“These recent trends mean that the youth custodial population in England is now smaller and more homogenous (by reference to age range and type of offending), consisting mainly of older children and young people who are disproportionately likely to have committed violent offences. This has produced a cohort with particularly complex needs. Many have experienced trauma, abuse, or exploitation, and have led chaotic lives, marked by adverse childhood experiences. Managing this population presents new and demanding challenges for the system, especially in terms of risk management, safeguarding, and keeping staff and children safe.”
“Home Office Police Use of Force statistics show that, during incidents involving children aged 11-17 in the year ending31 March 2022 , police officers drew irritant spray 619 times and used irritant spray 572 times. The corresponding totals for adults aged 18-34 were 5,001 and 7,382. In the subsequent year, ending31 March 2023 , the corresponding totals for children aged 11-17 were 760 and 561, and, for adults aged 18-34, 4,773 and 6,860 respectively. For the year ending March 2024, the corresponding totals for children aged 11-17 were 823 and 606, and, for adults aged 18-34, 5,248 and 7,060. This reflects “regular” use of PAVA with children over a protracted time period. From my review of evidence, I am not aware of any long-term medical impact on children and young people associated with the use of PAVA by police in England and Wales, although I recognise that the available evidence is limited.”
“The biggest and most sustained challenge the YCS is likely to face is the disproportionate use of PAVA. The disproportionate use of PAVA on young black men has remained ever present since the introduction of PAVA in four pilot sites in 2017, and is supported by international research on incapacitant sprays, and more generally inequalities in the criminal justice system. PAVA can be an effective tool when outnumbered, to cease serious incidents and life-changing injury, and to maintain a safe distance when needed, but it is unlikely to reduce overall violence, noticeably improve safety or enhance day-to-day interactions.”
“To enhance the likelihood of a successful roll-out if the decision is made to introduce PAVA to the YCS, the risks should be acknowledged and mitigated where possible, sufficient resource should be provided to ensure meaningful oversight and scrutiny, proactive steps should be taken to carefully consider what response can be provided to disproportionate uses, open and transparent dialogue with staff, prisoners and interested third parties should occur from the early stages of planning, and importantly, adequate time must be given to prepare sites for the roll-out ensuring appropriate processes are in place including a renewed emphasis on de-escalation, up-to-date training, robust yet supportive governance, and other tools and techniques to compliment the roll out.”
“The data shows that PAVA use is associated with higher reported injuries than other force. However, this is likely explained by several factors: o PAVA may be being used when responding to more serious incidents where injuries have already occurred. o Injuries may be from other sources than PAVA, for example from [control and restraint] following a PAVA use. o The injuries reported may be the short-term impact of the spray reported to healthcare following an incident.”
“This [a partial roll out] would allow for further evaluation and evidence to inform any decision to progress to full rollout or withdraw PAVA, balancing the risk of deployment with the risk of serious injury or threat to life from incidents of serious violence”
“There is limited evidence about the medical effects of using PAVA on CYP with comparable physiological impact as adults. Evidence from the adult estate suggests that PAVA is disproportionately used on young black men and does not in itself reduce overall levels of violence. Although, there is an indication that the roll out of PAVA has reduced the severity of violence.”
“[r]obust controls around the use of PAVA in the youth estate would be required to ensure proportionate use. Inappropriate use in the adult estate was minimal but had happened” and “[t]he partial rollout would help mitigate the risk of inappropriate use. Only 24 staff members would have access to PAVA, allowing closer monitoring of use.”
“Should it be decided that the partial deployment of PAVA go ahead, it would be important to demonstrate that this was a proportionate response and to include measures to limit the differential impact based on race. Evaluation of any rollout would be key.”
“16. Improving safety in the CYPSE is a complex issue with no single solution. It is important to note that introduction of PAVA is not expected to reduce overall levels of violence but has the potential to reduce its severity, providing staff with a tool to protect themselves or children and young people in their care from the risk of life-changing or life-ending injury.”
“Risk 20. We cannot eradicate the possibility of the inappropriate use of PAVA completely once implemented and indeed the evaluation of implementation in the adult male estate (Annex A), whilst still subject to peer review, suggests that it is likely PAVA would be used inappropriately at times, particularly in emotive situations. The higher use on younger people in the adult estate indicates a potential for high use in YOIs. The presence and use of PAVA could potentially impact negatively on the culture of our YOIs and the staff child relationship, inhibiting their ability to successfully rehabilitate. 21. Evidence and understanding of the impact of PAVA is limited, notably upon children, with evidence from police use (including on children) and policing in the USA dominant. Our evaluation in the adult male estate indicates that officers reported increased confidence. Some adult prisoners recognised PAVA having utility, but highlighted it is painful and may be used inappropriately. While PAVA tends to be used infrequently, it may be used in questionable circumstances, including in confined spaces and in instances of self-harm (though in exceptional circumstances the policy supports this). The evaluation also concluded that it is disproportionately used towards young black men (who are overrepresented in the YOIs at present).”
“30. Inappropriate use or excessive use of PAVA could be mitigated by limiting those staff with access to PAVA and increasing their level of training/briefing (e.g. on disproportionality, child first considerations, health considerations etc.) All uses of force in the YOIs have a high degree of governance, however, further control would come through PAVA use always being reviewed by the Governor and Deputy Director Operations as part of regular performance oversight and reported nationally. Any use would also be referred to the Independent Restraint Review Panel for their further scrutiny. 31. To mitigate concerns regarding impact on a child centred culture a more limited and controlled rollout rather than allocation to all staff who have frontline operational engagement with children and young people would reduce the impact and potentially concerns stakeholders identify. The exceptional use of PAVA for major incidents and acts of violence rather than as a core personal protection tool (as in the adult estate) would speak to this same point in informing the culture of the YOIs.”
“Recommendation 35. Despite the lack of comprehensive evidence and research to show the impact of PAVA on children, it is clear that staff are dealing with significantly high levels of violence and do not have the tools to intervene in all instances safely and swiftly. Implementation would provide staff with the option to intervene from a safe distance and potentially prevent life changing or life ending injuries to children or staff. 36. The decision is finely balanced notably given the risk and controversial nature of the use of PAVA with children. There has not been full unanimity in making a recommendation but on balance it is recommended to agree the roll out of PAVA in under 18-year YOIs.”
“[r]egarding any decision to roll out PAVA to the children and young people secure estate, I can assure you that we will consider all available information. This will include full consideration of the evaluation of use in the adult estate. Whilst this has not yet been published, my officials have had sight of this and have considered the findings of the evaluation in their advice to the Lord Chancellor and myself. Improving safety in Young Offender Institutions is a complex issue with no single solution. Despite existing work around violence reduction and improving behaviour management, no reduction in serious incidents such as multi-perpetrator assaults has been seen, and further action is needed to mitigate the risk of life changing or life ending injury. The potential introduction of PAVA is one action that we are considering due to the unique opportunity it presents for staff to intervene in serious multi-perpetrator incidents whilst maintaining a safe distance. However as you will agree there are many other factors that must be considered. Children are a vulnerable group with distinct protected health and safeguarding needs. My officials have been clear that should the decision be to roll out the use of PAVA this would be aligned to a live evaluation and enhanced scrutiny arrangements.”
“We committed to review PAVA use in the Children and Young People Secure Estate (CYPSE) following completion of roll out in the adult male estate. We are now at that point.”
“The roll out (which could be achieved by May 2024) would be subject to stringent criteria against which it could be evaluated and withdrawn if necessary. A robust governance process, live evaluation, and scheduled reviews (around the impact medically and on disproportionality) would facilitate an increased evidence base to further inform any future roll out after a six-month period. Should this oversight raise significant concerns about its use, we would immediately recall PAVA whilst considering further options. In any event, we would undertake a thorough review of its use and provide you with advice (including about how to communicate its findings publicly).”
“committed to raising the following points with the Lord Chancellor before a decision is made on PAVA rollout in the youth estate: 1. The overarching, and consistent, view of stakeholders is that as a matter of principle it is the wrong decision to introduce PAVA more widely into the youth estate. 2. The concern that in addressing the immediate violence issues is that you create a long-term escalation and rising tenor of violent behaviour. 3. The data and evidence base are lacking, especially health data. 4. Notwithstanding concerns about disproportionately which talks to broader point about racial disparity as ethnic minorities are disproportionately represented. 5. The remand cohort is high, and many children do not end up serving a custodial sentence. 6. Concern and risk that PAVA use can become normalised, despite checks and balances.”
“Health Impact LC Lord Chancellor. asked about the health impact that PAVA has on children. LC notes from the submission that there is a recovery time of c.45 minutes. More specifically, LC queried the consequences of being sprayed and how serious it can be? EC Mr.Cornmell. explained that there will be irritation to the eyes (may be unable to open them) and impacts on the sinuses, however, all medical views are associated with adults not children. AR agreed that PAVA can cause acute pain and clarified that other use of force techniques can cause pain. In the CYPSE pain inducing techniques are used in exceptional circumstances only but remain available. Officials confirmed there can be secondary exposure to staff and others from PAVA use Risk to Staff/Prisoners LC noted that many of children in the estate are convicted of violent offences but can be victims in incidents of violence in custody also. The LC is mindful of the staff response in these situations and to support them in their roles. … LC noted that under Option 2, PAVA would be rolled out to c.125 staff who will be specially trained. EC noted that these individuals (CMs and Use of Force/MMPR Co-ordinators) hold higher levels of responsibility in establishments and will be trained to a higher level. … LC noted PAVA use should not be the first response to violence but used to intervene to prevent potentially life changing or life ending injuries to staff or children. LC noted the use of PAVA should not create an environment of excessive violence. PC noted the risk that children in custody pose to one another and not just staff, an important factor to take into the decision-making process.”
“[he] wanted to know if the data on violence supported the need for a decision immediately”
“ LC asked about what training staff who would be equipped with PAVA in Option 2 will receive? EC noted that there is a standard training for any use of PAVA but there is a need for there to be a child focus, addressing issues such as disproportionality and need to make sure that this is signed off for each individual (included in Action 1). LC asked about whether this would be a trial and AR noted that this would be a rollout with ongoing evaluation.”
“YCS to produce one-page brief on international comparisons to be drawn up (specifically looking at Norway, Germany and Denmark). To include details on sites PAVA is used, authorisation of use, in what scenario it will be deployed etc. … YCS to produce data on the number of prisoner-on-prisoner and prisoner-on-staff assaults in the YCS and case study examples of times in which PAVA would have been deployed (already produced). Please include time series data going back as long as possible, minimum of 5 years. … YCS to provide note on calls from prison officers/POA on PAVA use and the standing mandate from the membership for this rollout.”
“As we continue to reform our estate in line with evidence of what works, as set out at paras 9-10, we would anticipate the need for PAVA to reduce. However, in the short term, PAVA is deemed appropriate to reduce the risk of life changing or life ending injury.”
“Appropriate safeguards are put in place including monthly scrutiny of all use which will be submitted for ministerial review (by Minister Dakin) which includes clear monitoring of any disproportionality of use. - A review of the roll-out in one year (to be conducted by the Lord Chancellor). - The roll-out to exclude use on girls in the YCS (unless this should occur incidentally).”
“LC opened the meeting by asking to understand two key points: what are our safeguards (in relation to the rollout of PAVA in the YCS) - LC highlighted that she does have concerns about disproportionate use on young black boys and other ethnic minorities. - LC suggested a scrutiny mechanism, which would be submitted to Minister Dakin to allow this to be monitored on a monthly basis and drive actions to address any concerns - LC noted that Lord Timpson had also provided his steers on this issue previously, which included a set of safeguarding measures (monthly reporting, additional training for staff). Lord Timpson asked to sunset the measure, to which she did not agree, though the LC did agree to a 1-year review.”
“I think it is unlikely that there will be additional data but will explore”
“That the use of PAVA is subject to ongoing close scrutiny of all uses, and will be authorised for a 12 month period, subject to the following: o a full review being carried out 12 months after the policy going live, which re-examines the evidence of necessity of PAVA use, including quantitative data on both the appropriateness of use and its efficacy; o a live evaluation will operate throughout with specific evaluation of the impacts on children and young people subjected to PAVA, including: o any health impacts. Views and input must be sought from experts from the Department for Health and Social Care and NHS England. any impacts on the emotional and behavioural wellbeing of children on whom PAVA is used, including how it affects them as they develop into adulthood. the impact PAVA introduction has had on children and young people in these settings who are of black or mixed heritage, and on those who are neurodivergent (or both). o Prior to the full 12 month review, the live evaluation will collect the best available evidence on each of these themes. It is recognised that, given the intended high threshold for use, the number of PAVA incidents in YOIs should be extremely limited; o That MOJ/YCS will continue constructive and open engagement with DfE (on behalf of the Education Secretary), including being consulted during any reviews, and that regular data on the use of PAVA in YOIs is shared with DfE officials. Officials will formally meet at least 6 months after go-live to review the evidence position. o Any further use of PAVA beyond the formal review point is ,informed by the best available evidence from the live evaluation… That the Lord Chancellor’s communications on this proposal include the detailed safeguards which are being put in place around its use, to ensure transparency and as far as possible reassure those who will have concerns about its use.”
“PAVA must only be used in exceptional circumstances and used as a last resort where all other options have been exhausted. It must only be used where it is necessary, reasonable, proportionate if it is proportionate to the circumstances. Deployment of PAVA will only be considered reasonable and proportionate where serious violence likely to cause serious harm is underway, or imminently likely to occur, and it cannot be effectively and safely managed by other methods. PAVA must only ever be drawn or deployed in proportionate response to the seriousness of the circumstances and only ever as the last resort”
“55. In most contexts, rationality is the standard by which the common law measures the conduct of a public decision-maker where there has been no infringement of a legal right, no misdirection of law and no procedural unfairness. It encompasses both the process of reasoning by which a decision is reached (sometimes referred to as “process rationality”) and the outcome (“outcome rationality”): see e.g. R (Law Society) v Lord Chancellor[2018] EWHC 2094 (Admin) ,[2019] 1 WLR 1649 , [98] (Leggatt LJ and Carr J). 56. Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones, but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that “does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic”: R v Parliamentary Commissioner for Administration ex p. Balchin[1998] 1 PLR 1 , [13]. In similar vein, Saini J said that the court should ask, “does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?”: R (Wells) v Parole Board[2019] EWHC 2710 (Admin) , at [33]. 57. Outcome rationality, on the other hand, is concerned with whether – even where the process of reasoning leading to the challenged decision is not materially flawed – the outcome is “so unreasonable that no reasonable authority could ever have come to it” (Associated Wednesbury Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 , 233-4) or, in simpler and less question-begging terms, outside the “range of reasonable decisions open to a decision-maker” (Boddington v British Transport Police[1999] 2 AC 143 , 175).”
“Two circumstances that have been identified as imposing special obligations on the state are that the subject is dependent on the state because he has been deprived of his liberty; and that he is young or vulnerable.”
“62. In R (King) v Secretary of State for Justice[2015] UKSC 54 ,[2016] AC 384 , Lord Reed explained at [126], by reference to Pham, that “the test of unreasonableness has to be applied with sensitivity to the context, including the nature of any interests engaged and the gravity of any adverse effects on those interests”. 63. In R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs[2020] EWCA Civ 1010 ,[2021] 1 WLR 472 , the Court of Appeal (Sir Terence Etherton MR, Green and Dingemans LJJ) undertook a review of the case law concerning “anxious scrutiny” in the context of rationality review, concluding at [154] that the intensity of review depends on both the legal context (the nature of the right asserted) and the factual context (the subject matter impugned). However, the court was careful to add that a recognition that a case concerns an important right “does not answer the question about the extent to which a court, in the absence of any applicable statutory duties or statutory limitations on the decisionmaker, will recognise that the evaluative judgement involved is a matter for the decision-maker”
“Deployment of PAVA will only be considered reasonable and proportionate where serious violence likely to cause serious harm is underway, or imminently likely to occur, and it cannot be effectively and safely managed by other methods.”
“This review found PAVA use to be a necessary, reasonable and proportionate intervention in 106 of the 120 events reviewed”
“149 Public sector equality duty (1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; … (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. (7) The relevant protected characteristics are— age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation. …” age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation. …”
“The 2010 Act imposes a heavy burden upon public authorities in discharging the PESD and in ensuring that there is evidence available, if necessary, to demonstrate that discharge … It is for this reason that advance consideration has to be given to these issues and they have to be an integral part to the mechanisms of government.”
“A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision.”
“the concept of due regard requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker.”
“We acknowledge that what is required by the PSED is dependent on the context and does not require the impossible. It requires the taking of reasonable steps to make enquiries about what may not yet be known to a public authority about the potential impact of a proposed decision or policy on people with the relevant characteristics.”
“The starting point must be that it will only be unlawful for a public body not to make a particular inquiry if it was irrational for it not to do so; and further, that it is for the public body, not the court to decide on the manner and intensity of any inquiry: see R (Khatun) v Newham LBC[2005] QB 37 at paras 33 to 35 per Laws LJ. See further, R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] HRLR 13 at para 89.”
“… (1) The PSED must be fulfilled before and at the time when a particular policy is being considered. (2) The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes. (3) The duty is non-delegable. (4) The duty is a continuing one. (5) If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. (6) Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.”
“it is quite hopeless to say that the duty has not been complied with because it is possible to point to one or other piece of evidence which might be considered relevant which was not specifically identified in the EIA”
“Councils cannot be expected … to apply, indeed they are to be discouraged from applying the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court.”
“The Court should not go further than to identify whether the essential questions have been conscientiously considered and that any conclusions reached are not irrational.”
“… in R (Plantagenet Alliance Ltd) v Secretary of State for Justice[2014] EWHC 1662 (Admin) at paras. 99-100 … having referred to the speech of Lord Diplock in Tameside, Haddon-Cave J summarised the relevant principles which are to be derived from authorities since Tameside itself as follows. First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken: see R (Khatun) v Newham LBC[2004] EWCA Civ 55 ,[2005] QB 37 , at para. 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.”