Category: PAVA
The disproportionate use of PAVA spray in prisons has become “normalised”
Questions remain over PAVA spray usage in prisons
We have today written to the prisons minister requesting more information about PAVA use in prisons. As we reported last year, we gave expert evidence in support of litigation brought by an individual prisoner and also supported by the Equality and Human Rights Commission. This produced some important outcomes putting on record commitments from the ministry. Our letter to the minister asks for evidence that those commitments are now being met. But it also repeats the request for other data which will allow for proper external scrutiny, and makes proposals to strengthen the central and local governance of use of force more generally.
There has been some progress. Data is now made available that shows how often PAVA has been deployed, with some information about the protected characteristics of those involved. But our letter makes clear that what is currently disclosed raises as many questions as it answers, and that there is critically important information which is still kept secret.
It is worrying, to put it mildly, that PAVA is ever being used at the moment when almost all prisoners are spending almost all their time locked in cell. But as prison regimes eventually start to relax when lockdown finally comes to an end, the potential for increased use is obvious. So it is crucial that steps are taken now to meet the multiple promises that have been made about ensuring that the use of PAVA is an absolute last resort. The decision to secretly extend PAVA deployment to all adult prisons in the middle of the pandemic means that it is available in prisons where all the promised rollout safeguards simply hadn’t been completed.
We will continue to argue that the decision to issue PAVA to all officers was a strategic mistake and should be reversed. But until that happens, we will hold the prison service and ministers to the standards they have set themselves. Securing public access to the information which will show whether or not they are doing so is the crucial tool for achieving that.
Preventing the unlawful use of PAVA spray in prisons
The Prison Reform Trust provided expert evidence to an Equality and Human Rights Commission funded case, challenging the Secretary of State for Justice’s decision to make PAVA spray available in prisons during the coronavirus pandemic, before agreed safeguards were in place.
The EHRC has now published a summary of the case, and as it points out, there are some important outcomes from it. The fact that the commitments the prison service have made are public and will produce more information that we and others can scrutinise are both important, as is the EHRC’s continuing interest in making sure the commitments are met.
We will publish a more detailed piece in the new year about the litigation, the questions that remain and the way we intend to maintain a close scrutiny of PAVA and its impact in future.
Prison Reform Trust calls on government to reverse PAVA spray roll out
Trust highlights urgent concerns over impact of PAVA spray on BAME prisoners and potential spread of Covid-19
The Prison Reform Trust has issued an urgent call for the government to reverse its decision to roll out PAVA spray to all staff trained in its use in prisons on the adult male closed estate.
The government’s unexpected decision, which was made public in a letter to stakeholders on 18 May, goes against a previous commitment made in April to pause the roll out of the controversial weapon in prisons for three months as a consequence of the Covid-19 pandemic.
In a letter to the prisons minister Lucy Frazer published today (Saturday 13 June), the Trust highlights concerns regarding the disproportionate impact of the roll out on the 27% of prisoners from Black, Asian and Minority Ethnic (BAME) backgrounds, and the potential risk of contributing to the spread of Covid-19 in prisons.
Evidence over many years has consistently shown that people in prison from BAME backgrounds are more likely to have force used against them than white prisoners.
The government’s own equality assessment of the roll out found that the weapon “has been drawn or used more against BAME prisoners. The evidence from wider use of force would suggest that this trend will continue as roll out progresses.”
Despite these concerns, the external advice and scrutiny panel, set up by the government to support the implementation of the recommendations of David Lammy’s review of racial disproportionality in the criminal justice system, was not even given notice of, still less consulted about, the decision to roll out the spray.
In its letter to the minister, the Trust also warns that the use of the incapacitant spray, which causes people affected to cough, is untested in the context of the Covid-19 pandemic, and risks contributing to the spread of the disease in prisons.
It also highlights the risk to people suffering any health condition affecting their breathing, of which Covid-19 is one. Last week a black prisoner reported as suffering from asthma died after being pepper sprayed in a New York prison.
The Trust asks the minister “to confirm that medical advice was sought about the specific risks associated with PAVA use in prison during the pandemic”.
The letter also highlights concerns that the manner of the roll out “appears to breach undertakings given in public documents and…promises made in private on the government’s behalf to the Divisional Court”.
In its equality assessment of the roll out and in confidential assurances given to the courts in order to settle litigation supported by the Equality and Human Rights Commission, the government made a series of undertakings to introduce safeguards before PAVA was issued in more prisons.
Officials also gave undertakings in response to concerns raised by the Prison Reform Trust and many others. In total, the Trust has counted 31 commitments. To the best of its knowledge, 25 remain unmet wholly or in part.
In its evidence to the Justice Committee published yesterday, the Independent Monitoring Board said it was “highly regrettable that the Prison Service authorised the wider use of PAVA spray, without the previously agreed safeguards, and without informing scrutiny bodies or stakeholders of the change in policy, having previously stated that the roll-out had been suspended.”
Concluding the letter, Peter Dawson, director of the Prison Reform Trust, says:
“It would be hard to imagine a more important issue in terms of demonstrating your department’s commitment to the equitable treatment of people with protected characteristics under the law. As events in America have shown, the abuse of force epitomises and symbolises a much wider pattern of discrimination, and that is true in our prisons too. I strongly urge you to reverse the decision that has been taken, and instead to keep the many promises that have been broken.”
Find out more about our work on PAVA over the last two years by clicking here.
PAVA spray – letter from EQUAL to Lucy Frazer
EQUAL—a National Independent Advisory Group that works collaboratively to address the poorer outcomes experienced by BAME and Muslim people in the criminal justice system—has written to prisons minister Lucy Frazer today to express its concerns about the roll out of PAVA incapacitant spray.
The letter highlights the inadequacy of current safeguards to prevent the disproportionate use of PAVA against against BAME people in prison, as well as the persistent, unexplained, problem of racially disproportionate use of force in prisons.
Click here to read a copy of the letter.
Correction to the Ministry of Justice’s racial disparity in the criminal justice system 2020 report
Following the publication of the Ministry of Justice report, Tackling racial disparity in the criminal justice system: 2020 in February this year, the HMPPS External Advice and Scrutiny Panel (EASP)—established following David Lammy’s independent review in 2017—wrote to raise its concerns that it had been wrongly represented.
The report did not make clear that the EASP continued to have concerns that safeguards to address racially disproportionate outcomes in use of force were inadequate, and that they were very likely to persist in the use of PAVA incapacitant spray.
Following this, the Ministry of Justice has issued a correction to the report, published on 27 April, making this clear.
The corrected paragraph is highlighted (in red) below:
“Disproportionality considerations have been incorporated into the ‘readiness assessment’ for the rollout of PAVA incapacitant spray. This will see a requirement for prisons to demonstrate they are monitoring for any disproportionality in their use of force, they are able to understand any present trends and have appropriate action plans in place to tackle any identified disproportionality before they are signed off to be equipped with PAVA.
“The earlier version of this publication referenced engagement with the HMPPS External Advice and Scrutiny Panel on the disproportionality considerations which have been incorporated into the readiness assessments for the rollout of PAVA incapacitant spray. During this engagement the EASP argued that evidence shows racially disproportionate outcomes in use of force which persist, are unexplained, and, in their view, are therefore very likely to occur in the use of PAVA. Following publication, the EASP have expressed concern that the earlier version of this document did not sufficiently represent these concerns and have further highlighted that they currently do not feel there are sufficient safeguards in place to address these issues. The EASP will be consulted on the revised Use of Force policy framework.”
PAVA Freedom of Information request
As part of our continuing work to scrutinise the roll out of PAVA incapacitant spray to prisons across the adult male closed estate, the Prison Reform Trust submitted a Freedom of Information request seeking further information about the adequacy of safeguarding measures.
The response includes a copy of the readiness assessment, training plan and a copy of the Prison Group Director sign off for HMP Hindley—one of the first prisons to be approved for the roll out of PAVA following the initial pilot.
The PAVA debate—why the prison service must think again
Writing for the prison newspaper Inside Time, Prison Reform Trust Director, Peter Dawson examines the case for a rethink on the introduction of PAVA spray.
Everyone knows that violence in prison has got much, much worse over the last 5 years or so. The statistics are alarming – every quarterly publication describes a new record level of assaults against both prisoners and staff. Violence is both more frequent and more severe. It’s not surprising that people in prison, whether they live there or work there, say “something must be done”.
That was exactly the reaction of both staff and some prisoners who were questioned as part of the evaluation of a pilot scheme in 4 prisons where PAVA spray – a ‘chemical incapacitant’ – was issued to all officers. The evaluation actually showed that PAVA did nothing to reduce violence, but people seemed resigned to its use in any case. Staff in particular felt reassured; regardless of the evidence. ‘Something’ needed to be done. The trouble is that ‘something’ in this case risks making matters a great deal worse in the long run.
I used to govern a big local prison and although that was before the spike in violence of the last few years, dealing with the aftermath of violence was still a significant part of the job. It could be the worst part; I am never going to forget telling a colleague and friend that they were to be medically retired because of irreversible injury suffered during an incident involving C and R. I really struggled to reach a view about whether PAVA might actually be a safer way to deal with violence than what the prison service currently does. I understood the argument that having the means to incapacitate someone without either putting ‘hands on’ or, worse, using an extendable baton, could reduce the likelihood of really serious injury.
So the prison service decision to trial the use of PAVA in 4 prisons made a lot of sense, as did the commitment to a detailed evaluation, which would include the views of staff and prisoners, but from that point on, things started to go downhill.
In October, the prisons minister announced that PAVA was to be issued to all prison officers in the adult male estate, following a ‘successful trial’. What he didn’t do was publish the evaluation of that trial. So the Prison Reform Trust and others asked to see it. A few weeks later, we were sent a document marked ‘sensitive-draft’. We examined it carefully and wrote back to the minister with a request that the national roll-out should be paused because of serious concerns about what the evaluation report showed. He politely refused.
Why were we so concerned, and why do I now have no doubt that the decision to issue PAVA to all staff is a serious mistake?
First, the pilot showed that staff did not use PAVA in line with the instructions they had been given. The justification for trialling it, repeated by the minister, was that it was intended only for exceptional circumstances where there was serious violence or an imminent risk of it taking place. The guidance officers received for the pilot imposed some sensible extra conditions, making clear that PAVA should not be used against people with mental health conditions, in incidents at height, or in confined spaces for example.
What actually happened was that staff used PAVA when it made sense to them. I examined the case study of every time PAVA was deployed, and found that in 34 of the 50 cases it appeared that the guidance had been ignored. In a quarter of cases PAVA was just used incorrectly, for example in incidents at height, or directed at the wrong person. In a quarter, it was plainly not the last resort; other methods to deal with the perceived threat were available. And in a third, there was not an appropriate justification for its use – for example it was used to enforce an order, something the guidance explicitly ruled out.
I remember a colleague with a military background once telling me that “the first casualty of battle is the plan you had before it started”, and that’s what happened with PAVA. What the prison service said should happen didn’t happen in reality. Unfortunately, what we already know from existing use of force techniques is that the management safeguards against misuse don’t work very well. Post-incident paperwork is not completed properly, or at all; body worn cameras are not worn or not turned on, or footage is lost; complaints systems don’t work.
We also know that some people are much more likely to have force used against them than others – coming from an ethnic minority, or having mental health problems, for example, make you statistically more likely to have force used against you. In the PAVA evaluation, that data wasn’t even included. The government has a statutory duty to assess the equality impact of important new policies before they are implemented – on PAVA it simply hadn’t done that when the minister made his announcement in October.
Why does this matter so much?
First, the message PAVA sends – whether the prison service means it or not – is that officers can spend less time working out why someone is angry, and less time trying to find a solution where no-one gets hurt. ‘C and R in a can’ is what some have already christened PAVA. It was no surprise that prisoners’ perceptions of staff carrying PAVA were that they were less interested in resolving conflict, and less fair.
Second, the way the decision has been taken – keeping an evaluation report under wraps and ignoring what it shows – undermines the commitment to policies grounded in evidence. This is way too important a decision to take on any other basis.
And lastly, because the evaluation report also looked at 4 prisons where PAVA wasn’t used, but keyworking was being rolled out. Instead of prisoners’ confidence in staff being undermined, it found confidence increasing. At the very moment when more staff and better training might be making a difference, the prison service is about to make a change it can’t control and can’t undo.
Prison Reform Trust calls for urgent moratorium on PAVA spray roll out
The Prison Reform Trust has called for an urgent moratorium on the planned roll out of PAVA spray to prison officers in the adult male estate.
It warns that the roll out, which is due to begin in the New Year, is likely to do more harm than good and undermine the safety of prisoners and prison officers.
After the decision to roll out PAVA was announced in early October, the Prison Minister Rory Stewart said that PAVA would only be used in “exceptional circumstances” to protect staff from the threat or perceived threat of serious violence.
However, a new analysis of the pilot evaluation by PRT’s Director Peter Dawson, who is a former prison governor, shows that nearly two thirds (64%) of incidents in which PAVA spray was deployed by prison staff may have contravened the guidance for its use.
PAVA was deployed 50 times during the course of the pilot which took place in four prisons between January and June 2018.
PRT’s analysis reveals that in 34% of cases an inappropriate justification was used to authorise its use; in 24% of cases its use was unsafe; and in 24% of cases an alternative was available. In several cases the use of PAVA was outside the guidance for more than one reason.
In one case, PAVA was deployed against a prisoner who was self-harming and where there was no indication of a threat to the officer.
In another, PAVA was sprayed at the same prisoner three times in ten minutes, including at point blank range through the cell flap. The prisoner against whom it was deployed had clear, known and obvious mental health issues.
In a number of incidents there was no indication of a threat of harm and PAVA was used to enforce an order, in direct contravention of the guidance. In some cases, PAVA was deployed against the wrong prisoner, and in others officers mistakenly sprayed themselves and other colleagues.
The £2m roll out to prison officers on the closed adult male estate was announced in October. At the time of the announcement, the evaluation of the pilot was not published or even summarised but was subsequently revealed through a freedom of information request.
In a letter to PRT in November, Rory Stewart said that PAVA “will be used in exceptional circumstances where a member of staff or is faced with serious violence, or the perceived threat of serious violence.”
Announcing the roll out, the government claimed that PAVA would be “a crucial step to help reduce serious harm”. It assured that PAVA would “only be deployed in limited circumstances when there is serious violence or an imminent risk of it taking place, and where its deployment will reduce the risk of serious injury”. The evidence from the pilot is that none of those tests were met.
The author of the analysis, PRT’s Director Peter Dawson, has 12 years’ experience of dealing with and authorising use of force in custody as a former prison governor. On the back of the analysis, Dawson has written to the Prisons Minister calling for an urgent moratorium on the planned roll out.
In his letter, Dawson warns that “the availability of such a potent weapon has immediately created a norm for its use which is different from what you intended, and which the safeguards in place – even in a closely monitored pilot – failed to control. Perhaps as a consequence, there is clear evidence from the pilot that deployment of PAVA undermined the trust that prisoners had in officers and in the legitimacy of the authority those officers hold.”
The evaluation reveals that violence levels in the four prisons continued to rise during the period of the pilot. According to the Trust, this shows “conclusively that there was no objective basis for the increase in staff confidence” which was used as the main justification for the roll out. “PAVA did not reduce violence, whatever staff felt, but did undermine the trust prisoners felt in staff.”
Violence also continued to rise in the four “control” prisons in the pilot, where PAVA was not deployed. But in those prisons, relationships between prisoners and staff appeared to be slowly improving as a result of the introduction of keyworking – dedicated time for officers to spend helping prisoners cope with their sentence and prepare for release.
Far from being a tool that gave confidence to inexperienced staff, the evaluation shows that PAVA was used predominantly by experienced staff and predominantly in situations where the ability to use existing control and restraint methods (with three or more staff present) was available.
PRT’s paper also criticises the poor quality of the equality analysis conducted as part of the pilot evaluation, which was disclosed to the charity through correspondence with the Minister. Furthermore, there has been no equality impact assessment of the decision to proceed with a national roll out. This is despite clear evidence that current disciplinary and use of force measures are disproportionate and discriminatory, and casts doubt on whether the department is meeting its statutory duties under equalities legislation.
PRT’s analysis acknowledges that the decision to roll out PAVA was made in the context of “an apparently inexorable rise in violence across much of the prison estate. That rise includes an increase in severity as well as volume of violent incidents, with both prisoners and staff as victims. It coincides with many prisons absorbing a very significant loss of experienced staff and an influx of newly trained staff, with an associated loss of confidence overall. PRT realises that the rollout of PAVA spray was only ever contemplated because of the risk to life that violence in prison represents, and that the policy has been subject to lengthy debate within the prison service.”
But the analysis concludes that, “Unfortunately, that debate has not taken place outside the service or the Ministry of Justice to any significant degree, and the evidence to inform it has been kept secret until after the decision to roll out was announced. That cannot be acceptable in a matter of such long-term significance to the welfare of all those who live and work in prisons. Perhaps the only uncontroversial aspect of the debate is that its outcome will have a profound and enduring impact on the ethos and culture of prisons – it is too important to be concluded behind closed doors.”
Click here to download a copy of our position paper on the introduction of PAVA, which includes a copy of the evaluation report.
