Ministry of Justice v The Prison Officers' Association

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Jay
Judgment Date19 July 2017
Neutral Citation[2017] EWHC 1839 (QB)
Docket NumberCase No: HQ17X00700

[2017] EWHC 1839 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Jay

Case No: HQ17X00700

Between:
Ministry of Justice
Claimant
and
The Prison Officers' Association
Defendant

Daniel Stilitz QC and Jane Russell (instructed by Government Legal Department) for the Claimant

John Hendy QC and Stuart Brittenden (instructed by POA In-House Legal) for the Defendant

Hearing dates: 4 th and 5 th July 2017

Mr Justice Jay

A. Introduction

1

The Claimant ("the MoJ") is the government department with powers and duties relating to Her Majesty's prisons. The entity within the MoJ with specific responsibility is currently known as Her Majesty's Prison and Probation Service ("HMPPS"). The Defendant ("the POA") is an independent Trade Union representing uniformed prison grades and other staff working within the field of secure forensic psychiatric care.

2

HMPPS is under considerable pressure at the moment and has been for some time. It is uncontroversial that Government has been operating in circumstances of financial stringency, and between 2010 and 2015 the number of prison officers was reduced by almost one-third. I was told that the current complement of prison officers is approximately 20,000 but my own researches reveal that the figure is in the region of 18,400. Assaults and violence within prisons have been growing, together with rates of self-harm and suicide. Inevitably, this has increased the pressure on prison officers whose job always has been difficult and stressful. Thus, whilst the physical dangers and rigours of the job have increased, prison officers have felt commensurately undervalued and diminished.

3

On 27 th February 2017 the POA issued its Circular 21/2017 ("the Circular") which lies at the heart of these proceedings. I will need to examine its terms and likely effects with some care. The MoJ's case is that the Circular amounted to an inducement to the POA's members to withdraw services in breach of section 127 of the Criminal Justice and Public Order Act 1994 ("the CJPOA"). The POA's case is that the Circular did no more that instruct its members to comply with the letter of their contractual obligations, such that no breach by them, and no concomitant inducement by the POA for the purposes of section 127, arose.

4

This, in broad outline, is the central issue which arises in this expedited trial for final declaratory and injunctive relief. There are subordinate issues which I am also required to resolve, and which I will identify in due course.

5

The resolution of the issues between the parties turns largely on documentary evidence. I also received witness statements from Martin Beecroft (dated 28 th February, 8 th June and 23 rd June 2017), Francis Stuart (dated 8 th June 2017) and Phil Copple (dated 9 th June 2017) for the MoJ, and Glynn Travis (dated 28 th February and 9 th June 2017), Steve Gillan (dated 9 th June 2017), David Cook (dated 9 th June 2017) and Wendy Price (dated 9 th June 2017) for the POA.

6

I heard oral evidence from Mr Copple, Mr Travis and Mr Gillan. I will address their evidence to the extent necessary under chapters E and F of this judgment.

7

This judgment is divided into the following chapters:

B. Essential Factual Background.

C. Relevant Legislative Provisions.

D. The Circular.

E. Evidence Bearing on the Contractual Position.

F. Other Relevant Evidence.

G. Identification of the Issues.

H. The Rival Contentions.

I. Findings, Discussion and Conclusions.

B. Essential Factual Background

8

It is unnecessary to examine the history of the relationship between the MoJ and the POA over the years. I will take up the story in the autumn of last year.

9

On 28 th October and 15 th November 2016 the POA called for strike action by issuing circulars 97/2016 and 104/2016. Kerr J ordered injunctive relief on 15 th November 2016. The MoJ mentions that, although Kerr J's order was granted at 14:30 that day, the circular informing members of its existence did not go onto the POA's website until approximately 18:10. According to paragraph 40 of Martin Beecroft's first witness statement, on 15 th November 2016 (he does not specify the time) two prison officers were assaulted, two prisoners required restraint, and six prisoners were moved out of HMP Exeter. A cell fire occurred at HMP Littlehey.

10

Further strike action was threatened on 21 st February 2017, but the parties were able to come to terms.

11

As I have said, the Circular was issued on 27 th February 2017. I will be setting out its provisions in more detail, but by way of summary it instructed POA's members to: (i) conduct branch meetings outside prison establishments at 7:30am on Wednesday 1 st March 2017, (ii) only attend their workplaces at the official start time at the gate, (iii) withdraw from a range of duties described as "voluntary tasks" until further notice, and (iv) embark on a course of withdrawal from "Payment Plus", an overtime scheme. The Circular also instructed members fully to comply with the provisions of Bulletin No.8 "if the Governor asks members to work additional hours unpaid".

12

On 28 th February 2017, at approximately 16:30, Leggatt J granted urgent injunctive relief. Mr John Hendy QC attended the hearing in Court 37, but his clients had been given little notice of it and I accept did not have a proper opportunity to prepare and marshal the evidence and arguments which have been carefully arrayed before me. Leggatt J ordered the POA to withdraw the Circular. His reasoning on the critical question was as follows (reported at [2017] IRLR 621):

"8. … as I construe section 127(1A) of the 1994 Act, the definition of "industrial action" is not confined to services which prison officers may be contractually obliged to undertake. Considered by reference to the purpose of the provision which I have identified earlier, I see no reason to put such a gloss on the language used. It seems to me that the natural and ordinary meaning of the words is that it will constitute industrial action if a person induces a prison officer to withhold any services which that person would otherwise have provided as a prison officer. I see no reason for reading into the definition the qualification that the services not only must be services that would be provided as a prison officer, but services which the individual could be contractually required or instructed to undertake.

9. In any event, even if that is wrong, on the material before the court today it seems to me that the evidence indicates that the proposed action will constitute industrial action also in the second statutory sense, that is to say, "action that would be likely to put at risk the safety of any person, whether a prisoner or a person working at a prison etc.

10. It is necessary in that regard to consider the totality of the action which is to be taken and not to focus narrowly on each individual aspect of it. What is being proposed is on a national basis that all members of the POA should withdraw from a whole series of voluntary roles. Those include such matters as the provision of first aid and undertaking assessments to determine whether prisoners are at risk of suicide and self-harm. It seems to me self-evident that a nationwide policy of withdrawing from providing such assessments, to take that as an example, gives rise to a risk to the safety of prisoners. When one looks at the proposed actions as a whole, that risk is further magnified."

Although Leggatt J did not apply the serious issue to be tried test, and effectively decided that the MoJ's case was made out (compare American Cyanamid v Ethicon [1975] AC 396 with NWL Ltd v Woods [1979] 1 WLR 1294), I do not regard myself as bound by his reasoning. Not merely did Leggatt J not hear full argument on the point, his decision is only dispositive of the issue between the parties at all material times up to trial. Leggatt J made an Order restraining the POA, its branches and members from inducing, authorising or supporting any form of industrial action in contravention of section 127 of the CJPOA, and requiring the POA to withdraw the Circular in full.

13

Pursuant to Leggatt J's Order, the Circular was withdrawn at approximately 18:30 on 28th February 2017 by Circular 23/2017. On the same day, the National Executive Committee ("NEC") of the POA passed a motion instructing all its members to attend branch meetings "outside of their establishments at their own time prior to commencement of duty on the morning of Wednesday 1 st March". Mr Daniel Stilitz QC put to the POA's General Secretary, Mr Steve Gillan, that this was a confusing and contradictory instruction – members were simultaneously being advised not to attend meetings at 7:30am, which had been the plan under the Circular. However, I accept his evidence that the purpose of these branch meetings, to be held at unspecified times "at their own time", was merely to explain and clarify the position to POA's members; and, furthermore, there is no evidence that any disruption was caused.

14

There was a further uncontested hearing before Turner J on 14 th March 2017 when the injunction was held in place until the trial date, with an expedited timetable imposed.

C. Relevant Legislative Provisions

15

Section 127 of the CJPOA provides, in so far as is material, as follows:

" 127 Inducements to withhold services or to indiscipline.

(1) A person contravenes this subsection if he induces a prison officer—

(a) to take (or continue to take) any industrial action;

(b) to commit a breach of discipline.

(1A) In subsection (1) "industrial action" means—

(a) the withholding of services as a prison officer; or

(b) any action that would be likely to put at risk the safety of any person (whether a prisoner, a person working at or visiting a prison, a person working with prisoners or a...

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