Secretary of State for Justice v Prison Officers Association

Factual and Procedural Background

This judgment concerns an application by the Secretary of State for Justice seeking an order for an appropriate penalty against the Prison Officers' Association ("the POA") for alleged civil contempt due to breaches of a permanent injunction granted by Jay J on 19 July 2017. The injunction prohibited the POA from inducing, authorising, or supporting any form of industrial action by prison officers. The application notice for contempt was issued in July 2019 and served on the POA's solicitors in September 2019.

The Secretary of State contended, and the POA did not dispute, that the POA induced a national strike on 14 September 2018 and supported industrial action at HMP Liverpool on 21 February 2019, both breaches of the injunction. The POA acknowledged awareness of the injunction's terms and admitted these breaches.

The POA represents over 30,000 prison officers across England and Wales. The background includes concerns about rising violence and deteriorating prison conditions, as documented in the 2019 HM Chief Inspectorate of Prisons report, which highlighted the challenging and dangerous environment faced by officers. This context influenced the POA's response and its cross-application to vary or set aside the injunction.

Legal Issues Presented

1. Whether the POA was in contempt of court by breaching the permanent injunction prohibiting inducement or support of industrial action.
2. Whether arguments based on Articles 11, 3, and/or 14 of the European Convention on Human Rights ("the Convention") provide a defence to the contempt allegations.
3. Whether the terms of the injunction are lawful and proportionate under domestic law and the Convention.
4. Whether the injunction should be varied or set aside in light of subsequent case law, including Ognevenko v Russia.
5. What, if any, penalty should be imposed on the POA for the breaches.

Arguments of the Parties

Appellant's Arguments (Secretary of State for Justice)

• The POA breached the injunction by inducing and supporting industrial action on two occasions.
• The injunction was lawfully granted following a contested trial and remains in force.
• The POA had notice of the injunction and its penal consequences.
• The POA's human rights arguments do not provide a defence to contempt and do not justify non-compliance.
• The existing framework of dispute resolution and safeguards adequately compensates for restrictions on industrial action.
• The court should impose an appropriate penalty reflecting the seriousness and deliberate nature of the breaches.

Appellee's Arguments (Prison Officers' Association)

• The injunction breaches the POA's Convention rights under Articles 11 (freedom of association), 3 (prohibition of degrading treatment), and 14 (prohibition of discrimination).
• The absolute ban on industrial action is disproportionate without compensating measures such as binding arbitration or minimum service agreements.
• The injunction unlawfully restricts the POA's ability to advise or support members contemplating withholding services.
• Section 127 of the Criminal Justice and Public Order Act 1994 should be read down to be compatible with the Convention, meaning the POA's actions were not unlawful under that statute.
• Even if in contempt, no penalty should be imposed due to mitigating factors including the absence of harm and the POA's role in protecting members in dangerous conditions.
• The POA sought to vary or set aside the injunction based on developments in human rights law post-dating the original order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ognevenko v Russia (2019) 69 EHRR 9	Clarification that restrictions on strike action in essential services require adequate compensatory safeguards.	The court considered this case but found it did not establish a new legal principle mandating binding arbitration or minimum service agreements; the existing safeguards in the UK context were sufficient.
Boddington v British Railways Board [1999] 2 AC 143	Whether a defence based on ultra vires status of legislation or byelaw can be raised in enforcement proceedings.	The court held the analogy did not apply; a valid court order must be obeyed unless and until set aside, regardless of subsequent legal arguments.
Hadkinson v Hadkinson [1952] P 285	Obligation to obey court orders regardless of belief about their validity.	Emphasised the strict obligation to comply with injunctions, reinforcing that disobedience is contempt even if the order is believed irregular or void.
Masri v Consolidated Contractors International Company SAL [2011] EWHC 1024 (Comm)	Elements required to establish contempt for breach of injunction.	Applied the three elements: knowledge of order, breach, and knowledge of facts constituting breach.
Devere v Hither Green Developments Ltd [2015] EWCA Civ 1365	Approval of the test for contempt in injunction cases.	Confirmed the elements of contempt as applied in this case.
R (Bempoa) v Southwark LBC [2002] EWHC 153 (Admin)	Discretion in imposing sanctions for contempt and the role of public humiliation as a sanction.	Considered but rejected the argument that public humiliation alone was an adequate penalty here due to the seriousness of breaches.
Ghaidan v Godin-Mendoza [2004] 2 AC 557	Limits of statutory interpretation under Human Rights Act s.3.	Held that legislation cannot be read in a way incompatible with fundamental features; applied to reject reading down s.127 to allow conditional strike bans.
R v A [2002] 1 AC 45	Interpretation of legislation under Human Rights Act s.3.	Confirmed courts can read legislation compatibly with Convention rights where possible, but not altering fundamental features.
Rabone and another v Pennine Care NHS Trust [2012] 2 AC 72	Definition of real and immediate risk under Article 3.	Applied to reject the POA's argument that the injunction interfered with Article 3 rights.
R(S) v Chief Constable of South Yorkshire Police [2004] UKHL 39	Framework for assessing discrimination under Article 14 ("Michalak questions").	Applied to conclude no breach of Article 14 as prison officers are not in an analogous position to other workers.

Court's Reasoning and Analysis

The court began by confirming the procedural correctness of the contempt application and the burden of proof to the criminal standard. It found that the POA knew of the injunction's terms and the facts constituting breaches on 14 September 2018 and 21 February 2019, and that the POA induced and supported industrial action on those dates, thus committing contempt.

The court rejected the POA's human rights defence, holding that a valid court order must be obeyed unless and until set aside or varied, regardless of subsequent legal arguments or developments in case law. The court noted that the POA had opportunities to challenge the injunction earlier but did not do so until after breaches occurred.

Regarding Article 11 (freedom of association), the court acknowledged the right to strike is recognized by the European Court of Human Rights but is qualified and can be restricted for essential services. The court found that the absolute ban on industrial action in s.127 of the 1994 Act and the injunction was a proportionate and legitimate restriction given the exceptional risks in the prison environment.

The POA's argument that the ban was disproportionate due to a lack of binding arbitration or minimum service agreements was rejected. The court held that while the existing compensatory mechanisms were not perfect, there is no hard-edged requirement for binding arbitration or minimum service agreements under Article 11 or international law. The court accepted that the safeguards in place provide adequate protection and means for the POA to represent members' interests.

The court also rejected the Article 3 argument that the POA must be able to advise members to withhold services due to serious and imminent danger, finding that the risk arises from the prison environment, not the injunction, and that the prohibition on industrial action reduces risks by maintaining staffing levels. The POA may advise on dangerous conditions but cannot induce or support strike action.

On the Article 14 discrimination claim, the court found prison officers are not in an analogous position to other workers because of the essential and sensitive nature of their work. The difference in treatment was objectively justified for public safety reasons, akin to restrictions on police and armed forces.

The court addressed the POA's domestic law challenge to the injunction's breadth and concluded that the injunction's terms are clear and consistent with s.127 of the 1994 Act, prohibiting inducement, authorisation, or support of industrial action but not general support or sympathy for members.

On penalty, the court rejected the POA's mitigation arguments, emphasizing that the breaches were deliberate, serious, and part of a history of unlawful industrial action despite previous injunctions and warnings. The court noted the POA's financial capacity to pay fines without burdening ordinary members and imposed a total fine of £210,000 (£95,000 for the first breach and £115,000 for the second).

Finally, the court found no basis to vary or discharge the injunction, given the lawfulness and proportionality of its terms and the absence of new grounds justifying such relief.

Holding and Implications

The court FOUND THE POA IN CONTEMPT OF COURT for inducing and supporting industrial action in breach of the permanent injunction.

The injunction was affirmed as lawful, proportionate, and consistent with domestic and Convention rights. The POA was ordered to pay a total fine of £210,000 as an appropriate penalty for the breaches.

The decision reinforces the principle that court orders must be obeyed unless set aside, and that restrictions on industrial action in essential services like prisons are justified and enforceable despite human rights challenges. The ruling also clarifies that compensatory mechanisms need not include binding arbitration or minimum service agreements to satisfy proportionality under Article 11. No new precedent was established beyond the application of established legal principles to the facts.