Secretary of State for Justice v Prison Officers Association

A person who knows of a court order must comply with it unless and until it is discharged, varied or otherwise set aside. A later argument that the order was unlawful or incompatible with Convention rights is not a defence to contempt.

A complete prohibition on inducing prison officers to take industrial action may be proportionate under Article 11 where prison work is an essential service and effective compensatory mechanisms enable union representation. The prohibition does not prevent general advice, sympathy or support for members, but it does prevent encouragement or assistance for industrial action itself.

The Secretary of State applied under CPR 81 for an appropriate penalty against the Prison Officers Association for contempt by breach of a permanent injunction made after a contested trial. The injunction prohibited the Association from inducing, authorising or supporting industrial action by prison officers.

The Association admitted that the relevant conduct occurred but argued that the injunction should not be enforced because it infringed Articles 3, 11 and 14 of the Convention, conflicted with section 44(1)(d) of the Employment Rights Act 1996, or was wider than section 127 of the Criminal Justice and Public Order Act 1994. It also sought to set aside or vary the injunction.

1. Contempt established. The court applied the three requirements identified in Masri v Consolidated Contractors International Company SAL [2011] EWHC 1024 (Comm), as approved in Devere v Hither Green Developments Ltd [2015] EWCA Civ 1365: knowledge of the order, conduct involving breach, and knowledge of the facts constituting the breach. No separate requirement existed to prove knowledge that the conduct was legally contemptuous. The Association induced national strike action on 14 September 2018 and supported and induced strike action at HMP Liverpool on 21 February 2019.
2. Effect of the existing injunction. Following Hadkinson v Hadkinson [1952] P 285, endorsed in Isaacs v Robertson [1985] AC 97, the Association was required to obey the injunction whether or not it considered the order irregular or invalid. Its proper course was to apply for discharge or variation. Boddington v British Railways Board [1999] 2 AC 143 did not provide an analogy because this was a final High Court order, not an ultra vires bylaw relied on in a prosecution.
3. Convention arguments. Section 127 imposed an outright ban on inducing prison officers to take industrial action. Section 3 of the Human Rights Act 1998 could not be used to insert a condition based on compensatory safeguards because that would contradict a fundamental feature of the legislation. Even a declaration of incompatibility under section 4 would not affect the validity, operation or enforcement of section 127.
4. Article 11. Prison services were a truly essential service. The legislative prohibition pursued legitimate aims and was proportionate. Ognevenko v Russia (2019) 69 EHRR 9 established no new rule requiring binding arbitration or a minimum-service agreement. The relevant question was whether the overall framework of safeguards had force and efficacy and was not a sham. The available consultation, dispute-resolution, health-and-safety and pay mechanisms satisfied that standard.
5. Articles 3 and 14. The prohibition did not create or enhance an Article 3 risk and did not prevent general advice about dangerous conditions. Section 44(1)(d) protected employees from detriment but did not protect a union which induced withholding of services. Prison officers were not in an analogous position to ordinary workers for Article 14 purposes because withdrawal of their services created exceptional risks to prisoners, colleagues and the public.
6. Meaning of “supporting”. The injunction prohibited support for industrial action itself, not general sympathy, guidance or representation. The Association could act as an intermediary provided its conduct did not amount directly or indirectly to encouragement or assistance for the industrial action.
7. Penalty and future relief. The deliberate breaches, the Association’s knowledge of the order and its history of previous injunctions warranted fines of £95,000 and £115,000. The total fine was £210,000. No basis existed to discharge or vary the injunction.