Published: 20 Aug 2019
People with mental health conditions and learning disabilities will be better protected from the misuse of chemical restraint in prison following a legal challenge that we funded.
We funded a disabled prisoner’s application for judicial review of the Justice Secretary’s decision to make PAVA spray available to prison officers in the adult male prison estate. The Ministry of Justice has now made changes to the way it intends to roll out the spray, including strengthened safeguards and requirements for prisons to record the protected characteristics of people it is used on. It has also introduced stronger guidance on when it can be used and will require prisons to demonstrate that they understand the trends in the use of force at their establishment before they will be signed off for PAVA.
We believed that the Ministry of Justice had not adequately considered the potential impact of rolling out PAVA on people who have mental health conditions or learning disabilities, which could leave them particularly vulnerable to its use. We were also concerned that the PAVA pilot scheme in four prisons exposed very significant risks of unlawful use of the spray and that significant additional safeguards were needed to mitigate the risk of the spray being used in a discriminatory way.
Following the launch of the legal action, the Ministry of Justice carried out a more detailed equality impact assessment. This revealed disproportionate use of force in prisons against younger people, black people and Muslim people, which the Ministry of Justice was unable to explain. It also uncovered a serious lack of data about the use of force on disabled people in prisons and limited understanding of learning disabilities by prison staff.
The Ministry of Justice has now committed to make a number of changes to the rollout which will help ensure prisoners are better protected from mistreatment. This includes providing more robust guidance and training for prison officers using PAVA, monitoring the use of PAVA across the country, and involving prison race and equality liaison officers in reviews of the use of force in prisons.
Individual prisons will have to demonstrate that they understand the trends in the use of force at their establishment, and any areas where it is being used disproportionately, before they are permitted to use the spray. They will also have to amend their use of force forms to record race, disability and other protected characteristics and note any other individual vulnerabilities of prisoners who have force used on them.
In light of the commitments made by the Ministry of Justice and evidence received during the litigation that indicated that the rate of PAVA use in the pilot prisons was reducing, the claimant has agreed to discontinue this legal action.
Rebecca Hilsenrath, Chief Executive of the Equality and Human Rights Commission, said:
'Everyone has the right to live without fear of inhumane treatment or punishment. We believe that without proper protection and oversight, rolling out PAVA would have left many prisoners vulnerable and in fear. We are pleased that the Ministry of Justice has recognised the need to take action to prevent the spray being used disproportionately on ethnic minority and disabled prisoners, and strengthened guidance that it must be a tool of last resort. We hope these changes will help to ensure that officers can protect themselves in a way that doesn’t jeopardise the fundamental rights of others.'
Clare Hayes, of Deighton Pierce Glynn, acting on behalf of the Claimant, said:
'Systems for protecting people in prison from discrimination and unlawful use of force are woefully inadequate. It remains to be seen whether prisons can show that they understand trends in their use of force sufficiently to be deemed “PAVA ready” by the Justice Secretary. It is hoped that as a result of our client’s challenge, greater scrutiny will be brought to bear on incidents where PAVA is drawn on or discharged against a prisoner. Where the spray is used outside of policy and guidance, officers may face disciplinary proceedings and prisoners may have grounds to take legal action against the prison service.'
We are calling on the Ministry of Justice to publish its equality impact assessment and guidance on the use of PAVA to provide greater transparency.