PAVA spray and children in prison: Our two days in court

This week we have been in the High Court to challenge the government’s decision to authorise PAVA spray for use against children in prison in England. 

The Court heard two days of submissions, including our evidence that: 

• Far from making young offender institutions (YOIs) safer for children and staff, the introduction of PAVA spray is likely to increase harm and violence, both in the immediate term and in the future; 
• Black children, Muslim children and children with disabilities are likely to be particularly adversely affected by the decision, as evidenced in the government’s own Equality Impact Assessment and Child Rights Impact Assessment; 
• The government failed to have sufficient regard to the best interests of the welfare of children when making its decision.  

You can read our detailed submissions here. 

There is no doubt that Ministers and civil servants spent a lot of time and energy on making this decision. But as we submitted to the Court, the issue was one of “quality, not quantity”. You can see from the information now made public through this litigation that the government knew how harmful the introduction of PAVA would be. This evidence included: 

• the Youth Custody Service’s (YCS) Lead Psychologist warning that “the use of incapacitant sprays… has the potential to escalate, rather than de-escalate, incidents” and that “not only could the implementation of PAVA… potentially contribute to the accumulation of trauma in this population but could also… potentially undermine the integrity of YCS approach”, which aims “to improve outcomes for children in its care in custody”; 
• NHS England advising that “higher rates of mental health problems [experienced by young people in custody] could put them at increased risk of PTSD” from the use of PAVA and that more research needed to be done on the impact of PAVA on children with autism and other neurodiversity; 
• HM Prison and Probation Service’s (HMPPS) medical advisor and paediatric specialist noting the “paucity of information specifically about its use in children and young people, and medical implications” and making recommendations of further research which could be done; and
• the government’s own Equality Impact Assessment and Child Rights Impact Assessment explaining that a higher proportion of Black and minority ethnic children in custody are restrained as compared to White children and that “children and young people from the Islamic faith are disproportionately restrained” but making no attempt to explain this or to prevent this being repeated when PAVA is introduced (instead only offering to monitor the use of PAVA when it is used).  

Despite this evidence, and more, Ministers pressed ahead. They failed to learn from the inappropriate and disproportionate use of PAVA against Black and Muslim men in adult prisons. They failed to make good their promises to the Court following legal action funded by the Equality and Human Rights Commission in 2019 and 2020 to understand the impact of PAVA use on people with disabilities, or even to know who in their care has a disability and of what type. They failed to examine the misuse of existing pain-inducing techniques against children in custody and to understand why the Independent Restraint Review Panel found that officers had inflicted pain on children outside of the policy – i.e. unlawfully – in a significant proportion of occasions when pain-inflicting techniques were used. 

[T]he government knew how harmful the introduction of PAVA would be… Despite this evidence, and more, Ministers pressed ahead.

It is true that the decision that was ultimately made in April 2025 was more considered than the original proposals made in the summer of 2023. We heard from counsel for the government that we had a direct impact on this process, submitting that “many of the safeguards have been introduced specifically and expressly in response to concerns raised by the Claimant”.  

The Court also heard that we were not alone in opposing this decision. In fact, of all the stakeholders consulted, only one – the Prison Officers’ Association – supported the decision. Statutory bodies such as HM Inspectorate of Prisons, the Youth Justice Board and the Office of the Children’s Commissioner were all joined in strongly opposing the decision by organisations and experts across the sector, including the British Association of Social Workers, the Association of Directors of Children’s Services, the Alliance for Youth Justice and many others.  

Given the significance of this issue and the need for the anxious scrutiny of the Court, our hearing had already been expedited and the judge hopes to deliver his judgment before Christmas. We understand that PAVA spray has already been deployed at Werrington and Feltham A prisons, and so this really is a live matter. We will of course keep you updated.   

Thanks to our legal team for their hard work on the case: Adam Straw KC, Shu Shin Luh and Shanthi Sivakumaran of Doughty Street Chambers, instructed by Michael Oswald, Catriona Macgregor and Anna Thomson of Bhatt Murphy.

It is not easy to challenge the government in Court – litigation can be difficult and unpredictable, as well as potentially costly. It is only with the support of members and donors that we have got this far. If you are able, please consider making a donation today to strengthen our work and ensure we can continue this vital work. 

Gemma Abbott, Legal Director

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