Preventing the unlawful use of PAVA spray in prisons

Is the Ministry of Justice’s intention to keep emergency coronavirus PAVA arrangements in place lawful? 

PAVA incapacitant spray is a synthetic pepper spray used as a form of restraint. In October 2018, the Ministry of Justice announced it would roll out PAVA spray across all adult male closed prisons in England and Wales.

Evidence from a six-month trial between January and June 2018 showed a high risk that PAVA would be used unlawfully and that significant additional safeguards were needed to prevent discrimination. In our view, disabled people with mental health conditions and learning disabilities could be particularly at risk. Further analysis by the Ministry of Justice (PDF) revealed that younger people, Black and Muslim people were also subject to disproportionate use of force, which it could not explain.

In 2019 we funded a disabled prisoner’s application for judicial review of the decision to roll out PAVA nationally. The challenge was withdrawn after the Ministry of Justice committed to a number of changes to help make sure prisoners were better protected from mistreatment.

This meant that prisons would need to show they understood their use of force and any disproportionate treatment before they were authorised to use PAVA. Prison officers would receive more robust training and guidance. Prisons and the Ministry of Justice would more effectively monitor PAVA at the local and national levels, and race and equality liaison officers would be involved in use of force reviews. It was expected that the Ministry of Justice would introduce stronger governance for use of force and carry out further equality analysis.

However, the Ministry of Justice later authorised the use of PAVA in all adult male closed prisons at the height of coronavirus pandemic in 2020. Many prisons had not been assessed or passed as ‘ready’ to use PAVA.

Our strategic plan for 2019 to 2022 had a focus on protecting the rights of people in institutions and places of detention.

We took this case because we were concerned that the exceptional roll-out of PAVA was potentially unlawful. All prisons would be able to use PAVA under the exceptional arrangements, although many had not shown they had the necessary equality safeguards in place.

We provided legal assistance by funding a disabled prisoner to bring a further legal case against the Secretary of State for Justice, challenging the exceptional PAVA arrangements.

After the case was withdrawn on 28 October 2020, the Ministry of Justice implemented or committed to introduce a number of measures to help monitor and scrutinise PAVA use.

1. Prisons are required to record all available data for race, disability and other protected characteristics or vulnerabilities on the PAVA incident report form following any incident where PAVA is drawn or deployed. These forms are submitted centrally to HM Prison and Probation Service (HMPPS) for analysis. Information on PAVA and other use of force data is also readily available to prison inspectors.
2. The PAVA incident report form includes guidance on where to find data about disability on an individual’s record (including on the NOMIS database). Prisons should not rely solely on individuals self-reporting and must interrogate the information the prison holds about their potential vulnerabilities, if this has been disclosed. The central monitoring team will return any incident report forms with missing or incomplete data with a request for more information.
3. HMPPS will prioritise the development of a full range of reports on PAVA use by protected characteristic, focussing particularly on disability. Some analysis of PAVA use and disability is now included in the regular summary reports that continue to be shared with stakeholders, along with analysis by age, race and religion. HMPPS has carried out a preliminary analysis of PAVA use by disability and mental health as a basis for future regular reporting. Once work is completed to improve the recording of disability, HMPPS will be in a position to provide a wider range of reports on this characteristic.
4. HMPPS is implementing a new use of force data tool, and working towards being able to publish national use of force statistics.
5. Post-incident scrutiny must take place in prisons when PAVA is drawn or deployed. This should include engagement with individual prisoners who have been affected.
6. In line with advice from Public Health England, prisons will ensure PAVA is not used on individuals showing any signs or symptoms of COVID-19 infection or influenza-like illness, for example flu.
7. Notwithstanding the exceptional arrangements during coronavirus, all prisons must pass an assessment demonstrating they are ready for PAVA use, and complete a programme of staff training and briefing to prisoners. The readiness assessment includes being able to demonstrate that appropriate governance arrangements are in place, that the prison understands trends in its use of force and any disproportionality, and is taking prompt and appropriate action to address any issues.
8. All prisons must have a use of force committee to monitor and guard against disproportionality and other issues. Committees should meet regularly and have the appropriate authority to provide challenge. Their membership should be diverse, including someone who represents prisoners’ interests. New best practice guidance will recommend that use of force committees include service users and independent external members. The HMPPS external advice and scrutiny panel also has a role supporting overall scrutiny of PAVA use.
9. Further robust guidance on PAVA will be included in a forthcoming refresh of the HMPPS use of force policy framework.

We will continue to monitor PAVA use to ensure the Ministry of Justice follows through on its commitments. We will not rule out using our enforcement powers in future if there are concerns PAVA is being used inappropriately or disproportionately to restrain people sharing certain protected characteristics, particularly disabled people and those from Black and ethnic minority groups.

Because of our involvement in this case, the use of PAVA spray will be more tightly controlled and monitored. This should help prevent disproportionate use against prisoners sharing protected characteristics, in particular disabled people and those from Black and ethnic minority groups. The steps taken to improve equality monitoring for PAVA should contribute to redressing disproportionate use of force in prisons more broadly.

This case also highlights the importance of equality impact assessments to make sure that the rights of people with protected characteristics are respected in institutions and places of detention.

Clare Hayes, the solicitor acting for the Claimant said “The challenges that the Claimant have brought against the weaponisation of prison officers has repeatedly exposed the limits of what is known about discriminatory use of force across prisons. The Public Sector Equality Duty requires a full, conscious and informed confronting of the potential discriminatory impact of PAVA spray and consideration of how those impacts can be mitigated. It is startling that the Ministry of Justice apparently does not hold central information to answer even basic questions such as how many people incarcerated in prisons are disabled. More public reporting on PAVA will assist people affected, and those representing them, to scrutinise every use of PAVA, to be informed about their rights and to call the Prison Service to account where patterns of discrimination emerge.”