PAVA spray used disproportionately against black and muslim prisoners

The official guidance is that prison officers are permitted to use PAVA spray when there is: “serious violence or an imminent or perceived risk of it”.

The disproportionate use of PAVA incapacitant spray on Black, Black British and Muslim prisoners is now so firmly established that it has become normalised, according to a new analysis published yesterday by the Prison Reform Trust. The briefing reveals that since PAVA spray was introduced, the scale of the disparity in its use against Black/Black British prisoners has increased. PRT argues strongly that the prison service is failing to meet its legal obligations under the Public Sector Equality Duty (PSED).

PAVA is now available to staff in all adult male prisons, after the Ministry of Justice failed to honour a commitment to make the authorisation of PAVA conditional on prisons successfully demonstrating their readiness for the weapon. This would have required individual prisons to demonstrate they understood the trends in their use of force and any areas where it was being used disproportionately, before being permitted to introduce the spray.

Lack of transparency

Following a further judicial review in 2020, after the decision to roll out PAVA without readiness assessment safeguards, the Ministry of Justice committed to publishing further national use of force statistics to support public monitoring and scrutiny of PAVA use. However, no statistics have been published and PRT have had to assemble data via a number of parliamentary questions. Black British men make up approximately 13% of the adult male prison population.

• Between April 2019–March 2020, the first year PAVA was available, 12% of the individuals on whom PAVA was deployed were Black/Black British.
• By November 2021, 39% of those on whom PAVA was deployed were Black/Black British.
• By December 2022, the disproportionate use on Black/Black British prisoners had increased to 43%.
• By September 2023, this disproportionality against Black/Black British prisoners had become normalised—accounting for 41% of all incidents where PAVA was deployed.
• Between November 2022 and September 2023 there were 181 recorded incidents where PAVA was drawn and deployed against Black/Black British men, compared with 192 further incidents for White men.

The data also reveal that between April 2019–December 2022, 30% of those on whom PAVA was used were muslim, despite accounting for around 17% of the male prison population.

The PRT briefing sets out a series of events which shows the circular “logic” of this development. We reproduce this in full below:

• A majority of prison officers in an establishment carry PAVA spray. Cannisters are routine; the use of PAVA is understood to be a part of their work.
• Deployment is infrequent, but the vast majority of incidents are presumed to be legitimate as the circumstances meet the criteria.
• Official guidance on the proper use includes circumstances that validate different emotional responses by officers to different ethnicities.
• Governance focuses on whether the circumstances in each individual case are consistent with the stated justifications for PAVA use, an approach that disguises the aggregate patterns of disproportionality.
• The MoJ and the prison service require hard (statistically significant) proof that the cause of the disproportionality is solely race/religion. Despite the extreme disparities, the possibility of other causal factors allows for denial that race or religion is a sufficient explanation of the disproportionality.
• As the disparities increase, the fact that Black/Muslim men are disproportionately affected becomes obvious. This visibility leads to a self-fulfilling distinction: PAVA use on Black or Muslim men is more likely to be seen as justifiable and normal.

One key point in the official guidance is that prison officers are permitted to use PAVA spray when there is: “serious violence or an imminent or perceived risk of it”.

A call for change

The Prison Reform Trust argues that prison safety is reciprocal: prison staff cannot be safe unless the people in their care are safe, and prisons cannot protect the people in their care unless prison staff are safe. PAVA, a weapon that causes pain, shifts staff-prisoner relations; prison staff safety is to be achieved through increasing the danger to prisoners. PRT argues that the unfair use of PAVA spray creates tensions and conflict which in turn results in more violence and more use of PAVA spray in a vicious spiral that is increasingly seen in the prison inspectorate reports.

The Chief Inspector, in his report on children in custody earlier this week  raised serious concerns about the proposed introduction of PAVA spray in the youth estate.

PRT conclude the briefing with a series of recommendations, chief among which is the call for the regular publication of PAVA spray data, broken down by ethnicity and included in publications on racial disparities in the justice system.

Interested readers can read the full briefing here.