LORD Nimmo Smith's decision in the smoking test case of Margaret McTear (Our report, 1 June) has been heavily criticised by both health professionals and members of the public. What has been lost in the media maelstrom which followed is that Lord Nimmo Smith's task was only to decide the case on the evidence he heard, rather than for any social policy reasons.
As with any personal injury action, the onus was on Mrs McTear to prove the case against the tobacco company and not for the company to establish that it had no liability. Mrs McTear had to prove five essential points if she was to succeed,
but L
ord Nimmo Smith made it plain that Mrs McTear had failed to prove any.
But as Lord Nimmo Smith pointed out, the hearing before him was not a public inquiry into the issues relating to smoking and health.
The Scottish Executive has emphasised that the ruling will have no effect on its plans to push through legislation to prohibit smoking in public places.
At present there are two separate bills proceeding through the parliament seeking to prohibit smoking in certain public areas.
The first is a member's bill introduced by Stewart Maxwell MSP. Maxwell's bill does not seek an outright ban on smoking in public places, but only a ban on smoking in any enclosed public space which is regulated by the bill.
The premises that would be affected include bars, cafes, restaurants, hotels, railway stations, airports and shopping centres. The bill would create a specific offence of smoking in a regulated area and permitting smoking in a regulated area.
The Executive's bill
seeks to ban smoking in certain premises to which the public has access, where those premises are used as a place of work by employees, or are used for the purposes of a club or the provision of a health care service.
Both pieces of legislation are controversial, as they seek to criminalise an otherwise legal activity. Business owners are concerned that a ban will have a detrimental effect on their trade. There is also disagreement regarding the dangers of passive smoking. The aim of both bills is to protect the public, reduce NHS health care costs and save lives.
The McTear decision and the two bills highlight the distinct roles of the court and parliament. In claims for personal injury, judges determine cases on a balance of probabilities, having heard factual and expert medical evidence on oath.
The legislature is not concerned with burdens of proof. Members of the parliament simply have to assess the evidence presented to them on public policy grounds.
It is clear that the most effective method of addressing the impact of smoking on public health is not through an individual piece of litigation in the courts, but through legislation in the parliament.
Sinead Riach is a solicitor in the Dispute Resolution section of Anderson Strathern.
