Use of 'pepper spray' on child prisoners could be banned just weeks after trial started

THE use of "pepper spray" on child prisoners in what have been described as the "country's most violent jails" could be banned by High Court judges just weeks after the use was approved.

The use of PAVA spray, a synthetic form of pepper spray, has been allowed in HMP Werrington and Wetherby young offender institutions (YOIs) since the summer, where it has yet to be deployed.

It is due to also be imminently approved at Feltham A - the most violent prison in England and Wales.

But, charity the Howard League for Penal Reform has been granted permission for a judicial review of the decision in the High Court.

In April then Justice Secretary Shabana Mahmood authorised a year-long trial at three of the five YOIs housing a total of more than 400 15 to 18-year-olds, across England and Wales.

The trial came amid claims from Mark Fairhurst, Chairman of the Prison Officers' Association (POA), that a prison officer was likely to be killed if the spray, used in adult prisons, could not be deployed across the youth custody estate, due to growing inter gang violence.

There are growing concerns about violence levels at YOIs, which hold more than 400 children aged 15 to 18.

A report by HM inspector of prisons, Charlie Taylor, published in July said Feltham A had "the highest levels of violence of any prison in England and Wales," with incidents of disorder tripling in the last two years.

The rate of assaults in YOIs is 14 times higher than in adult prisons.

An earlier report by Mr Taylor in October found that only one of the five YOIs was deemed to be “safe”.

Mr Fairhurst today blasted the bid by the charity to ban PAVA's use in YOIs.

He said: “The POA welcomes the decision by this government to roll out PAVA in the youth custody estate. Staff who work with the most violent cohort of prisoners in the entire system rightly deserve to be protected. PAVA is a non lethal irritant that will not only act as a deterrent but will quell violence in an appropriate and timely manner, ultimately saving lives.

"We must not forget that Axel Rudakubana who committed the Southport atrocity was a child when he did so. Why cannot brave Prison Officers use PAVA on an extremely violent child posing a threat to their life? Shame on the Howard League who offer no solutions to the violence my members face.”

PAVA spray is classified as a prohibited weapon under the Firearms Act 1968.

The charity's challenge comes less than five months after Ms Mahmood said use of PAVA spray by specially trained prison officers would be allowed "as a last resort" to help de-escalate violent situations at the three YOIs from this summer.

Lawyers acting for the Howard League applied for the High Court to grant permission for a judicial review of the lawfulness of her decision to allow the introduction of PAVA spray in the three YOIs.

The court granted permission last week and ordered for the case to be expedited. The claim will be heard before the end of the year.

The Howard League submits that the decision was unlawful because the Secretary of State for Justice failed to understand and investigate sufficiently the physical and psychological damage that PAVA spray will cause to children in custody;

whether introducing PAVA spray would increase violence and cause more harm overall and the "likely discriminatory use of PAVA spray against Black and minority ethnic children, Muslim children and children with disabilities."

Andrea Coomber KC, Chief Executive of the Howard League for Penal Reform, said: “Knowing that the rollout of PAVA spray has begun only strengthens our determination to challenge it – and we welcome the High Court’s decision to expedite the case.

“Far from keeping children and staff safe, using PAVA spray will normalise violence and undermine trust between staff and the boys in their care. The government’s decision risks making conditions even worse for those living and working in prisons, and we are doing everything we can to prevent this from happening.”

A spokesperson for the charity said: "When PAVA spray was piloted in prisons holding adults in 2018, the evaluation findings indicated that it did nothing to reduce violence and in fact had a detrimental effect on relationships between staff and the people living there. This would be particularly damaging in prisons holding children, where positive relationships are essential to ensure that children are safeguarded and supported.

"The Howard League is concerned by the lack of research into PAVA spray’s use in custody and against children, whether in the community or in custody. What little research exists in relation to adults shows myriad potential physiological health impacts, including on the respiratory tract, eyes, skin and cardiovascular system."