A HITMAN serving life for a gangland murder has taken ministers to court over fears he may develop cancer from passive smoking.
William Gage has asked judges to rule it is unlawful to detain him in conditions where he is exposed to tobacco smoke.
Smoking in public places such as pubs and shopping centres has been banned since 2005 but prison cells were deemed as private residences, making them exempt.
Gage was ordered to serve a minimum of 20 years in jail for gunning down 30-year-old Justin McAlroy six times outside his home in Cambuslang, South Lanarkshire, in March 2002.
Gage, 43, has made repeated complaints to authorities at Shotts jail - a relatively modern prison - where he has been held since 2004, about being left vulnerable to environmental tobacco smoke (ETS) inside the prison.
The non-smoker has now raised a judicial review at the Court of Session in Edinburgh seeking a declaration that it is unreasonable and unlawful to detain him in conditions in which he is exposed indoors to ETS.
His father who was a smoker died from lung cancer and he worries that the fumes from passive smoking will cause him to contract cancer.
His counsel, Christopher Pirie, told a judge yesterday: "All he seeks is to be held in part of one of the 15 prisons which the respondents (the Scottish ministers) control in which he is not exposed indoors to ETS."
"In my submission the evidence shows that the respondents have detained the petitioner for more than a decade in conditions that they correctly believe to be unsafe, without taking steps to look for an alternative," he told Lord Armstrong.
Mr Pirie argued that such detention was "an unreasonable exercise" of the Scottish Government's statutory powers.
He contended an analogy could be drawn with the case of Robert Napier who won damages after having to slop out in prison which led to a flood of claims.
The action claims inmates at the Lanarkshire prison have smoked in their cells in accordance with prison rules, but that smoke has collected in common areas of jail halls and penetrated Gage's cell.
A complete ban on smoking in prisons in England and Wales is to be phased in from January, despite warnings from governors it causing disruption among inmates.
The decision follows a seven-year battle by prison unions to include jails within the ban on smoking in public places.
More than four in five prisoners smoke and the English decision coincided with findings of air-quality tests undertaken in six prisons. The results showed staff were spending at least one-sixth of their time breathing in secondhand smoke levels higher than World Health Organisation guidance limits.
The secondhand smoke was a significant health hazard to prisoners and staff, the results showed.
Gage spent years maintaining he was a victim of a miscarriage of justice following his conviction for the shooting of Mr McAlroy outside his home in Acacia Way, Cambuslang, South Lanarkshire, on March 7 in 2002.
The minimum jail term he must serve is not due to expire until 2023.
In 2012 a bench of five judges at the Court of Criminal Appeal in Edinburgh rejected the former Territorial Army soldier's legal challenge against the murder conviction which had been referred to them by the Scottish Criminal Cases Review Commission which looks into alleged miscarriages of justice.
The appeal judges heard that the victim was a man with contacts and enemies in the criminal world. He was shot five times in the head, chest, arm and leg in the fatal attack.
Lord Armstrong will give a decision in the judicial review case later.
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