A prisoner with health problems is considering taking his battle to make smoking in prison a crime to the Supreme Court, the highest court in the land, following a Court of Appeal defeat.
Paul Black, an inmate at HMP Wymott in Lancashire, says prison regulations that restrict smoking to individual cells and specially designated areas are being flouted.
Black wants the full force of the law to stop illicit lighting up by inmates - and prison staff - in communal spaces including landings and laundry rooms.
Black won a High Court declaration in March 2015 that the current legal ban on smoking in public places under Part 1 of the 2006 Health Act must also be applied to state prisons and other Crown premises in England and Wales.
But on Tuesday three senior judges allowed a Government appeal and ruled the Crown was not bound by the Act and the ban did not apply in state-run prisons.
A legal ban on smoking in communal areas does cover private prisons as they are not Crown premises.
Government lawyers had warned the appeal court at a recent hearing that a "particularly vigorous" ban in state prisons could cause discipline problems and risk the safety of staff and inmates.
Sean Humber, head of human rights at law firm Leigh Day, which represented Black, later described the appeal court ruling as "disappointing".
Mr Humber said non-smoking prisoners and prison staff were being denied "the same legal protection from the dangers posed by second-hand smoke as the rest of us".
The case of Black, a sex offender serving an indeterminate sentence since 2009, is being supported by three other non-smoking prisoners who confirm that they also witness smoking in unauthorised areas every day at the prison.
Mr Humber said:
But the appeal decision was welcomed by a spokesman for the Prison Service, who said:
High Court judge Mr Justice Singh ruled in March 2015 that it was "Parliament's intention" that the Health Act should apply in places for which the Crown was responsible and that intention should not be frustrated.
But the appeal judges - Lord Dyson, Master of the Rolls, sitting with Lord Justice McCombe and Lord Justice David Richards - disagreed and set aside the Singh decision.
Lord Dyson said the "basic, long-established" rule was that no statute bound the Crown unless there was "an express provision" or "a necessary implication" that it was bound.
He ruled nothing indicated decisively that the Crown was bound.
The judge said the courts placed considerable weight on the expectation that the Crown "will perform its constitutional duty by acting in the public interest" and meet statutory objectives even if it was under no statutory obligation to do so.
Deborah Arnott, chief executive of health charity ASH said: