"If article 8 ECHR is engaged, and I hold that it is, it is for the respondents to justify interfering with the petitioner's right to make his own decision about smoking. They have failed to do so satisfactorily. Indeed, I am satisfied that the decision to stop the petitioner smoking in the hospital grounds constituted interference with the petitioner's article 8 ECHR rights without lawful warrant ― because it was not made in accordance with section 1 principles ― and because it went further than was necessary to achieve the legitimate aim in question, namely to protect third parties from the petitioner's cigarette smoke. The respondents have also failed to demonstrate an ʺobjective and reasonable justificationʺ for treating the petitioner differently from adult, long‐term prisoners, who can smoke if they wish. Going further, on the material presented to me and in the absence of any other suggestion, it appears that the only justification for imposing a smoking ban on mental health detainees like the petitioner and not on penal detainees is that it is feasible to compel mental health detainees to stop smoking because of their vulnerability. This is not a legitimate justification. Accordingly I hold that there has been a violation of the petitioner's right not to be discriminated against in the enjoyment of his article 8 ECHR rights contrary to article 14 ECHR. Reading between the lines, I infer that Scotland does not have a complete statutory prohibition on smoking in the buildings and grounds of psychiatric hospitals in general and of the State Hospital in particular because the government could not, at the time, gather the requisite consensus for such a ban. If the legislature will not support a measure it is wrong to enforce it by extra‐statutory means. It may be of course, given the experience at the State Hospital, that the time is now right to try and put the ban on a statutory footing."