About a month ago the latest prisons minister Rory Stewart announced a countrywide rollout of PAVA (synthetic pepper) Spray for all prison officers in male prisons in England and Wales following a ‘successful’ pilot study of its use. At the time of his appointment Mr Stewart stated that he would resign within a year if the levels of illicit drugs and violence had not reduced. And so this announcement appeared to show he was taking decisive action to keep his promise.

Violence within the prison estate of England and Wales has sky rocketed in recent years. For example, between March 2017 and March 2018 assaults on staff increased 26% whilst the prison population remained static or only slightly increased. There is a negative correlation between the levels of violence and a significant reduction in staff numbers since 2010. At least seven thousand operational staff have been lost in that time with a modest increase in recent months.

This is obviously less than ideal for a number of reasons that go beyond just the physical damage caused by such violence. Unstable and unsafe prisons are not places where people can be rehabilitated and helped to lead positive, crime free lives upon release.

There have many pronouncements by the Ministry of Justice (MOJ) as to what they intend to do about this problem in recent years. PAVA is the most recent. News of this roll out did not include the pilot study itself or outline what exactly was meant by ‘success’.

The pilot study was initially somewhat elusive and none of its details were contained within any of the reporting, apart from this apparent ‘success’. A number of people including Rob Allen, an independent researcher in this area, made FOI requests to the MOJ who obliged and provided the report which can be found here

The Pilot Study

So now we are able to see what the aims of the study were and what is being defined as ‘success’.

The aims of the study were to answer the following:

1. How does presence/use of PAVA impact on prison violence and use of force?
2. How does presence/use of PAVA effect perceptions of safety?
3. How does presence/use of PAVA impact on relationships between staff and prisoners?
4. How do staff and prisoners perceive the presence/use of PAVA?
5. What are the risks or issues presented by the presence and use of PAVA in prison?

In order to achieve these aims pilots were undertaken in 4 prisons where officers received half a day of training on the use of PAVA. Officers were advised that it should only be used in exceptional circumstances where control and restraint were unlikely to be effective. Four ‘control’ prisons without PAVA were also part of study. The eight prisons involved totalled 7651 prisoners and 2972 officers out of a total England and Wales population of 83,163.

The study ran from December 2017 to June 2018. Results were gathered both quantitatively and qualitatively via recording the number of uses of PAVA and by interviews with those involved in some of the instances of use.

PAVA was used (either drawn and/or deployed) 50 times in incidents involving 56 prisoners across the four study sites. It was actually deployed 30 of those 50 times. However the levels of violence in both the pilot and control sites remained at similar levels and indeed increased, continuing current trends. This raises serious questions about how this study was considered to be successful.

The main way it appears to have been deemed successful is in relation to the second aim, namely perceived safety. The study notes that “staff felt better able to deal with it and better equipped to arrest escalation and prevent harm with PAVA”. Of course perception of safety and actual safety are two different things as is made very clear by the fact that levels of violence were unchanged by the introduction of the spray.

More than just a last resort?

A large percentage of the incidents where PAVA was deployed and/or drawn, 16%, were not instances of violence (either between prisoners or towards staff) but instances of ‘passive non-compliance’ or self-harm. This raises the concern that use of PAVA during the study went far beyond it being a weapon of last resort. A Panel that reviewed each incident concluded that between 4 and 11 of the incidents went beyond expectations of professional conduct. Some of the case studies seem to be particularly concerning. For example case study 33 is recorded as follows:

‘PAVA is deployed 3 times in 2 incidents running concurrently involving 1 prisoner and 2

officers. Prisoner suffers from mental health issues and is awaiting formal assessment. Two

CMs respond to alarm (officer A and officer B) and find Prisoner is resisting staff attempts to

close his cell door. Prisoner A is warned and sprayed at the cell entrance and again on his

bed. Upon healthcare assessment 5-10 minutes later, PAVA is sprayed again as prisoner A

is refusing to withdraw his hands from his observation flap.’

There is no indication that this prisoner was being aggressive or causing harm yet he was sprayed with PAVA twice in succession. This goes completely against the guidance that indicates that PAVA should not be used simply to gain compliance.

There were also worrying discrepancies in how the physical effects of PAVA were described depending on whether it was prisoners or staff who were feeling the effects. In 13 of the 33 instances where the spray was actually used the staff involved were affected by the spray. It was described by staff and prisoners as “nasty”, “unbearable”, “like your skin peeling off” and “acid attacked”. However overall the staff involved described the use of PAVA as a ‘minor’ use of force towards prisoners but ‘awful’ when staff were hit.

The limitations

The study did include some limitations which were noted by the authors. For example the definition of a deployment did not include instances where officers were covertly drawing a cannister behind their back with the intention of using it if needed. It is not known how often this happened and so the 50 instances recorded in the study could actually be a significant under-report. To be fair the study does make this and other limitations clear and highlights that the results should be seen as indicative rather than definitive as a result. In my view this makes the fact the MOJ have used it as a basis for a wholescale roll out pretty odd. This is especially true as there is a general lack of previous studies about custodial PAVA use to also relay on. This is something the study also concedes.

There is no doubt that prison officers do a very difficult job in extremely challenging circumstances and the need to protect them in volatile situations is vital. However, introducing more weapons into this already toxic environment on the basis of this study is at best questionable. In conclusion, when it comes to reducing violence in prison, the MOJ have a funny definition of ‘success’ and Mr Stewart is still someway from keeping his promise (and his job).

Emma McClure

Emma McClure is a solicitor specialising in prison and public law whose work sees her regularly representing prisoners during parole hearings and bringing judicial reviews against public bodies. She has given talks around the country on the way in which over-confidence in the veracity of forensic science can lead to miscarriages of justice and has gone undercover to investigate psychics, faith healers and Mind Body Spirit fairs.