offixed penalty notices will generally be seen as a lastresort and used only when the serial and seriousnature of the situation warrants it.

As always, each and every occasion or case must beconsidered on its merits (i.e. what are the specificcircumstances, what warnings have previously beengiven, why this method now, etc).

A council should consider whether monitoringsmoking within smokefree premises could be aninvasion of any person’s Article 8 rights (i.e. the rightto respect for private and family life under the HumanRights Act 1998). There may be circumstances wherethere could be an invasion of privacy and where thisis the case it may be necessary to consider authorisingdirected surveillance under the Regulation ofInvestigatory Powers Act 2000 (RIPA).

RIPA does not provide any powers to carry out covertactivities. All RIPA does is to ensure that if suchactivities are conducted by council officers, then RIPAregulates them in a manner that is compatible withthe European Convention of Human Rights andFundamental Freedoms, which is incorporated intodomestic law by the Human Rights Act 1998.

In LACORS’ view, every effort should be madeto conduct inspections overtly, i.e. officers shouldgenerally announce themselves upon arrival and showtheir local council’s authorisation in writing to theperson in charge of the premises, prior to carrying

out an inspection of the premises to assesscompliance. In such circumstances no authorisation isrequired under RIPA.

Covert surveillance should only be used when acouncil is satisfied that it is necessary andproportionate. In all cases it is important todemonstrate that all the usual overt methods toensure compliance have been tried or discounted. Ifdiscounted, it is helpful to provide documentaryevidence to support reasoning.

The need to take enforcement action should notresult in the personal safety of officers beingcompromised and this should already be an explicitconsideration in the council’s existing health andsafety policy and procedures.

There might be times when enforcement authoritiesneed to work collaboratively with the police toeffectively enforce the legislation. Therefore, whendealing with each particular circumstance, regulatoryofficers must exercise their own judgment as to thebest course of action. For example, in a situationwhere a covert inspection is being carried out, if anofficer perceives a threat of violence or abuse, theyshould not engage with the manager at that stage,but return at a safer time, such as the next day withsupport if appropriate. It should be emphasised thatthe experience of regulatory officers engaged insecuring compliance with smokefree legislation hereand in other countries is that violent behaviour andeven the threat of violent behaviour is an extremelyrare occurrence.

LACORS considers that covert surveillancewithin smokefree premises would not beintrusive surveillance within Part II of RIPA as itis not taking place in residential premises.

LACORS also believes that it is very unlikely that anofficer will establish or maintain a personalrelationship to obtain information. If such arelationship was established or maintained an officercould be a covert human intelligence source (CHIS)


6 Inspections

and would require authorisation under RIPA. This isnot an approach LACORS would advise and westrongly believe that it should not be used.

If the council believes that covert surveillance isnecessary for the ‘purpose of preventing or detectingcrime or of preventing disorder’ i.e. they believe thata genuine crime is being committed then it may beappropriate to consider authorising directedsurveillance under RIPA. Councils cannot authorisedirected surveillance under RIPA on the ground ofprotecting public health as this ground is notavailable to local councils. Councils must also believethat such directed surveillance is proportionate i.e. itshould be the last resort and not the easiest or mostconvenient method and an attempt ought to havebeen made to warn the ‘offenders’ in an overtmanner before considering covert activity.

The council has to consider whether the directedsurveillance is:

• for the purpose of a specific investigation oroperation;

• likely to result in the obtaining of private informationabout a person (whether or not one specificallyidentified for the purposes of the investigation oroperation); and

• otherwise than by way of an immediate response toevents.

LACORS believes that directed surveillance in asmokefree premise would not generally be aninvasion of a person’s Article 8 rights, as asmokefree place is generally a public place, suchas a workplace or public house, and there will oftenbe a lower expectation of privacy. However, iftechnical equipment is used to record evidence, theOffice of Surveillance Commissioners has expressedthe view that it regards the recording of informationfor later use as an invasion of privacy and directedsurveillance would need to be considered.

If the council decides that it is not necessary andproportionate to seek the protection of RIPA, butcovert activity continues, it would be prudent tomaintain an internal audit process that is verifiable.

It is also worth noting that LACORS understands thatthe Office of Surveillance Commissioners wouldcriticise any council that it perceives is usingunauthorised covert surveillance as routine modusoperandi.


particular premises to which the sign relates e.g. ‘thishotel’. Businesses can also display their own design ofno-smoking signs provided that the minimumrequirements described previously are met.

Signage for residential accommodation which containscommunal areas where smoking is prohibited could say:

‘No smoking. It is against the law to smoke inthe communal parts of this building.’

The specialist tobacconist trade body has produced aspecific no-smoking sign to make it clear to membersof the public that people may only sample pipetobacco or cigars in their premises. This wording says:

‘No smoking. It is against the law to smoke inthis specialist tobacconist except whensampling cigars and pipe tobacco.’

There are some situations where a smaller sign (thestandard sign) may be displayed as an alternative tothe A5 statutory sign described above. A sign thatconsists only of the international no-smoking symbolin red and black with a minimum diameter of 70mmcan be displayed at entrances to smokefree premiseswhere:

• the entrances are located within other smokefreepremises that carry the A5 statutory sign at entrances,e.g. a shop within an indoor shopping mall; or

• the entrances are only for use by members of staff,provided that the A5 statutory sign is displayed on atleast one entrance to the premises.

The above descriptions are the minimumrequirements for no-smoking signs in smokefreepremises. Businesses are free to keep any pre-existingno-smoking signs in place where these areadditional to the minimum requirements. They canalso provide as much additional signage as they wishin whatever format and language they considerappropriate to inform people and supportcompliance. For example further signs may be

Compliance at smokefree premises

A business is considered to be complying withthe legislation if smoking is not taking place inenclosed or substantially enclosed workplacesor public places and the required signage isproperly displayed.

Regulatory officers will need to carry out anassessment to determine whether owners, occupiers,managers or any person in control of smokefreepremises are making reasonable efforts:

• to prohibit people from smoking on their premises,

• to prevent them from doing so, and

• to detect when breaches have occurred.

These efforts will include a combination of compliancewith specific legal requirements and activities whichrepresent good practice – see Appendix 4.

Signage for premises

All premises that are required by law to besmokefree will also be required to display theprescribed no-smoking sign at each entrancefor use by people. The detailed requirements areset out in the Smoke-free (Signs) Regulations 2007.

Signage must be displayed in a prominent positionand meet the following minimum requirements:

• be a minimum of A5 in area (210mm x 148mm);

• display the international no-smoking symbol in redand black with a minimum diameter of 70mm;

• carry the following words in characters that can beeasily read – ‘No smoking. It is against the law tosmoke in these premises.’

Substitute words can be used for ‘these premises’provided that they refer to the name and type of the


7 Application

appropriate in toilets and toilet compartments and atreception desks in public areas.

Signs that meet the requirements set out in theregulations are available to businesses free ofcharge. These are downloadable from theSmokefree England website atsmokefreeengland.co.uk

Note – it needs to be recognised that many premisesmay have been smokefree for a considerable period oftime even before the legislation came into force. Thebusiness owners may not have realised though thatthey are now legally required to display no-smokingsigns.

There are some establishments which comprise anumber of connected or separate buildings on asingle site, e.g. schools, universities, commercial andindustrial complexes. In such circumstances there maybe requests for a relaxation of the requirement for A5statutory signs on each and every public entrance.

It is suggested that where the complex of buildings islocated within a perimeter wall or other continuousboundary which effectively restricts access tocontrolled entrances then the following reducedsignage might be permitted:

• A5 statutory signs at the perimeter entrances as wellas at all principal public entrances e.g. the mainreception areas, public halls, catering and hospitalityareas; and

• standard signs at all other entrances.

However, where the complex of buildings is notlocated within a perimeter wall or other continuousboundary that restricts access (e.g. as with manymodern university campuses), then the normalrequirements should apply.

Good practice for premises

Appendix 4 contains further advice on goodpractice in various premises and circumstances.

Management controls

It is recommended that persons in control ofsmokefree premises:

• develop a smokefree policy (preferably in writingand in consultation with employees);

• adopt procedures (again, preferably in writing) fordealing with any people who smoke or attempt tosmoke within the premises;

• train staff in both the smokefree policy and thewritten procedures and their roles andresponsibilities for implementation;

• keep a written record of any incident wherean individual smokes on the premises incontravention of the legislation, together withthe action taken by any members of staff andthe outcome; and


ABOVE A5 statutory signLEFT Standard sign

Note: both contain theinternational no-smokingsymbol

www.smokefreeengland.co.uk

• for premises with exemptions, keep a written recordof any rooms designated as rooms in which smokingwill be permitted in accordance with the legalrequirements.

Smokefree policy and procedures

People who are in charge of smokefree premiseshave legal responsibilities to prevent people fromsmoking in their premises. It is stronglyrecommended that owners and managers establishand implement a written policy and procedures todemonstrate their compliance with the law.A sample smokefree policy is included in theDepartment of Health’s guide on the law that haspreviously been sent to all businesses, and can bedownloaded from smokefreeengland.co.ukThis can be adapted by businesses and organisationsfor their individual use.

The procedures for dealing with an individual whosmokes or attempts to smoke within smokefreepremises should include the following actions:

• draw the attention of the person to the no-smokingsigns in the area and inform them that they arecommitting an offence by smoking;

• politely ask them to stop smoking and offer them asafe method of extinguishing their smoking materials– alternatively direct them to the nearest place wherethey are able to smoke legally;

• advise the person smoking that their actions couldresult in them receiving a FPN as well as the person incontrol of the premises being prosecuted andreceiving a fine of up to £2,500;

• if the person continues to smoke then refuse themservice, if appropriate, and ask them to leave thepremises;

• if they refuse, implement the normal procedures fordealing with anti-social behaviour or unlawfulactivities on the premises;

• maintain a written record of all such incidents, theaction taken and outcomes; and

• if physical violence is threatened by the personsmoking, notify and/or seek assistance from the police.

The policy should identify the role of all members ofmanagement and staff who have responsibility for itsimplementation and review. Employers are to beencouraged to develop their smokefree policy incollaboration with staff and their representatives.

Staff training

Employers and managers should ensure that all staff,including new members of staff, are trained inrelation to the smokefree policy. The training for staffshould include:

• awareness of their responsibilities in dealing with anypersons smoking and those of other members of staffand managers;

• challenging assertively; and

• safeguarding personal safety.

Good practice would include reinforcing the policy onan ongoing basis as well as keeping a record of whichmembers of staff have received this training, whenthey received it and what it included.

Recording incidents

Where an incident of smoking has subsequentlybeen complained about to the regulatory officer itwill be important for the person in charge of thepremises to be able to demonstrate that appropriateaction was taken at the time. For that purpose adocumented record should be kept on the premisesstating:

• date and time of incident;

• where person was smoking;


www.smokefreeengland.co.uk

• action taken by staff (including name of staff member);

• outcome; and

• name (if known) and description of person who wassmoking.

Businesses should be encouraged to contact theirlocal council after any incident to inform them of theoccurrence. See Appendix 6 for example incidentrecording form.

Ashtrays and receptacles for smoking-related litter

Ashtrays and other such receptacles should notnormally be present inside smokefree premises exceptin designated bedrooms and designated smokingrooms where these are permitted in premises withexemptions. However:

• it may be appropriate for a suitable receptacle to bekept behind a reception desk, serving counter or barin order to safely extinguish any lit smoking materialsthat are discovered; and

• external bins and ashtrays may need to be broughtinto premises for cleaning or when they are closed forbusiness.

In some circumstances it will be advisable to providesuitable receptacles where smoking is permittedoutdoors and in areas that are not substantiallyenclosed in order to minimise smoking-related litter.Where this is the case, then it should be borne inmind that the siting of receptacles may welldetermine where people smoke and therefore carefulsiting may avoid obstructions of footways and thedrift of secondhand smoke into nearby buildings.There may be planning considerations if receptaclesare to be attached to external building walls,especially on listed buildings.

ENCAMS have produced a guide for businesses onreducing smoking-related litter. The guide can be

found at www.encams.org/uploads/publications/CigaretteLitterbr.pdf

Shelters

There is no legal requirement for owners ofpremises, managers of staff, or anyone else toprovide an outdoor shelter for their employees,customers or residents to smoke in.

See Appendix 7 for key issues in relation to shelters.

Smokefree vehicles

All vehicles that are legally required to besmokefree will also be required to display no-smokingsigns in each enclosed compartment of the vehicle inwhich people can be carried. The detailedrequirements are set out in the Smoke-free (Signs)Regulations 2007. As a minimum, the no-smokingsigns must include the no-smoking symbol in red andblack with a minimum diameter of 70mm (the samerequirements as for the ‘standard’ sign). The no-smoking signs must be displayed in a prominentposition and in each compartment. There is nodefinition of the term ‘prominent position’ butcommonsense indicates that the signs need to bevisible at all times by the occupants of thecompartment and should not therefore be easilyobstructed e.g. by the storage or luggage, or onwindows which can be opened.

A compartment includes each part of thevehicle which:

• is constructed or adapted to accommodatepersons; and

• is or may from time to time be wholly or partlycovered by a roof.

It is the legal responsibility of any person withmanagement responsibility for the smokefree vehicleto ensure that the required no-smoking signs are inplace.


www.encams.org/uploads/publications/CigaretteLitterbr.pdf

Most public transport is already smokefree and thereplacement of pre-existing no-smoking signs isconsidered unnecessary, as long as the basic no-smoking sign requirements are met.

There is also no wish to create conflict with thecurrent requirements for no-smoking signs in theother parts of Great Britain and Northern Ireland.Therefore signs that comply with the Scottish,Northern Irish and Welsh requirements wouldautomatically comply in England.

The Smoke-free (Exemptions and Vehicles) Regulationsset out that a vehicle that is used primarily for privatepurposes of a person who owns it or has a right touse it in a unrestricted way is not required to besmokefree.

The regulations do not say how ‘primarily for privatepurposes’ is to be interpreted. It is the responsibilityof the person who owns or uses the vehicle forprivate purposes to make the case that the vehicle isused primarily for private purposes as opposed tobusiness purposes. This could be demonstrated onthe basis of log books showing mileage, time usedand/or fuel used for either purpose.

Work vehicles that are used for work purposes bymore than one person must be smokefree. However,where a vehicle that is used for work by only oneperson is handed over to another person who willbe the only one who uses it for work (for example,because the employee originally using the vehicleleaves the company) then it could be reasonablyargued that the vehicle need not be smokefree as itwill continue to be used for work by only oneperson.

The Highway Code advises all drivers to avoiddistractions when driving, including smoking, andwhere smoking has contributed to the cause of anaccident, a driver might be considered to have drivenwithout due care and attention. There are furtherbenefits in making all work vehicles smokefree,including the fact that smokefree vehicles may have

higher re-sale values. There might be a situation aswell where a new employee might not wish to accepta vehicle in which the previous user had smoked.

A flowchart on decision-making in relation tosmokefree vehicles can be found in Appendix 8.

Where a suspected breach of the smokefree legislationtakes place in work vehicles that are from a companynot based in the officer’s council area then thatintelligence should be passed to the home/lead/primaryauthority for them to deal with as appropriate.

Appendix 4 sets out the process for local councils torequest details from the Driver and Vehicle LicensingAgency (DVLA) of the registered keeper of the vehiclein order to carry out investigations in connection withan offence or to prosecute an offence.

Public sector premises

Councils will be expected to make their ownarrangements to ensure compliance by their staff,members of the public and contractors whilst ontheir premises and working on their behalf.

To that end, the council should make a robuststatement that compliance with the smokefreelegislation is a strict requirement of all those actingon its behalf and that there may be consequences forpeople who breach the law:

• regulatory officers can issue other local councilofficers with FPNs in respect of smoking offences oncouncil premises or elsewhere;

• councillors who smoke in breach of the law can bereported to the Standards Board for England; and

• contractors can incur penalties for default and eventermination or non-renewal of contracts.

It is considered that all of the above are effectivemeasures and in addition, the council would expectthat all of its staff will comply with the law whilst at


work. Failure to comply with the law could possiblybring the council into disrepute and could also bedealt with under the council’s normal disciplinaryprocedures and incur the appropriate sanctions.

All central government and NHS buildings have beensmokefree since the end of 2006, meeting thecommitments the Government set out in the 2004White Paper Choosing Health. The MOD has taken adecision that their premises will be completelysmokefree. However, inspection, signage etc maydiffer slightly for MOD premises and vehicles.

The Prison Service has introduced strict controls onsmoking in prisons, which will apply to both publiclyand privately provided prisons. The Prison ServiceOrder has been implemented in all prisons since1 April 2007. Broadly, the Order requires all indoorareas to be smokefree, with the exception of cellsoccupied solely by smokers, and for arrangements tobe in place to minimise the dangers of exposure tosecondhand smoke.

Establishments or units holding prisonersunder 18 years of age must have an entirelysmokefree environment within their buildings.

All police premises and vehicles are required tobe smokefree. Holding cells within policestations are not prisons and do not become soeven when prisoners are being held in them.

Diplomatic premises

Diplomatic premises must be recognised as such bythe Foreign and Commonwealth Office (FCO), and adiplomatic note verbale is issued. Confirmation onwhether any premises has been classified as havingdiplomatic status can be obtained by contacting theProtocol Directorate FCO on 020 7008 1038.

Individuals with diplomatic status are expected tocomply with UK laws and regulations. However,premises with diplomatic status are inviolable,meaning that government officials cannot enter them

without the express permission of the head of mission(e.g. the Ambassador or High Commissioner).Diplomats also enjoy immunity from criminaljurisdiction. In practice, therefore, it will be difficult toenforce smokefree legislation in bona fide diplomaticpremises.

Exemptions

There are very few exemptions permitted by thesmokefree legislation and they are limited to specifiedareas in certain categories of premises, including:

• private dwellings;

• sleeping accommodation in hotels, guest houses,inns, hostels or members’ clubs;

• care homes and hospices;

• prisons;

• performers;

• specialist tobacconists;

• offshore installations and

• research and testing facilities.

Note – a time limited temporary exemption formental health units expired on 1 July 2008. From thatdate mental health units have been required to besmokefree in all enclosed or substantially enclosedareas without exception.

Definitions of what these exemptions mean are setout in the Smoke-free (Exemptions and Vehicles)Regulations 2007. In all cases there are particularconditions that must be met and regulatory officerswill need to be aware of these and assesscompliance with these when deciding whether anexemption has been properly implemented.Appendix 4 provides detailed explanations ofthese exemptions.



Regulatory officers have the following enforcementoptions available to them:

• verbal warning;

• written warning;

• FPN or legal proceedings against an owner, occupier,manager or any other person in charge of smokefreepremises for failing to display no-smoking signage(section 6(5) offence);

• FPN or legal proceedings against an individual smokingin smokefree premises (section 7(2) offence); and

• legal proceedings against an owner, occupier,manager or any other person in charge of smokefreepremises for failing to prevent smoking ina smokefree place (section 8(4) offence) – fixedpenalty is not available for this offence.

LACORS believes that the smokefree legislation specifiesa suitable range of enforcement options, from FPNsthrough to prosecution, and that therefore officersshould be considering these for use first before lookingto any other options such as simple cautions.

Councils are also advised against creating additionalquasi-legal procedures such as ‘warning notices’ asthese have been previously discredited.

There are no formal appeal provisions against theservice of a FPN. However, Part 4 of the FPN, as setout in the Smoke-free (Vehicle Operators and PenaltyNotices) Regulations 2007, relates to the making of arequest for a court hearing. Part 1 also allows for anamed contact in the council to be identified towhom the recipient can direct questions about theservice of the FPN. The council should appoint anappropriate person to be able to deal with suchquestions and, if appropriate, to decide upon thecancellation of the FPN.

As with all council enforcement measures, all actiontaken should be fair, proportionate and consistent

and decided upon with reference to the Regulators’Compliance Code (www.berr.gov.uk/bre/inspection-enforcement/implementing-principles/regulatory-compliance-code/page44055.html) and the enforcement policystatement of the particular council.

See Appendix 9 for a FPN guide.

Key points from successful prosecutions

There have been a number of prosecutions, primarilyagainst the operators of licensed premises, hospitalitypremises and shisha bars for failing to preventsmoking taking place. Virtually all have had successfuloutcomes in that convictions have been secured andsubstantial financial penalties, including costs, havebeen awarded.

In addition, some offenders have been reprimandedby the Courts where it has been shown that theyhave intentionally failed to prohibit smoking on theirpremises, or have been careless as to whethersmoking takes place, or through their publicstatements have created an environment in whichpeople would be likely to believe that they couldsmoke without restriction. Although suchstatements cannot be quoted in evidence and arenot binding on future judgments, they do providean indication of how the Courts viewed theinformation provided in the course of particularprosecutions.

The following general points can be made:

• the legal requirements are sufficiently concise foroffences to be clearly demonstrated;

• no ‘gaps’ or loopholes have been revealed in the legalrequirements, the required procedures or theirapplication;

• the use of the defences is extremely limited and,where claimed, rebuttal appears to be astraightforward matter of evidence; and

8 Enforcement action


• to date there have been no successful defences orappeals based on claims of infringements of humanrights legislation.

Some councils have included within their prosecutionstatements:

• a brief explanation of the purpose of the smokefreelegislation;

• the need for universal compliance by businesses inorder to maintain the level trading field;

• the extent of national and local publicity which itcould reasonably be anticipated that businesseswould have received as well as recorded advisory visitsand deliveries of printed information; and

• either that exemptions do not apply to the business,or that the specific requirements for the exemption tobe claimed have not been met.

Convictions are most likely to succeed where:

• smoking has been observed on more than a singleoccasion;

• it can be demonstrated that the person responsible,or their staff, observed that smoking was taking placeor could be reasonably expected to have done so;

• it can be positively confirmed that it was smokingthat was taking place and not simply the handling ofunlit smoking materials, or the simple extinguishingof them, or the use of so-called ‘electronic smokingproducts’; and

• that the person in control had previously beenmade aware that it had been alleged ordemonstrated that smoking was taking place on theirpremises.

In addition to the evidence of smoking taking place,the Courts have also indicated that they are takinginto consideration the following matters:

• the number of occasions on which the council is ableto demonstrate that information and advice on thesmokefree requirements have been provided to theperson in control;

• the failure by the person in control to take actionafter the receipt of such information and advice;and

• public statements made by or on behalf of the personin control:

• that they do not agree with or support thesmokefree legislation;

• that they are actively campaigning against it; or

• that they do not intend to do anything more thansimply inform people that they should not smoke.

Officers of LACORS and the CIEH are continuing toclosely monitor prosecutions and may be able toprovide information on trends, levels of fines andcosts, etc but not of course advice to councils inpreparing their own cases. Of particular interest arethose cases brought against repeat offenders whichtest the ability of the council to secure penaltiesprescribed in the legislation which will act as adeterrent against further offending as thisinformation may be used to inform responses tofurther consultations by the Government.

Figure 1 sets out the enforcement flowchartfor the offence of failure to display correctno-smoking signage The policy adopted by acouncil for signage penalties should recognise this asa technical infringement and should perhaps continuewith the educational approach for longer than mightnormally be the case before taking enforcementaction. It should be borne in mind that manybusinesses have been smokefree for a considerableperiod of time and may not realise the need tocontinue displaying signs. It may also be the case thatthe signage has been removed and not been replacedrather than never provided in the first place. However


where advice has been given and a proprietor isclearly not complying then a FPN should be served.

Figure 2 sets out the enforcement flowchartfor the offence of smoking in a smokefreeplace There are practical difficulties in takingeffective enforcement action against an individualsmoking in smokefree premises or vehicles (i.e.serving a FPN). Therefore, as an initial stage theregulatory officer might wish to be satisfied that theowner, occupier, manager or any other person incharge can demonstrate that all reasonable stepshave been taken to prohibit individuals from smokingon their premises and to detect and deal with illegalsmoking when it does occur. (For guidance onmanagement controls and signage, see Section 7 onApplication). To ensure that enforcement actionagainst individuals smoking in a smokefree premisesor vehicle is effective, councils could considertargeting individuals as part of a pre-arrangedprogrammed activity, organised in liaison with localpolice officers to give support if necessary. Regulatoryofficers are advised to organise any such activitieswith their local police service well in advance in orderto ensure that the work coincides with the availabilityof police resources. The programmed activity shouldbe focused on premises which have demonstratedthat all reasonable steps have been taken and that,despite these efforts, certain individuals continue tosmoke in smokefree places.

See Section 6 on inspections in relation to RIPA. Ifregulatory officers experience a situation where theperson they wish to serve with a FPN does notprovide their name and address on request, then theofficer should advise the person that such a refusalconstitutes an offence of obstruction under theHealth Act 2006 for which they may be prosecuted.Further action at this time may not be possible,however a detailed description of the individual mayenable subsequent identification and the serving ofan FPN at a later date.

It should be noted that there is no restriction on thetime lapse between the commission of the offence

and the service of the notice but if there is any delayit will need to be justified. Officers will also need tobe aware that the statutory limitation of six monthswill still apply for undertaking summary proceedings.

The six months begins from when the offenceoccurred not from when the FPN is served.

Figure 3 sets out the enforcement flowchartfor the offence of failing to preventsmoking in a smokefree place Councils shouldconsider initiating legal proceedings against owners,occupiers, managers or other persons in charge ofsmokefree premises or vehicles only after repeatedefforts to secure compliance with the legislation orwhere there have been serious or persistentcontraventions.

Regulatory officers should therefore initially take aneducational and non-confrontational approachwherever possible. As an initial stage the regulatoryofficer might wish to be satisfied that the owner,occupier, manager or any other person in charge candemonstrate that all reasonable steps are being takento prohibit individuals from smoking on theirpremises and to detect and deal with illegal smokingwhen it does occur. (For guidance on managementcontrols and signage, see Section 7 on Application).

Fixed Penalty Notices

Word® and PDF versions of the FPNs for use bycouncils are available on the LACORS website atwww.lacors.gov.uk The regulations make provisionfor councils to adapt the penalty notices to suit theirown requirements in certain ways (i.e. addingadditional information about payment and includingthe council logo, etc), but councils are advised tocheck the regulations before making any suchchanges.

Monies from FPNs served

The Department of Health has been in discussion withthe Treasury on the issue of recovering fine revenue


from councils and may pursue this policy if it ispracticable to do so and there is a simple mechanismfor doing so. However, the message to councilscontinues to be that enforcement of smokefreelegislation should follow a ‘light-touch’ approach,with enforcement measures used only as a last resort.Therefore, it is expected that little revenue will begenerated by this legislation and can reasonably beutilised by councils to offset their enforcement costs.

As stated in the overall approach, councils shouldtake an educational approach in the first instance butat a certain point this should be reinforced through astronger enforcement approach. There may beinstances where regulatory officers may find smokingtaking place in the same premises on severaloccasions. It would therefore be a matter to raisewith management about the controls they have inplace – therefore use Figure 3. Alternatively officersmay come across the same individual either at thesame premise or different premises who refuses tosmoke outside, at which point it may be appropriateto serve an FPN on the individual.


Commend goodpractice and discuss any

improvements with proprietor(e.g. additional signage)

First visitLegislation complied with?

Following visitLegislation complied with?

Advise what isrequired and

provide or directto signage

YES

Issue verbal warning andconfirm in writing


Serve FPN

Begin legal proceedings


Figure 1 Enforcement flowchart – failure to display correct no-smoking signage

NO

NO

NO

YES

YES

YES NOMINOR

NON-COMPLIANCE

BLATANTNON-COMPLIANCE NO


Commend goodpractice and discussany improvements

with proprietor



Issue verbalwarnings to boththe proprietor and

the individual

YES


Figure 2 Enforcement flowchart – smoking in a smokefree place

NO

Serve FPNto appropriate person

YES

NO

YES NO

NOGO TO FIGURE 3

IN THE CASE OFA PERSISTENTOFFENDERBEGIN SUMMARYPROCEEDINGS


Commend goodpractice and discussany improvements

with proprietor



Issue verbalwarning and

confirm this inwriting

YES


Figure 3 Enforcement flowchart – failure to prevent smoking in a smokefree place

NO

Non-compliance –issue final warning

YES

NO

YES

Ongoing non-complianceBegin legal proceedings

NO

Co-ordination of council services

Many indirect issues arise from the implementation ofthe smokefree legislation that will involve inputs from,and co-ordination between, several council serviceareas. These issues include noise pollution, planningand building control, licensing provisions andmanagement of the street scene. Councils areexpected to demonstrate a corporate approach fromall council services so as to ensure that messages tobusinesses and the public are comprehensive andconsistent.

LACORS has produced an associated issues documentand this can be found at www.lacors.gov.uk/lacors/home.aspx?docID=15957&docType=C

Staffing arrangements

Council staff with regulatory responsibilities forsecuring compliance with the smokefree legislationmust be provided with the correct authorisation anda valid means of identifying themselves.

Database

It is likely that there will be a need to make changesto the council’s regulatory premises database toincorporate the additional and wide range of premisescovered by smokefree legislation. Some types ofpremises will not have been previously subject toinspection by council staff and there will therefore beno information on history, plans, key contacts, etc.Councils may need to work with other agencies todevelop their database to record compliance withsmokefree legislation e.g. HSE enforced premises.

Smokefree legislation also applies to a wide range ofvehicles and there may be a need to work with otheragencies to obtain information about the numbersand types of vehicles and fleet operations in the localarea. For example, information about the vehiclesoperated by haulage companies, minicabs, taxi firmsand other public transport systems, especially wherethe registered office is based locally.

Recording and reporting on activities

The activities of councils in relation to securingcompliance with the smokefree legislation need to beproperly recorded and collected by Local GovernmentAnalysis and Research (LGAR). Data is being used bythe Department of Health to provide assurance aboutthe work of the enforcing authorities and the level ofcompliance as a way of understanding the success ofthe new law. The data is also being proactively used forcommunication reasons on the work of enforcingauthorities and the level of compliance. Data collectionon smokefree activity will continue until 2010.

Individual councils can also use the data locally toshow how well businesses are doing in their area incomparison with national figures and to continue toget messages to businesses and the public aboutwhat they need to do.

Home authority, lead authority andprimary authority schemes

It may be appropriate for the council with the leadcontact with a large/multi-site organisation to discusswith the company their smokefree policies and theirapproach to ensuring compliance with the smokefreelegislation. This will be especially important forbusiness involved with public transport, peripateticworkers and work vehicles.

Complaint handling

To assist compliance, a freephone National SmokefreeCompliance line is available. Call centre operatorshave been trained to understand the basics of thelegislation and to identify offences. This information isforwarded to an identified person within eachcouncil. The number to call is 0800 587 1667.

Contacts with the line comprise the following:

Requests for advice Even where advice materialhas been received it may not be well understood andenquirers will also want to know how the legislation


9 Operational procedures and data collection

www.lacors.gov.uk/lacors/home.aspx?docID=15957&docType=C


applies in their particular circumstances. Theseenquiries should be resolved fairly quickly as enquirersreceive clarification and follow-up advice.

Hoax calls Some people will want to continue to testthe system to see if complaints are dealt with seriously.

Complaints of non-compliance These may wellprovide useful intelligence which would not easily beobtained by other means. Whilst in themselves theydo not constitute evidence of any offence, they willneed to be followed-up in order to substantiate theallegation or otherwise.

Councils will deal with all complaints, including thosefrom the National Smokefree Compliance Line, inaccordance with their existing corporate complaintprocedure and the usual data protection policies thatapply.

There may be complaints which fall outside the scopeof the legislation. For example, where smoking istaking place on the pavement outside a window andthe secondhand smoke is blowing back into the room.It is beyond the scope of this document to provideguidance on how such matters should be dealt with.

Councils will also need to ensure that they are able torespond effectively to any complaints in relation tooffences committed by their own staff i.e. by having asuitable policy and internal disciplinary procedures inplace.

Administration of exemptions

There is no requirement for a business owner, oranyone else:

• to make use of the exemptions permitted under thesmokefree legislation; or

• to seek consent from the council, or even toprovide notification that use is being made of anexemption.

It will therefore be important that councilsrecord details of any exemptions in place that itsofficers become aware of, the nature and extent ofthe exemption, and the manner in which thespecific conditions attached to exemptions arebeing met. This information will assist in thefollowing ways:

• ensuring future compliance with the conditions ofexemptions;

• responding to future applications for alterations tothe premises, change of use, etc;

• prioritising proactive visits;

• responding to complaints; and

• ensuring consistency of approach.

In relation to the latter point, it will be importantfor staff to be able to ensure that the requiredstandards are consistently met in relation to thespecific conditions attached to exemptions. Thiswould be best addressed by the adoption of acouncil policy setting out its required standards,based on this guidance and other referencematerial (see Appendix 3).

Training

An online training resource for all officers engagedin smokefree legislation activities is available throughTS Desk Companion, an e-learning product providedby the Trading Standards Institute.www.tsi.org.uk/tsdesk

In addition, as this work might on occasionsbecome confrontational, staff could be supportedwith additional training on assertive behaviourand awareness of personal safety including whenworking alone and out of normal office hours.


Appendix 1 Definitions

ABOVE An example ofsubstantially enclosed premises

ABOVE An example ofnon-substantially enclosed premises

These definitions are set out in full in thesmokefree regulations.

Authorised officer

This means any person (whether or not an officer ofthe council) who is authorised by it in writing, eithergenerally or specifically, to act in matters underChapter 1 of the Health Act 2006, Smoke-freePremises, Places and Vehicles.

Compartment

This includes each part of the vehicle which:

• is constructed or adapted to accommodate persons;and

• is or may from time to time be wholly or partlycovered by a roof.

Council

By using the term ‘council’ in this guidance we meanall authorities defined by the Smokefree (Premises andEnforcement) Regulations 2006 as enforcementauthorities.

‘Enclosed’ and ‘substantially enclosed’premises

Premises will be considered to be enclosed if theyhave a ceiling or roof and, except for doors, windowsor passageways, are wholly enclosed, whether on apermanent or temporary basis.

Premises are substantially enclosed if they have aceiling or roof, but there are permanent openings inthe walls which are less than half of the total areasof walls, including other structures which serve thepurpose of walls and constitute the perimeter ofpremises. When determining the area of an opening,no account can be taken of openings in which doors,windows or other fittings that can be open or shut.This is known as the 50 per cent rule.

A roof includes any fixed or movable structures,such as canvas awnings. Tents, marquees orsimilar will also be classified as enclosed premises ifthey fall within the definition.


International no-smoking sign

The term ‘international no-smoking sign’ is generallyunderstood by the public and by businesses asmeaning the symbol as described in the regulations.There are slight variations on this around the world,for example the cigarette sometimes points in theopposite direction, or the representation of the smokeis slightly different.

No-smoking symbol

A symbol which consists solely of a graphicrepresentation of a single burning cigarette enclosedin a red circle of at least 70 mm in diameter with ared bar across it.

Private vehicle

See regulation 11(5) of the Smoke-free (Exemptionsand Vehicles) Regulations 2007 – this means a vehiclewhere is it used primarily for the private purposes of aperson who:

• owns it; or

• has a right to use it which is not restricted to aparticular journey.

Smoking

Refers to smoking tobacco or anything whichcontains tobacco, or smoking any other substance,and includes being in possession of lit tobacco or ofanything lit which contains tobacco, or being inpossession of any other lit substance in a form inwhich it could be smoked. This includes smokingcigarettes, cigars, herbal cigarettes and pipes(including water pipes, shisha and hookah).

Work

The term ‘work’ includes voluntary work.


RTPM contact details

Contact details for Regional TobaccoPolicy Managers can be found atwww.dh.gov.uk/en/Publichealth/Healthimprovement/Tobacco/DH_089018

Support available for anyone who wants tostop smoking

It is estimated that 70 per cent of smokers want togive up smoking, and the smokefree law mightprovide them with an extra reason and additionalopportunities to do so. If businesses would like tohelp staff and customers become non-smokers, thereis excellent free support available from the NHS. Thisincludes:

Local NHS stop smoking services

To find your local service:

• call the NHS Smoking Helpline free on0800 022 4 332 (lines are opendaily from 7am to 11pm);

• visit www.smokefree.nhs.uk (This is an onlineresource for all the advice, information and supportneeded to stop and stay stopped, including details ofthe support programme ‘Together’ which is free tojoin, and is designed to help individuals stop smokingusing both medical research as well as insights fromex-smokers. You can choose to receive emails, textmessages, mailing packs and phone calls); or

• ask at your local GP practice, pharmacy or hospital.

Employees

Employees can speak to their local NHS Stop SmokingService about support for their employees during oroutside working hours.

Guidance from the National Institute for Health andClinical Excellence (NICE) advises employers on how to

Appendix 2 RTPM contact detailsand smoking cessation information

help employees stop smoking. Visitwww.nice.org.uk for more information.

Useful links

Lifting the smokescreen: 10 reasons for a smoke freeEuropehttp://dev.ersnet.org/uploads/Document/46/WEB_CHEMIN_1554_1173100608.pdf

www.dh.gov.uk/en/Publichealth/Healthimprovement/Tobacco/DH_089018

http://dev.ersnet.org/uploads/Document/46/WEB_CHEMIN_1554_1173100608.pdf


Appendix 3 Evidence of health effects

The smokefree legislation was introduced to protectemployees and the public from the harmful effects ofsecondhand smoke. Secondhand smoke is a serioushealth hazard, and there is no safe level of exposure.Every time someone breaths in secondhand smoke,they breath in over 4,000 chemicals. Many are highlytoxic. More than 50 are known to cause cancer.Medical and scientific evidence shows that the peopleexposed to secondhand smoke have an increased riskof medical conditions such as lung cancer, heartdisease, asthma attacks, childhood respiratory disease,sudden infant death syndrome (SIDS) and reducedlung function.

The health case for this legislation is clear: makingenclosed workplaces and public places smokefree willprovide protection from a range of serious medicalconditions. This is because exposure to secondhandsmoke, in the long term, increases the risk of a non-smoker developing lung cancer and heart disease byaround 25 per cent, and in the short term – after just30 minutes – the blood becomes stickier increasingthe risk of blood clots and stroke. There are over fivemillion people with asthma in the UK and 80 per centfind that secondhand smoke worsens their symptomsand can trigger asthma attacks.

Scientific evidence also shows that ventilation doesnot eliminate the risks to health from secondhandsmoke in enclosed places. The only way to provideeffective protection is to prevent people breathing inthis smoke in the first place. This is why theGovernment has introduced the smokefree laws. It isestimated that the required prohibitions on smokingwill save thousands of lives over the next decade, andhelp create cleaner and healthier environments foreveryone to work in or visit.

• Secondhand smoke contains over 4,000chemicals – over 50 are known to cause cancer

• Around 85 per cent of secondhand smoke isinvisible and odourless

Research undertaken by the Department of Health,and in Northern Ireland shows that there have alreadybeen improvements in the health of employees whowork in premises where smoking was previouslyprevalent.

The Smokefree England – One year on report containsa summary of the interim findings of the ‘SmokefreeBars 07’ study. This is a collaborative study by theUniversity of Aberdeen, the Institute of OccupationalMedicine, and Liverpool John Moore’s University, andforms part of the programme of academic researchcommissioned by the Department of Health toevaluate the impact of smokefree legislation inEngland.

In the 52 bars that were visited, both before and afterthe legislation came into force, there was a fall in theaverage level of some 91 per cent of secondhandsmoke indicating substantial improvements in the airquality in bars.

The full report can be found atwww.smokefreeengland.co.uk/files/smoke-free-bars-07-200508.pdf

You can find out more information about the newlaw on the Smokefree England website atwww.smokefreeengland.co.uk

For further information seewww.smokefreeengland.co.uk/files/smokefreeis-needed-fact-sheet-final—30.11.pdf

www.smokefreeengland.co.uk/files/smokefreeis-needed-fact-sheet-final%E2%80%9430.11.pdf


Within this appendix of advice and good practice,actual requirements are indicated in black text.

A General requirements

A1 Designation of non-smokefree rooms

If a designated room does not meet the requiredconditions and people are permitted to smoke in itthen an offence will have been committed. The adviceto the persons in control of such premises shouldtherefore be that the council should be consulted onthe suitability or otherwise of individual rooms beforethe decision is made on designation.

Further information about designated roomrequirements can be found in sections B3 and B4 inthis appendix.

A2 General duty of care under Health andSafety at work (HSW) etc Act 1974

The employer of staff who are expected to carry outwork in designated rooms will still have a generalduty of care under the HSW Act. The employer shouldconsider what needs to be done to minimise exposureof the employee to secondhand smoke or to mitigateits effects upon the employee – for example:

• by specifying the time periods during which thedesignated room will be available for use; or

• by stipulating when the room must be vacated eachday in order to allow sufficient time for the room tobe ventilated prior to cleaning and housekeepingactivities to be carried out.

The general duty of care under the HSW Act alsoapplies in relation to the construction and use ofsmoking shelters.

In most cases the siting and construction of theshelter will have been carried out so as to ensure anadequate level of natural ventilation which willremove and help to prevent the build up of

Appendix 4 General requirements,exemptions and good practice

secondhand smoke. However, in circumstances wherethe shelter is sited or constructed in a manner thatsecondhand smoke is not effectively removed anddoes build up, then the employer of staff who areexpected to carry out work in a smoking shelter (e.g.servicing and cleaning) should consider what needs tobe done to minimise exposure of the employee tosecondhand smoke or to mitigate its effects upon theemployee – for example:

• by specifying the time periods during which thesmoking shelter will be unavailable for use; or

• by stipulating that staff will not normally carry outservicing and cleaning and that failure to use thefacility safely, e.g. avoiding spills, clearing tables andreturning empty glasses, may result in its closure.

A3 Ventilation of designatednon-smokefree rooms

In general, the most effective method of ventilation islikely to be through openable windows to the externalair. Therefore the advice of the council may be:

• that rooms which do not have windows which arecapable of being opened fully in accordance with therecognised standards of building construction shouldnot be used as designated non-smokefree rooms;

• that windows in a room intended to be designated asa non-smokefree room should be fully openable;

• in respect of windows where restrictors or othersecurity measures are considered to be necessary, therequirement should be that any restrictors can bereleased by an adult occupant or house-keeping staff;and

• where rooms in upper stories are to be designated asnon-smokefree rooms and the windows have openingrestrictors attached in order to prevent falls fromheight, then businesses will need to consider all risks.


B Exemptions

B1 Private dwellings

These requirements are intended to achieve a balancebetween allowing people to smoke in their ownresidential space and protecting others from exposureto secondhand smoke.

The following parts of a private dwellingare required to be smokefree – any parts ofa dwelling which are used solely as a placeof work for:

• more than one person who does not live atthe dwelling;

• a person who does live at the dwelling andany person who does not; or

• any person whether they live at thedwelling or not, if people who do not live atthe dwelling come to give or receive goodsor services.

The general principle is that the person living in thedwelling is free to decide whether the premisesshould be smokefree or not, unless the dwelling isalso used for work purposes by others or visited bythe public (note the person may be an employedhome worker and they may work with someone elseif they all live in the dwelling house).

The effect of this requirement is that the exemptioncan only be claimed by a self-employed personworking at home alone and where clients or membersof the public are not admitted. It is considered thatthese conditions will rarely apply.

Visited by the public means at any time that thepremises are being used for work purposes – i.e.when they are open for business.

In respect of premises which are only open to thepublic for limited specified periods and which are not

otherwise a workplace e.g. ‘stately homes’ then therequirement to be smokefree only applies for thatperiod.

The following parts of a private dwellingare required to be smokefree:

• any parts of premises that are used incommon by more than one premise and areused as a workplace by more than oneperson or is a place that is open tomembers of the public.

This requirement can apply both to self-containeddwellings within a single structure as well as tohouses in multiple occupation (HMOs), halls ofresidence, nursing homes, etc.

The areas that may be required to be smokefreecould include:

• common entrance areas such as halls, corridors,stairwells and lifts in blocks of flats;

• facilities shared by the occupants of more than onehousehold such as communal kitchens, bathrooms orlaundry rooms in halls of residence; or

• the ‘common parts’ of an HMO which would includeany kitchens, bathrooms or living/dining areas thatare shared by more than one household;

but only where the area or facility is used as aworkplace by more than one person or they areopen to members of the public – see below forspecific guidance on these points.

The greatest area of confusion appears to bewhere housing accommodation is in shared use,either as an entire property, or lettings within theproperty.

There is no legal definition of a ‘shared house’.However LACORS has issued guidance for thepurposes of determining fire precautions within


HMOs – www.lacors.gov.uk/lacors/ContentDetails.aspx?id=19843 (see section 35).

This states that shared housing exists where theproperty has been rented out by an identifiable groupof sharers such as students, work colleagues orfriends as joint tenants. Each occupant normally hastheir own bedroom but they share the kitchen, diningfacilities, bathroom, WC, living room and all otherparts of the property. All the tenants will haveexclusive legal possession and control of all parts ofthe property, including all the bedrooms. There isnormally a significant degree of social interactionbetween the occupants and they will, in the main,have rented out the accommodation as one group.There is a single joint tenancy agreement. Insummary, the group will possess many of thecharacteristics of a single family household, althoughthe occupants are not all related.

LACORS believes that this is a helpful definition tomake reference to in relation to the requirements ofthe smokefree legislation in that, in suchcircumstances as described above, it would bereasonable to expect the occupants to negotiate andagree arrangements for permitting and restrictingsmoking – as they would need to do in relation toother matters, including housekeeping arrangementsand bill payments.

Place of work

The question of whether the common parts are usedas a place of work by more than one person will be aquestion of fact and degree. So, for example, itwould be appropriate to discount work which by itsnature means that entry to the common parts isirregular and ad-hoc; e.g. parcel deliveries, fast fooddeliveries, supermarket shopping deliveries, houseremoval firms, estate agents, etc. The kind of workwhich will need to be taken into account is workwhich is regular and frequent such as cleaners,porters, security guards, etc, who are specificallyemployed to work in the common parts of theresidential property.

Where there is only one such person employed thenthe provision of a second person on a temporarybasis to cover a period of sickness absence or holidaymight be discounted.

In addition to people specifically employed by theowner, landlord or property manager to work in thecommon parts of the building, there may also beother employees who use the common parts as a‘place of work’. For example, daily postal or milkdeliveries to individual units of accommodation whichmay necessitate people walking through the commonparts of the building.

Open to the public

Some buildings containing housing accommodationhave entrances that provide unrestricted access to thepublic. However, LACORS believes that in situations,where locked street-door or entry-phone access exists,that this might not constitute ‘open to the public’because the occupier’s private property extends to theshared front door and access beyond this has to bepermitted by the occupants.

There is no restriction on people smokingin any part of their private dwellings usedfor work, if the work is undertaken solely to:

• provide personal care for someone living inthe dwelling;

• assist with the domestic work of thehousehold in the dwelling;

• maintain the dwelling; or

• install, maintain or remove any serviceprovided to the dwelling for the benefit ofpeople living there.

This exemption means that there is no requirementto be smokefree whilst there is a nanny, cleaner, carer,builder or service engineer present. However, thehouseholder and person providing the service should

be encouraged to come to an agreement aboutwhere and when smoking can take place.

The employer of staff carrying out work in privateresidential accommodation will still have a generalduty of care under HSW Act. Therefore:

• where the contract of employment providesaccommodation within the home of the employer itwould be sensible for the smokefree status of theaccommodation, or different parts of theaccommodation, to be specified; and

• where the employed person is required to visit, attendor carry out services or treatments for a person intheir own home, then the employer should considerwhat needs to be done to minimise exposure of theemployee to secondhand smoke or to mitigate itseffects upon the employee.

The Trade Union Congress (TUC) has developedguidance specifically for people who visit clients intheir homes, available atwww.smokefreeengland.co.uk/files/guidance-for-people-working-in-the-home.pdfComprehensive guidance has also been issued by theRoyal College of Nursing, available atwww.rcn.org.uk/publications/pdf/protecting_community_staff_smoke.pdf

B2 Accommodation let for temporary orholiday use

There is no restriction on people smoking inself-contained residential accommodationfor temporary or holiday use such as aholiday cottages, caravans, lodges or flats solong as it is rented in its entirety for privateresidential use, as well as any other structuressuch as garages or sheds that are for theexclusive use of persons living in the dwelling.

It is important that potential hirers are clearly advisedat the time of booking on the smokefree status of theaccommodation they intend to occupy.


Owners may choose to require their premises to besmokefree and these regulations will not affect theirright to require this. As a deterrent, the owner mightwish to retain a deposit against cleaning a propertyshould smoking in contravention of the condition ofthe hire have taken place. In order to comply with theUnfair Terms in Consumer Contracts Regulations1999, the amount of such a deposit should not bemore than the costs of the cleaning.

B3 Sleeping accommodation in hotels, guesthouses, inns, hostels and members clubs

In hotels, guest houses, inns, hostels ormembers’ clubs designated bedrooms neednot be smokefree if they are designated assuch in writing by the person in charge.

Each designated bedroom has to meetspecified requirements in relation toventilation, separation and signage (seetable of requirements for designation ofrooms for smoking).

A designated bedroom cannot be adormitory, or other room foraccommodation that is made availableunder separate arrangements for persons toshare at the same time.

See general advice notes A1, A2 and A3.

The person in control of the premises must designatethe bedrooms in writing and it is good practice forthat person to prepare a list of designated bedroomsthat can be produced for inspection when requestedby the regulatory officer.

The only rooms which can be designated are bedroomsand not other parts of a suite or rooms which are usedin common with other bedrooms or in other parts ofthe building, even if all bedrooms are designated.

In deciding upon the proportion of bedrooms inwhich to permit smoking, the person in charge needs

www.rcn.org.uk/publications/pdf/protecting_community_staff_smoke.pdf


to be aware that less than a quarter of the populationsmoke and many people who do smoke will prefersmokefree bedrooms.

Businesses are free to decide for themselves when tochange the designation of bedrooms. However, theywill have to take into account the impact onchanging the designation of bedrooms from smokingto smokefree and vice versa because:

• the bedroom will need to meet designated roomstatus;

• the signage for the room will need to be changed;

• the list of bedrooms designated as smoking roomswill need to be updated; and

• there may be extra cleaning costs.

In effect this means that, although the designation ofbedrooms could be changed on a daily basis, from apractical point of view if a bedroom changes frombeing smoking one day to smokefree the next –unless there is an effective method of cleaning theroom – it is likely that a non-smoking guestoccupying a previously designated smoking bedroomwill complain about the smell, at the very least.

Designated bedrooms are intended only to be used byguests and not by staff who wish to smoke.

B4 Accommodation in care homes andsecure institutions

In care homes, hospices and prisons thatprovide residential accommodation –designated bedrooms, or designated roomsused only for smoking (designated smokingrooms), need not be smokefree if they aredesignated as such in writing by the personin charge.

The designated rooms can only be used bypersons over the age of 18 years.

Each designated bedroom or designatedsmoking room has to meet specifiedrequirements in relation to ventilation,separation and signage (see table ofrequirements for designation of rooms forsmoking).


A designated smoking room should be provided onlyfor that singular purpose and it is advisable thereforethat it does not contain any recreational equipmentor material or furniture, other than that necessary tomeet the mobility needs of individuals whilst they areusing the room to smoke. In addition, ‘designatedrooms’ must always meet the requirements set out inregulation 5 of the Smoke-free (Exemptions andVehicles) Regulations 2007.

Designated smoking rooms are intended to beprovided for the use of residents only, however theSmoke-free (Exemptions and Vehicles) Regulations2007 do not specify who exactly may and may notuse them. The provisions in the Health Act 2006 arefor places of work to be smokefree, so there is anexpectation that employees in these premises will notsmoke anywhere in the premises.

However, while it is probably not unlawful foremployees to smoke in designated smoking rooms(and therefore, it is unlikely that enforcement actionwould be successful), councils should encouragemanagers of exempted premises to institutesmokefree policies requiring employees to smokeoutdoors, for the health of residents and othermembers of staff, and to best meet Health and Safetyat Work legislation.

Care homes are encouraged to discuss theirarrangements for the designation of rooms forsmoking with councils. Where the resident-basewithin a care home is mobile, managers should beencouraged to create suitable (and if need be, secure)outdoor smoking facilities, to move smoking outdoorsentirely.


Hospices, like care homes, can have both designatedbedrooms and designated smoking rooms.

B5 Performers

Persons participating in a performance arenot to be prevented from smoking if theartistic integrity of the performance makesit appropriate for that person to smoke.

The parts of premises in which a personperforms need not be smokefree in relationto that person only during the time of theperformance.

This exemption does not extend torehearsals or to persons other than theparticular performer who should beidentified in the script.

If a performer smokes in smokefreepremises when the artistic integrity of theperformance does not require smoking totake place, then both the performer and anyperson that controls or manages thepremises could be committing an offence.

The single test of whether someone can smoke onstage is based on the ‘artistic integrity of theperformance’. This a matter most properly decided bythe director of the production, or the person withoverall responsibility for the management of theperformance or the venue. Therefore the councilmay wish to request from the director or manager ofthe production or venue, in advance of theperformance taking place, justification of the claim of‘artistic integrity’ as well as details of when smokingwill take place, in what form, by whom and for whatperiods.

The council may also wish to determine in advance thesafety measures which will be in place including:

• the means of extinguishing lit materials – this couldbe requested in the form of a risk assessment;

• the means of alerting the public that smoking will betaking place during the performance – this couldinclude signs on the entrance doors to theperformance area and at the points of sale foradmission fees and tickets; and

• that in all other respects the arrangements forsecuring compliance with the smokefree legislationare in place and robust.

The absence of any definition of ‘performance’ andof criteria for determining ‘artistic integrity’,together with the obvious conflict between opinionsabout ‘artistic integrity’ and the rights of employeesto smokefree workplaces, will ensure that there willbe disagreements about whether smoking should beallowed or disallowed. It has not been possible toidentify any clear guiding principles for local councilsto take into account in determining these mattersand it will be necessary for each case to be decidedon its merits. Councils may be of the opinion thatthey do not need to accept at face value thatinclusion in the script of a direction to smoke issufficient in itself and they may wish to be providedwith an explanation of the contribution that theaction of smoking is intended to make to ‘artisticintegrity’.

In reaching their decision, councils may wish to takethe following points into consideration:

• the possibility of advising the use of so-called ‘stagecigarettes’ which can simulate smoking without theuse of any lit smoking materials;

• whether the script requires simply the demonstrationof ‘lighting-up’ (i.e. that the character smokes) orwhether a prolonged period of smoking can bejustified; and

• whether repeated and prolonged periods ofsmoking can be justified, since by their nature thesewill increase the level of exposure and subsequentrisk to other performers, members of staff and thepublic.


Councils may take the view that the nature of thevenue is a significant factor to be taken into accounte.g. when a performance is to take place on schoolpremises, or in healthcare facilities, or in otherworkplaces which are normally required by thelegislation to be maintained smokefree.

This issue may arise with performers in public housesand other hospitality sector premises as well as publichalls, etc and it should be raised with the managersof such premises when discussing smokefreerequirements in general.

B6 Specialist tobacconists

Specialist tobacconists need not besmokefree for the time they are used forpersons sampling cigars and pipe tobacco.

Specified requirements similar to those for adesignated smoking room have to be met inrelation to ventilation, separation andsignage (see table of requirements fordesignation of rooms for smoking).

The Smoke-free (Exemptions and Vehicles) Regulations2007 set out that the shop of a specialist tobacconist(that meets the requirements of the TobaccoAdvertising and Promotion Act) is exempt fromsmokefree legislation during the time people aresampling cigars or pipe tobacco (includingwaterpipe tobacco), provided that it also meets theconditions required within regulation 7 of the Smoke-free (Exemptions and Vehicles).

Specialist tobacconists are defined in section 6(2) ofthe Tobacco Advertising and Promotion Act 2003.

These shops are small in number and are businesseswhere over half their sales come from cigars, pipetobacco and related specialist tobacconistsmaterials.

The exemption is only for the sampling of cigars andpipe tobacco and not for cigarettes or rolled tobacco.

The sampling of non-tobacco products would not bepermissible. Sampling is defined in dictionaries as‘taking a small separated part of somethingillustrating the qualities of the mass’. Time-wise,sampling is also generally understood as a briefactivity, not an extended trial over a period of time.A customer spending a lengthy period of time‘sampling’ a product might mean that they areactually ‘consuming’ the product.

The exemption applies to the whole shop providedthe specified conditions are met.

Application to serve waterpipes

Any business that sells tobacco (including tobaccofor waterpipes) must display ‘age of sale’ signs thatmeet statutory requirements. In addition, all tobaccoproducts offered for sale must carry mandatoryhealth warnings and the manufacturers must haveprovided detailed product information to theDepartment of Health, in line with the requirementsof the Tobacco Products (Manufacture, Presentationand Sale)(Safety) Regulations 2002. TradingStandards Officers can provide advice and supporton these requirements.

If a business serving waterpipes is able to meet allthe requirements to be defined as a specialisttobacconist, in addition to the requirements setout in the exemption for specialist tobacconistswithin the Smokefree (Exemptions and Vehicles)Regulations 2007, it may be lawful for the businessto allow sampling of pipe tobacco on its premises.

For a business serving waterpipes to be considered aspecialist tobacconist under the requirements ofsection 6(2) of the Tobacco Advertising andPromotion Act 2002 (c.36), it would need to:

Be a shop, or a self-contained part of a shop

To qualify as a specialist tobacconist, a business wouldneed to show that they are genuine retailers, and thatthe sale of (in this case), pipes and pipe tobacco is the


principal part of their business, rather than just oneaspect of their business. Therefore, it would beexpected that there would be substantial displays oftobacco and pipes and other smoking paraphernaliadisplayed for sale, with price information.

What actually constitutes a ‘shop’ is open tointerpretation. A premises that is furnished withcomfortable chairs, cushions and tables, or provides arange of leisure services not necessary for, or directlyconnected to, the purpose of the ‘sampling’ oftobacco, may not be a retailing shop but rather adifferent kind of leisure facility for example arestaurant or café.

Meet certain sales requirements of ‘specialisttobacco’ products

To be a specialist tobacconist, a business would needto be a genuine retail business that focuses on thesale of specialist tobacco products. Under theTobacco Advertising and Promotion Act, a businesscan only be a specialist tobacconist if more thanhalf of the sales in the shop are derived from thesales of cigars, snuff, pipe tobacco (includingtobacco for waterpipes) and smoking accessories(including actual waterpipes and non-tobaccoproducts smoked in waterpipes). The key factors incalculating the amount of sales are set out in section6(3) of the Tobacco Advertising and Promotion Act,and Trading Standards Officers can provide furtheradvice and support.

B7 Offshore installations

A designated room used solely for smokingin offshore installations need not besmokefree if it is designated in writing bythe person in charge.

Each designated smoking room has to meetspecified requirements in relation toventilation, separation and signage (seetable of requirements for designation ofrooms for smoking).

This exemption is intended for oil platforms andsimilar hazardous installations where smoking in theopen air would create a risk.


B8 Research and testing facilities

A room in a research or testing facility neednot be smokefree during the time that it isbeing used for research or tests if it isdesignated in writing by the person incharge.

Each designated room has to meet specifiedrequirements in relation to ventilation,separation and signage (see table ofrequirements for designation of rooms forsmoking).

Note that these could include researchfacilities in schools.

Councils with such facilities in their area may feel thatsecuring compliance with these requirements shouldbe taken into account by the Health and SafetyExecutive in establishing the overall safety standardsfor such facilities. This would include considerationsof how best to protect employees from exposure tosecondhand smoke, arrangements to minimiseaccidental exposure of the employees or to mitigateeffects and regular health screening.

The research or tests must relate to:

• emissions from tobacco and other products used forsmoking;

• development of products for smoking with lowerhazard or fire safety testing of materials involvingproducts for smoking;

• development of smoking or pharmaceutical productsthat could result in the manufacture of lessdangerous products for smoking; or


• smoking cessation programmes.

B9 Smokefree vehicles

Enclosed vehicles are required to besmokefree at all times if they are used:

• by members of the public or a section ofthe public, whether or not for reward orhire; or

• in the course of paid voluntary work bymore than one person, even if those peopleuse the vehicle at different times, or onlyintermittently.

The Smoke-free (Vehicle Operators and PenaltyNotices) Regulations 2007 set out the persons whowill have legal duties to cause any person who issmoking on a smokefree vehicle to stop smoking,namely:

• the driver;

• any person with management responsibilities for thevehicle; and

• any person in a vehicle who is responsible for order orsafety on it.

Vehicles that are required to be smokefreeand that have a removable or stowable roofwill not be required to be smokefree whenthey are conveying persons during the timethat the roof is completely removed orstowed.

This will mainly apply to convertible cars and tourbuses.

Vehicles will not be required to besmokefree if they are used primarily for theprivate purposes of a person who

• owns it; or

• has a right to use it which is not restrictedto a particular journey.

A privately-owned vehicle used by the owner inconnection with their work and only occasionally forconveying other people in connection with workactivities will not be required to be smokefree.

A vehicle which is on hire for long term personal usedoes not have to be smokefree (unless the hirecompany specifies smokefree as a rental condition orthe company employing the driver restricts the use ofthe vehicle to a particular journey).

A pool car which is available for general work use fora particular journey is required to be smokefree.

A rental vehicle being delivered to a customer isconsidered to be a work vehicle and would berequired to be smokefree.

Establishing details of the registered keeper

Where offences have been observed or reported forfailure to comply with the requirements of thesmokefree legislation in relation to motor vehicles, itmay be necessary to establish details of the registeredkeeper of the vehicle in order to carry outinvestigations in connection with the offence or toprosecute for the offence.

Regulation 27(1) (a) of the Road Vehicles (Registrationand Licensing) Regulations 2002 provides for therelease of information from DVLA’s vehicle records tocouncils for the investigation of an offence ordecriminalised parking contravention.

Councils are able to request information from DVLAeither manually, using the appropriate form (VQ4), orelectronically using the Electronic Data Interchange(EDI) link.

The officers of the DVLA have confirmed that it wouldbe acceptable for councils to request information viathe EDI link in relation to vehicles in which an offence

provisions would not apply to vessels used primarilyfor private purposes, nor to private vessels such asyachts, motor cruisers, and small private fishingvessels, unless they are carrying at least one payingpassenger, or are operating with crew employedunder a contract.

Where a boat is moored and for example used forother purposes, the council will need to check withthe Maritime and Coastguard Agency (MCA) as towhether the vessel falls under the jurisdiction of theMCA or is for the council to investigate.

B11 Aircraft

This legislation does apply to aircraft.

The Government believes that provisions in the AirNavigation Order 2005 regarding smoking in aircraftare working satisfactorily. The Air Navigation Orderalso makes suitable provision regarding no-smokingsignage.


has been committed or is under investigation underthe smokefree legislation, (where this relates tosmoking in vehicles which are deemed a ‘place ofwork’). The advice of the DVLA is that the EDIAgreements in place between DVLA and councilswould not need to be changed to cover this use. Theterms of the EDI Agreement would of course have tobe adhered to, including the requirement for an audittrail to be kept in relation to the reason for therequest.

Within each council there will be an officer identifiedwith responsibility for the submission of inquiries tothe DVLA and their advice should be obtained onlocal procedures and required audit trails.

While councils also have access to the Web EnabledEnquiry (WEE) link, under the terms of agreementbetween local councils and DVLA this is only to beused for requests for information in relation toabandoned or nuisance vehicles, so requests inrelation to the smokefree legislation would NOT bepermitted.

B10 Ships and hovercraft

It is intended that the requirements of thesmokefree regulations will, whereappropriate, apply to all vessels, bothpassenger and non-passenger ships,including fishing vessels, that come withinthe scope of the Merchant Shipping Act1995 and that similar legislation will beapply to hovercraft. The requirementswould only apply whilst the vessels areoperating within the 12-mile UK territoriallimit, unless they are in transit and will notbe calling at a UK port.

It is not proposed to extend the smokefree provisionsto any vessel which is operated by self-employedseafarers with no employed crew and/or payingpassengers on board, or to private vessels which arenot carrying any fare paying passengers or anyemployed crew on board. This would mean that the

Type 1 – those that simply provide a safe anddirect connection between one roadway orfootpath and another

There may be no reason for the public to enter otherthan in order to transit to and from the entrance andexit points. The nature and extent of any workactivities will be a question of fact and degree andmay be carried out by peripatetic workers such ascleaners, security patrols, etc and these may beconsidered to be irregular or infrequent and nottherefore a significant factor.

Type 2 – those whose purpose includes providingaccess to premises (e.g. shopping centre); tofacilities (e.g. car parking or public lavatories); orto transport connections (e.g. train stations or bustermini)

The public will need to enter, not only in order totransit to and from the access points, but also to gainaccess to the premises, facilities or transportconnections whose entrances are located therein. Thecase might be made that because the structureprovides access to a place which is required to besmokefree, then it can be considered as part of, or anextension to, that access.

In addition to periodic cleaning and patrollingactivities, there may be retail kiosks and otheradditional regular and frequent work activities such asnewspaper selling, fast food vending, permittedbusking or charity collections.

Type 3 – those whose purpose is the normalfunction of a roadway or footpath for public useand providing access to the usual range ofpremises (e.g. retail shops, offices, hospitalitypremises, dwellings, etc)

In this case all of the usual activities associated withpublic use and maintenance of the roadway andfootpath will be carried out and those parts of theroadway that are enclosed or substantially enclosedwill be required to be smokefree at all times.


C Good practice

C1 Application of the smokefree legislationto subways, tunnels, bridges and othercovered thoroughfares

It may be helpful to consider covered thoroughfaresin the following categories:

subways – these may be described as undergroundpassageways and underpasses, usually located underroadways;

tunnels – these may be described as passagewaysrunning underground or through structures;

bridges – these may be described as aerialpassageways connecting structures or otherthoroughfares; and

covered roadways and footpaths – these may bedescribed as roadways and footpaths for public usewhich are partially or completely covered over.

Are they premises?

In order to apply the smokefree legislation it isnecessary to be satisfied that in any particular casethe covered thoroughfare can be considered as apremises, or a part of a premises, and not simply partof the highway. This is because the smokefreelegislation is only intended to apply to premises. Toreach this decision it may be helpful to consider theactual use that is made of the covered thoroughfare.

It will be the case that all covered thoroughfares areopen to the public, or at least a section of the public.It might be helpful therefore to consider both thenature and extent of public access and also of workactivities.

Use of covered thoroughfares

Three types of use of covered thoroughfares can beconsidered:

requirement where certain conditions can be satisfiedto them completely.

Basically the officer would need to be satisfied either:

• that the sides had been permanently removed (aswould be the case where a tented structure was usedin the manner of a ‘gazebo’); or

• that the management arrangements are such as toensure that removable sides are only put in place attimes when the structure is closed for use andunoccupied, e.g. fairground rides and stalls whichneed to be made secure at night againstunauthorised access.

The business would also need to ensure that there isno contingency plan in place for sides to be added,for example in wet weather, or for other structures tobe added or positioned to provide protection –thereby effectively enclosing it.

It is important that we demonstrate a consistency ofapproach to this requirement, and our use of anydiscretion, as the providers of tented anddemountable structures councils will need to be ableto provide similar advice to hirers and users.

Signage

The legal requirement is for the display ofstatutory A5 no-smoking signs at each publicentrance to every enclosed and substantially enclosedarea.

Some good practice points:

• the A5 statutory sign may not be easily seen wherethere are large crowds entering and thereforeadditional larger signs displayed at high level may beuseful;

• signs need to be displayed in a manner that they areprotected from the wind and rain (e.g. made ofwaterproof material or enclosed in clear plastic


Note – where the roofing is not continuous along theentire length (as is the case with some coveredthoroughfares comprising roadways, footpaths, bridgesand subways with open-air intersections), then thesmokefree requirements can only be applied to thoseareas which are covered over, since the definition of‘enclosed’ requires the presence of a roof.

C2 Open air events

During the summer months many outdoor fetes,festivals and concerts take place. Many of these maybe attended by very large numbers of people andthere is a need to give detailed consideration to howbest to secure the maximum levels of compliance withthe smokefree legislation.

Tents, marquees and other demountablestructures

The legal requirement is that a structure which is, orcan be made, substantially enclosed should be treatedas substantially enclosed and required to besmokefree at all times.


• the temporary structures need to be determined,preferably in advance, as either enclosed, substantiallyenclosed, or not substantially enclosed – it will be amatter of fact as to whether a temporary structurecan be substantially enclosed, i.e. are there rolled-upside awnings or fixings for additional awnings orpanels to be attached; and

• the specifications of the intended structuressubmitted in accordance with any prior approvalprocess should help determine whether they will besubstantially enclosed – however, careful inspection ofthe structures in-situ should be carried out to ensurethat they have been constructed and situated asoriginally proposed and intended.

There may be opportunities for officers to exercisediscretion in relation to the application of this

• the stewarding staff should be properly briefed andexpected to deal with any smoking in contraventionof the law and to provide direct assistance to theenforcement officers;

• people who are smoking can be asked to extinguishsmoking materials before being allowed to entersmokefree areas and can be refused admission untilthey have done so (appropriately labelled receptaclesat the entrances for extinguishing smoking materialswill provide an additional reminder and a safe meansof disposal);

• people who are smoking inside smokefree areas canbe asked to extinguish their smoking materialsimmediately or told to leave the area and onlyreadmitted when in compliance (enforcement officersand stewards can be provided with commerciallyavailable personal cigarette extinguishing boxes whichthey can hand to the smoker for this purpose); and

• people who smoke in contravention of the legalrequirements can be required to leave the site.

C3 Electronic cigarettes

A number of so-called ‘electronic smoking products’are being sold and LACORS is aware that there hasbeen a growing level of concern expressed bycolleagues about both the safety of these newproducts and the possibility that their use will beconfused with normal smoking of tobacco.

It is not possible to provide any statements about thesafety aspects since there are no recognised safetystandards. The Department of Health is supportive offurther work in this area and has agreed to fund thepurchase, testing and reporting on a number ofelectronic cigarette products. This work is beingcoordinated by Kent Trading Standards. Once thereports have been received and reviewed the nextstep will be the preparation and distribution ofguidance by LACORS. Councils which act as the HomeAuthority for a supplier of one of the selectedproducts will be notified separately and provided with


sheeting) and cannot easily be removed maliciously(e.g. permanently fixed to display boards); and

• additional signs may be needed inside somestructures such as large covered performance arenasand spectator areas, structures where smoking islikely to occur (such as dance and beer tents) andindividual toilet compartments.

Providing additional information to the public


• advertise the event as smokefree as a positiveincentive for people to attend;

• print tickets to indicate that the event is smokefree;

• display site maps to show where smoking is and isnot permitted;

• make public address announcements to remindpeople not to smoke inside smokefree structures;and

• display reminder messages over stages, etc onelectronic message boards.

Enforcement

Smoking in an enclosed or substantially enclosedstructure will be an offence.

Anyone who smokes in contravention of the legalrequirements can be served with an FPN at the timeor their personal details and the evidence of theiroffence recorded for subsequent consideration.


• council enforcement officers need to be inattendance and their presence needs to be knownto the organisers so that they can be called upon todeal with illegal smoking incidents whereappropriate;

drivers and supervisory staff, spot inspections byschool staff, use of CCTV, etc.

Ways of dealing with an offending school childinclude sending a letter to their parents inviting themand the child to attend a meeting at which theregulatory officer will be present together with thesenior representatives of the school, when theevidence will be presented. If there is no improvementand smoking occurs again on the bus or in the schoolpremises then deterrents and penalties can be appliedby the school. In the case of the bus company thiscan include issuing a warning letter and ultimatelyrevocation of travel permits or banning the pupil fromthe bus altogether.

C5 Sports stadia

Sports stadia are treated in the same way as otherbuildings – if they are enclosed or substantiallyenclosed they will be required by law to besmokefree.

In reality, many sports stadia comprise of a numberand range of buildings and structures, some of whichare enclosed, or substantially enclosed, and some ofwhich are open to the air or roofed over in such away as to make it difficult to decide whether theyshould be required to be smokefree or not e.g.partially covered stands.

Ensuring compliance on such premises may pose achallenge for the site managers and a simple remedywill be for the adoption of a corporate policy for theentire site to be declared to be smokefree. This isalready the case with many of the major sports andentertainments stadia and is to be encouraged andsupported.


a copy of the test report so that they may takeappropriate action.

The advice to enforcement officers is that theirprosecution statements for smoking offences need toinclude sufficient description of the evidence thatsmoking has been observed so as to be able to rebutany assertion that what they had actually seen wasthe use of electronic cigarettes. Guidance on thepossible factors that enforcement officers can observeand record and include in their evidence to assistthem in making the necessary differentiation isavailable atwww.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=57CC81D&id=19508

Indeed it may well be worth officers including in anystatement that they have positively discounted thepossibility that they have observed the use of anelectronic cigarette and their reasons for soconcluding. Officers may also want to considercollecting physical evidence where appropriate,including cigarette butts and cigarette ash (the HealthAct 2006 contains the powers to do this).

C4 Schools

It is believed that enforcement, including issuing FPNsagainst children under the age of 16 will not bewarranted.

LACORS believes that within school grounds childrenwho are caught smoking should be dealt withthrough normal school disciplinary procedures.

Councils should state clearly in contracts with schoolbus and other transport providers that smokefreevehicles must be provided and any incidents ofsmoking on the vehicle must be recorded andreported.

Where there are continuing problems with smokingon vehicles by school children then deterrent anddetection measures may need to be employed,including additional signage, increased vigilance by

www.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=57CC81D&id=19508


D Conditions required to be met fordesignated rooms

The chart below details the conditions that must bemet for designated rooms in specified premises, as setout in the Smoke-free (Exemptions and Vehicles)

Regulations 2007. A tick on the chart means that thecondition must be met in order to designate a roomfor smoking. If all required conditions are not met inany room intended to be designated in specifiedpremises, then the council must require the room to besmokefree under the provisions in the Health Act 2006.

Types of premises Accommodation forguests and club

members (hotels, guesthouses, inns, hostels ormembers’ clubs), notincluding dormitories

Other residentialaccommodation (onlycare homes, hospices

and prisons)

Offshoreinstallations

Research and testingfacilities (limited to thoseengaged in research or

tests specified inregulations)

Specialist tobacconistsshops (as defined in theTobacco Advertising and

Promotion Act 2002)

Type of roomthat can bedesignated

Guest bedrooms,set apart exclusively for

sleeping accommodation

Bedrooms or rooms usedonly for smoking

Rooms used only forsmoking

Rooms used for specifiedresearch or tests

Entire shop forsampling of cigarsor pipe tobacco

Room has a ceiling and,except for doors and

windows, is completelyenclosed on all sides by

solid floor-to-ceilingwalls

4 4 4 4

Room does not have aventilation system that

ventilates into any otherpart of the premises

(except any otherdesignated rooms)

4 4 4 4 4

Room does not have anydoors that open ontosmokefree premises,

which are notmechanically closed

immediately after use

4 4except prisons

4 4 4

Room is clearly markedas a room in which

smoking is permitted4 4 4 4 4


Offence under theHealth Act 2006

Section 6(5) Failure todisplay no-smoking signin a smokefree premiseor vehicle (occupier ormanager)

Section 7(2) Person whosmokes in a smokefree placeor vehicle (any personsmoking)

Section 8(4) Personhaving management orcontrol of smokefreepremises or vehicle failsto stop a person fromsmoking there (manageror person in control)

Section 11 Any personwho intentionally obstructsan authorised officeror who fails to giveassistance when requestedto do so or who gives falseor misleading information

Appendix 5 Offences and penalties

Defence under theHealth Act 2006

Section 6(6) It is a defencefor the person charged toshow that they did not knowand could not have reasonablybeen expected to know thatthe premises were smokefreeor that they did not know andcould not have reasonably havebeen expected to know thatno-smoking signs complyingwith the requirements were notbeing displayed in accordancewith the requirements or thaton other grounds it wasreasonable for them not tocomply with this duty.

Section 7(4) It is a defencefor the person charged toshow that they did not knowand could not reasonably havebeen expected to know that itwas a smokefree place.

Section 8(5) It is a defencefor the person charged to showthat they took reasonable stepsto cause the person in questionto stop smoking or that theydid not know and could notreasonably have been expectedto know that the person inquestion was smoking or thaton other grounds it wasreasonable for them not tocomply with the duty.

FPN

IF PAID IN 29 DAYS

£200

£50

Notapplicable

Notapplicable

FPN

IF PAID IN 15 DAYS

£150

£30

Notapplicable

Notapplicable

Max. courtawarded fine

IF FOUND GUILTY

Level 3 onstandard scale– currently upto £1000





Appendix 6 Example incidentform for use by businesses

Date Description of incident Action taken Outcome Name ofand time (e.g. where person smoking, and by whom manager

description of person)


Provision of shelters

The smokefree legislation does not require thecreation of shelters for smokers and an owner of apremises cannot be compelled to make suchprovision. However, it is the case that somebusinesses want to build shelters to accommodatepeople who work on or visit their premises and whocan no longer be allowed to smoke inside theirbuildings.

The smokefree legislation does not deal with howsmoking shelters should be constructed or sited. Sincethat is the case, it is not possible for LACORS tospecify how such shelters should be constructed orsited. There have been requests for national planningguidance to be issued regarding smoking shelters. Itis the view of LACORS, supported by the Departmentof Communities and Local Government, that it is notpossible to produce meaningful planning guidance ata national level that would adequately cover therange of considerations that might be important at alocal level.

Therefore the approval of such shelters, orotherwise, will necessarily be a matter for localdetermination by regulatory officers liaising withplanning officers and others to ensure that any shelterthat is used for smoking is not substantially enclosedand can be used by smokers without offences beingcommitted.

LACORS believes that, whilst regulatory officers willwish to provide such advice on the provision ofsmoking shelters where possible, the main focus oftheir attention needs to be to ensure compliance withthe smokefree legislation in those enclosed andsubstantially enclosed areas which constituteworkplaces and ‘indoor’ public places and that workmust take priority.

General considerations

Where businesses do want to erect shelters they willneed to give consideration to the following:

• local planning requirements and whether planningconsent will be required;

• building control requirements and whether buildingcontrol consent will be required;

• licensing requirements and whether conditions willneed to be met in terms of late night hours/use of thestreet;

• noise issues, especially at night and adjacent toresidential areas;

• provision of suitable litter receptacles to help keep thestreets/outside areas clean; and

• the use of any temporary covers that may cause thestructure to be classed as substantially enclosed.

It is expected that councils will wish to act in aco-ordinated manner in addressing all of these issuesand providing a ‘joined-up’ response. To this end thecouncil may need to adopt a properly developedcorporate policy. Anyone intending to erect such ashelter should be advised to discuss their proposalwith the appropriate council staff at the earliestopportunity.

Siting

The siting of the shelter is an important considerationand it is recommended that:

• it should not be sited too close to sheltering walls orother structures which may prevent proper air-flowthrough the shelter since this would not only beagainst the spirit of the legislation and commonsensebut could also effectively render the structuresubstantially enclosed and raise the prospect ofoffences being committed when it is used bysmokers; and

• it should be sited so as to ensure as far as possible thatsecondhand smoke will not be likely to drift intosmokefree areas of premises and give rise to complaints.

Appendix 7 Key issues inrelation to smoking shelters


Again, it is advised that before any final decision ismade on type and location of a shelter, businessowners should seek the advice from their localcouncil.

Construction

There are now many varieties of structure in useincluding commercially available prefabricated anddemountable structures as well as those that havebeen achieved by making alterations and additions toexisting buildings. Regardless of the shape of anystructure, if it is closed in at the top by any means ormaterial, then it effectively has a roof. The onlydiscretion that might be applied is where the ‘roof’ iscomposed of netting which does not impede theegress of secondhand smoke. This feature is beingemployed in situations where the intention is not toprovide shelter as such, but rather to contain peoplewithin a secure area whilst they are smoking.

Some structures incorporate balustrading, lattice workor netting to form the walls and this will need to betaken into account when assessing the wholestructure in relation to the 50 per cent rule. It may bethat the balusters are spaced well apart or they maybe very close together and effectively serve thepurpose of a wall. Similarly where planting isemployed so as to form an outer face of thestructure, or it is in such close proximity as to beeffectively contiguous with the face of the structure,then this will need to be taken into account. In casesof doubt measurements will be required.


Appendix 8 Smokefree vehiclesdecision-making flowchart

Used by members of the publicor a section of the public(whether or not for reward or hire)

How many people use itfor work purposes?

Used in the course of paidor voluntary work

Only ever used by one person

Used by more than one person(even if at different times or intermittently)

Used for privatepurposes only

Vehicle is not requiredto be smokefree

How is the vehicle used?

Vehicle is required to besmokefree at all times

Is it used primarily forwork or private purposes?

Work purposes

Vehicle is not requiredto be smokefree

Private purposes

Notes to this flowchart:

• vehicles that are to be smokefree and that have aremovable or stowable roof are not required to besmokefree when the roof is removed or stowed;

• vehicles used ‘by members of the public or a section ofthe public’ include public transport, taxis, etc; and

• vehicles that are to be smokefree must also displayno-smoking signs that comply with the new law.


Schedule 1 to the 2006 Health Act sets out the FixedPenalty Notice (FPN) scheme that applies to the Act.A FPN is a notice offering a person the opportunity todischarge any liability to conviction for the offence bypayment of a fixed penalty. As set out in the Smoke-free (Vehicle Operators and Penalty Notices)Regulations 2007, a FPN must:

• identify the offence to which it relates and givereasonable particulars of the circumstances alleged toconstitute that offence;

• state the name and address of the enforcementauthority on whose behalf the officer was actingwhen the notice was issued;

• state the amount of the penalty and the period withinwhich it may be paid;

• state the discounted amount and the period withinwhich it may be paid;

• state the consequences of not making a paymentwithin the period for payment;

• state the person to whom and the address at whichpayment may be made (this must be the local councilfor the area where the alleged offence wascommitted, or a person acting on behalf of thecouncil);

• state the method or methods by which payment maybe made; and

• state the person to whom and the address at whichany representations relating to the notice may bemade.

The arrangements required under these regulationsare included below.

Officers will need to ensure that a notice has beenproperly served. This may require serving immediatelyon the spot, or if a person is seen smoking in theirwork vehicle the officer may have to contact the

company to find out who was driving - this will thenrequire the company to pass over the information.Officers in Scotland have used a fax system to requestthe information. Where that information is notprovided then notices have been served on theindividual care of the company’s address. If a notice issent recorded delivery - again a record of this must bekept by the officer.

There is no fixed time in which officers must serve thenotice but to avoid any allegation of abuse ofprocess, it is recommended that any notice is servedwithin a reasonable time period and any delay willneed to be justified. Officers will also need to beaware that the statutory limitation of six months willstill apply for undertaking summary proceedings. Thesix months begins from when the offence occurrednot from when the notice is served.

Payment periods

The full amount of the fixed penalty as stipulated inthe notice will be payable and must be paid within 29days beginning with the day on which the notice isgiven.

However, a discounted amount is payable instead ofthe full amount if payment is made before the end ofthe period of 15 days beginning with the day on whichthe notice is given (if the last day does not fall on aworking day, the period for payment of the discountedamount is extended until the next working day).

Failure to pay a FPN

If a person on whom a notice has been issued fails topay the amount set out at the end of the 29 dayperiod then the council may institute legalproceedings for the offence to which the penaltynotice relates.

Requesting a court hearing

Where a person has received a FPN they can givenotice in writing to the council requesting a Court

Appendix 9 Fixed penalty notice guide


X commits an offence

Issue FPN

FPN flowchart Applicable to offences relating to failure to displaycorrect no-smoking signage and smoking in a smokefree place

X does not pay FPNX pays FPN

Council withdrawsFixed Penalty Notice

X requestscourt hearing

Court finds againstX and imposes fine

Court finds for X andFPN no longer applies

OR

Report for legalproceedings

hearing in respect of the offence for which they havereceived the notice. Legal proceedings may then bebrought against them before the end of the penaltypayment period. If the person changes their mind andthen pays the discounted or penalty amount, then theproceedings may not be continued.

Withdrawal of notices

There is no right of appeal against the service of anotice but the person on whom the notice is served

may ask questions or put forward information thatthey feel relevant to the issue of the notice. Shouldsuch information suggest that, for example, a noticehas been incorrectly issued then the council may givenotice in writing to the person and withdraw the FPN.If any monies have already been paid, these must berepaid.

Template notices are provided in the Smoke-free(Vehicle Operators and Penalty Notices) Regulations2007.


Template noticesForm 1 – failing to display prescribed no-smoking signs or

failing to display no-smoking signs in a prescribed manner

SCHEDULE 1 Regulation 3(2)

Form 1 - Failing to display prescribed no-smoking signs or failing to display no-smoking signs in a prescribed manner

[NAME OF ENFORCEMENT AUTHORITY][ADDRESS OF ENFORCEMENT AUTHORITY]

HEALTH ACT 2006:SECTION 6 (FAILURE TO DISPLAY NO-SMOKING SIGNS IN ACCORDANCE WITH REQUIREMENTS MADE BY OR UNDER SECTION 6)

FIXED PENALTY NOTICEPENALTY AMOUNT £200

PART 1RECIPIENT COPY

Penalty notice number:

Full name of alleged offender

Address of alleged offender

Postcode

Date of birth (if known) Male/female (circle one)

I, (name), an authorised officer of [name of enforcement authority]under section 10 of the Health Act 2006, have reason to believe that you committed an offence under section 6 of the Health Act 2006(failure to display no-smoking signs in accordance with requirements made by or under section 6) in premises, a place or vehicle in relationto which [name of enforcement authority] has enforcement responsibilities.

The circumstances alleged to constitute the offence are that at:

(time) on (date)

you, at/on the following premises, place or vehicle (where alleged offence took place, including address, if any):

being premises, a place or vehicle to which the provisions of section 6 of the Health Act 2006 applies, allegedly (details of offence):

This notice offers you the opportunity of discharging any liability for conviction for that offence by the payment of a fixed penalty of£200 (two hundred pounds). No proceedings will be taken for this offence before the expiration of the period of 29 days beginningwith (insert the date on which this notice is given). You will not be liable to conviction for the offence if you pay the fixed penalty within that period. In this Form this period is referred to as the 29 day period.

You can pay a discounted amount of £150 (one hundred and fifty pounds) if you pay within the period of 15 days beginning with (insert the date on which this notice is given). If the 15th day is not a working day, you may pay on the next working day. ‘Working day’ means any day which is not Saturday,Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and FinancialDealings Act 1971. In this Form this period is referred to as the 15 day period.

Information for the immediate attention of the person who has been issued this penalty notice is at Part 2 of this notice. Details about howto pay this fixed penalty are at Part 3 of this notice. Details about how to request a court hearing in relation to this alleged offence are atPart 4 of this notice. If you have any questions, or if you wish to discuss this notice, please contact [insert name and address ofenforcement authority and contact details].

Signature of authorised officer Date of issue


PART 2INFORMATION FOR THE IMMEDIATE ATTENTION OF THE

PERSON WHO HAS BEEN ISSUED WITH THIS PENALTY NOTICE

You have received this notice because the authorised officer of [name of enforcement authority] named in Part 1 of this notice has reasonto believe that you have committed the offence of failing to display a no-smoking sign in accordance with requirements made by orunder section 6 of the Health Act 2006. Within the 29 day period specified in Part 1, you must either pay the penalty or request thatthe matter be heard by a court. You may not do both.

If you fail to do either, [name of enforcement authority] as an enforcement authority by virtue of section 10 of the Health Act 2006, maypursue this matter in court. A person found guilty of the offence of smoking in a smoke-free place is liable on summary conviction to afine not exceeding level 1 on the standard scale (a).

(a) Currently £200 – see section 37 of the Criminal Justice Act 1982 (c.48) as amended by section 17 of the Criminal Justice Act 1991 (c.53).

PART 3PAYING THE PENALTY

The amount of the fixed penalty is £200 (two hundred pounds). It must be paid within the 29 day period which is specified in Part 1.

You can pay a discounted amount of £150 (one hundred and fifty pounds) if you pay within the 15 day period specified in Part 1.

If you choose to pay the penalty, no further action will be taken in respect of the alleged offence described at Part 1 of this penaltynotice. The payment of the penalty involves no admission of guilt and will not result in a record of criminal conviction being madeagainst you.

Payment may be made by completing Part 3A below and returning it with payment to the address stated in that Part, or by completingPart 3A below and paying in person at [name of enforcement authority]. Acceptable methods of payment include cash, cheque, postalorder or money order.

Cheques, postal orders or money orders should be made payable to [name of enforcement authority]. If you choose to pay this penaltyin cash by post, this must be sent by registered post, and proof of posting must be retained. If you require a receipt for the payment ofthe penalty, you must ask for one at the time of payment, and if paying by post, you must provide a stamped, self-addressed envelope.

WARNING – LATE PAYMENT WILL NOT BE ACCEPTEDYOU WILL NOT BE SENT A REMINDER

PART 3APAYMENT OF FIXED PENALTY ISSUED UNDER SECTION 6 OF THE HEALTH ACT 2006

(FAILURE TO DISPLAY NO-SMOKING SIGNS IN ACCORDANCE WITHREQUIREMENTS MADE BY OR UNDER SECTION 6)

This slip must accompany all payments

To: [Name and address of enforcement authority where payment should be sent]

Penalty notice number

I enclose the amount of: £150 (if the payment is made within the 15 day period specified in Part 1)(tick one box) £200 (if the payment is made within the 29 day period specified in Part 1)



Postcode

Signature x Date of issue


failing to display no-smoking signs in a prescribed mannerContinued


PART 4REQUESTING A COURT HEARING

If you choose to request a court hearing, you must within the 29 day period do so by completing Part 4A and sending it to [name ofenforcement authority], or by writing to [name of enforcement authority] at the address stated on Part 4A, giving your details, thepenalty notice number (which can be found in Part 1 of this notice) and an address at which a summons can be served on you. Thesummons will tell you when and where to attend court. Only the recipient of this penalty notice (the person named at Part 1) mayrequest a court hearing.

PART 4AHEALTH ACT 2006: FAILING TO DISPLAY A NO-SMOKING SIGN IN

ACCORDANCE WITH REQUIREMENTS MADE BY OR UNDER SECTION 6

REQUEST FOR ALLEGED OFFENCE TO BE DEALT WITH BY A COURT OF LAW

To: [Name and address of enforcement authority]


I wish to be dealt with by a court of law for the alleged offence.



Postcode



failing to display no-smoking signs in a prescribed mannerContinued


SCHEDULE 2 Regulation 3(2)

Form 2 - Smoking in a smoke-free place

[NAME OF ENFORCEMENT AUTHORITY][ADDRESS OF ENFORCEMENT AUTHORITY]

HEALTH ACT 2006:SECTION 7 (OFFENCE OF SMOKING IN A SMOKE-FREE PLACE)

FIXED PENALTY NOTICEPENALTY AMOUNT £50

PART 1RECIPIENT COPY

Penalty notice number:



Postcode

Date of birth (if known) Male/female (circle one)

I, (name), an authorised officer of [name of enforcement authority]under section 10 of the Health Act 2006, have reason to believe that you committed an offence under section 7 of the Health Act 2006(smoking in a smoke-free place) within premises, a place or vehicle in relation to which [name of enforcement authority] has enforcementresponsibilities. Section 7(1) to the Health Act 2006 provides that smoke-free places include smoke-free premises and smoke-free vehicles.

The circumstances alleged to constitute the offence are that at:

(time) on (date)

you, at/on the following premises, place or vehicle (where alleged offence took place, including address, if any):

being premises, a place or vehicle to which the provisions of section 7 of the Health Act 2006 applies, allegedly (details of offence):

This notice offers you the opportunity of discharging any liability for conviction for that offence by the payment of a fixed penalty of£50 (fifty pounds). No proceedings will be taken for this offence before the expiration of the period of 29 days beginningwith (insert the date on which this notice is given). You will not be liable to conviction for the offence if you pay the fixed penalty within that period. In this Form this period is referred to as the 29 day period.

You can pay a discounted amount of £30 (thirty pounds) if you pay within the period of 15 days beginning with(insert the date on which this notice is given). If the 15th

day is not a working day, you may pay on the next working day. ‘Working day’ means any day which is not Saturday,Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and FinancialDealings Act 1971. In this Form this period is referred to as the 15 day period.

Information for the immediate attention of the person who has been issued this penalty notice is at Part 2 of this notice. Details about howto pay this fixed penalty are at Part 3 of this notice. Details about how to request a court hearing in relation to this alleged offence are atPart 4 of this notice. If you have any questions, or if you wish to discuss this notice, please contact [insert name and address ofenforcement authority and contact details].

Signature of authorised officer Date of issue

Template noticesForm 2 – smoking in a smokefree place


PART 2INFORMATION FOR THE IMMEDIATE ATTENTION OF THE

PERSON WHO HAS BEEN ISSUED WITH THIS PENALTY NOTICE

You have received this notice because the authorised officer of [name of enforcement authority] named in Part 1 of this notice has reasonto believe that you have committed the offence of smoking in a smoke-free place as described in Part 1. Within the 29 day periodspecified in Part 1, you must either pay the penalty or request that the matter be heard by a court. You may not do both.

If you fail to do either, [name of enforcement authority] as an enforcement authority by virtue of section 10 of the Health Act 2006, maypursue this matter in court. A person found guilty of the offence of smoking in a smoke-free place is liable on summary conviction to afine not exceeding level 1 on the standard scale (a).

(a) Currently £200 – see section 37 of the Criminal Justice Act 1982 (c.48) as amended by section 17 of the Criminal Justice Act 1991 (c.53).

PART 3PAYING THE PENALTY

The amount of the fixed penalty is £50 (fifty pounds). It must be paid within the 29 day period which is specified in Part 1.

You can pay a discounted amount of £30 (thirty pounds) if you pay within the 15 day period specified in Part 1.

If you choose to pay the penalty, no further action will be taken in respect of the alleged offence described at Part 1 of this penaltynotice. The payment of the penalty involves no admission of guilt and will not result in a record of criminal conviction being made againstyou.

Payment may be made by completing Part 3A below and returning it with payment to the address stated in that Part, or by completingPart 3A below and paying in person at [name of enforcement authority]. Acceptable methods of payment include cash, cheque, postalorder or money order.

Cheques, postal orders or money orders should be made payable to [name of enforcement authority]. If you choose to pay this penalty incash by post, this must be sent by registered post, and proof of posting must be retained. If you require a receipt for the payment of thepenalty, you must ask for one at the time of payment, and if paying by post, you must provide a stamped, self-addressed envelope.

WARNING – LATE PAYMENT WILL NOT BE ACCEPTEDYOU WILL NOT BE SENT A REMINDER

PART 3APAYMENT OF FIXED PENALTY ISSUED UNDER SECTION 7 OF THE HEALTH ACT 2006

(OFFENCE OF SMOKING IN A SMOKEFREE PLACE)

This slip must accompany all payments

To: [Name and address of enforcement authority where payment should be sent]


I enclose the amount of: £30 (if the payment is made within the 15 day period specified in Part 1)(tick one box) £50 (if the payment is made within the 29 day period specified in Part 1)



Postcode



Continued

PART 4REQUESTING A COURT HEARING

If you choose to request a court hearing, you must within the 29 day period do so by completing Part 4A and sending it to [name ofenforcement authority], or by writing to [name of enforcement authority] at the address stated on Part 4A, giving your details, the penaltynotice number (which can be found in Part 1 of this notice) and an address at which a summons can be served on you. The summons willtell you when and where to attend court. Only the recipient of this penalty notice (the person named at Part 1) may request a courthearing.

PART 4AHEALTH ACT 2006: OFFENCE OF SMOKING IN A SMOKEFREE PLACE UNDER SECTION 7

REQUEST FOR ALLEGED OFFENCE TO BE DEALT WITH BY A COURT OF LAW

To: [Name and address of enforcement authority]


I wish to be dealt with by a court of law for the alleged offence.



Postcode



Continued

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