Ministry of Justice v Prison Officers' Association

Section 127 of the Criminal Justice and Public Order Act 1994 is not confined to services which prison officers are contractually obliged to provide. Industrial action includes inducing officers to withhold services they would otherwise provide as prison officers. Alternatively, action may fall within the definition where, viewed in its totality, it would be likely to put the safety of any person at risk. A nationwide withdrawal from voluntary roles such as first aid and prisoner safety assessments could satisfy that test. An earlier injunction directed at particular contemplated action should not automatically be read as imposing a continuing restraint on later, distinct action.

The Secretary of State for Justice sought an urgent injunction against the Prison Officers’ Association. The Association proposed that its members withdraw from voluntary roles and other activities, including first aid, prisoner risk assessments, overtime and Payment Plus, as part of an escalating industrial campaign.

The claimant alleged breaches of section 127 of the Criminal Justice and Public Order Act 1994 and of an earlier injunction made by Kerr J on 15 November 2016. The central issues were whether the proposed conduct fell within section 127 and whether the earlier order applied to it.

1. Earlier injunction. The order made by Kerr J on 15 November 2016 was directed to the particular action then contemplated. Despite its wide wording, it did not impose a continuing obligation applicable to any future proposed action or make later action contempt of court. The observations of Lord Hoffmann in Burgess & Ors v Stevedoring Services Ltd (Bermuda) [2002] 1 WLR 2838 supported that conclusion.
2. Withholding services. Section 127(1A)(a) does not require the withheld services to be services which the officer could be contractually required or instructed to undertake. The natural meaning is withholding any services which the person would otherwise have provided as a prison officer. The proposed withdrawal therefore constituted industrial action on that basis.
3. Risk to safety. In any event, the proposed action fell within section 127(1A)(b). The court had to consider the totality of the proposed national action rather than each individual activity in isolation. A policy of withdrawing from first-aid provision and assessments concerning prisoners at risk of suicide or self-harm was likely to put prisoners’ safety at risk, with the risk increased when the proposed actions were viewed collectively.
4. The threatened breach of section 127 made it plainly just and convenient to grant an injunction. The court proposed to grant the injunction, subject to agreement on its terms.

The judgment records an earlier injunction made by Kerr J on 15 November 2016 in related proceedings. No appeal from the present decision is stated.