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 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. It finds 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.
The commitment was originally made in response to a judicial review backed by the Equality and Human Rights Commission in 2019. Analysis by the Ministry of Justice in response to the review revealed that there was disproportionate use of force in prisons against younger people, black people and Muslim people, which the Ministry of Justice was unable to explain.
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. Yet, three years on, this remains unfulfilled.
Black/Black British men make up approximately 13 per cent of the adult male prison population. However, data published in response to a series of parliamentary questions establishes that the use of PAVA has steadily become more disproportionate:
- Between April 2019–March 2020, the first year PAVA was available, 12 per cent of the individuals on whom PAVA was deployed were Black/Black British.
- By November 2021, 39 per cent 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 per cent.
- By September 2023, this disproportionality against Black/Black British prisoners had become normalised – accounting for 41 per cent of all incidents where PAVA was deployed.
- The data also reveal that between April 2019–December 2022, 30 per cent of those on whom PAVA was used were Muslim, despite their accounting for around 17 per cent of the male prison population.
HMPPS has continued to expand the number of prisons in which PAVA is available. However, it has been unable to explain why PAVA is being drawn and deployed disproportionately.
Despite the extreme disparities, the possibility of other causal factors has allowed for denial by HMPPS that race or religion is a sufficient explanation of the disproportionality.
The briefing argues that the decision to roll out PAVA across the entire adult male prison estate represents a failure of HMPPS to honour its obligations under the PSED.
The PSED requires HMPPS to: (1) show due regard to the need to eliminate discrimination; (2) show due regard to the need to foster good relations between people who share a protected characteristic and those who do not; and (3) produce evidence to demonstrate compliance.
Crucially, these obligations begin before the implementation of a policy, and cover direct and indirect forms of discrimination – a policy does not need to be intentional to be discriminatory. If the evidence does not establish a valid reason for a disparity, the policy or practice is unlawful indirect discrimination. A failure to address that would amount to a breach of the PSED.
The briefing calls on HMPPS to: (1) Suspend further expansion of PAVA. (2) Publish its data on use of force data and PAVA. (3) Publish the steps it has taken to reduce disparities. (4) Document any changes it has introduced in governance to eliminate indirect discrimination. (5) Commission the Race Action Programme to re-examine policy and make changes that can reduce disparities. (6) Commission further research in live sites specifically to determine the reasons for disparities in the use of PAVA, by protected characteristic.
Commenting, Pia Sinha, Chief Executive of the Prison Reform Trust, said: “The routine and disproportionate use of PAVA spray on Black, Black British and Muslim prisoners is a shocking indictment of our prison system and the government’s commitment to meeting its obligations under equality law. Now, ministers are even considering the possibility of extending the roll-out to children in custody.
“It’s time to call a halt to this reckless expansion. The safety of staff and prisoners should be based on good relationships, with staff having the knowledge and skills to engage effectively with the people in their care. The routine arming of staff with PAVA is an admission of failure by the government, and risks adding to rather than reducing a deteriorating cycle of violence in our prisons.”
* Read: Equality incapacitated: the disproportionate impact of PAVA spray on Black, Muslim and disabled prisoners here.
* Source: Prison Reform Trust