The consultation. 1 Northern Ireland Act 1998, s.69(1). 2 Ibid., s.69(3). 3 Ibid., s.69(4). 4 Ibid., s.69(6).

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1 Northern Ireland Prison Service Consultation on Policy and Guidance for the Operational Deployment of PAVA hand-held personal incapacitant spray: Response of the Northern Ireland Human Rights Commission 1. The Northern Ireland Human Rights Commission (the Commission) is a statutory body created by the Northern Ireland Act It has a range of functions including reviewing the adequacy and effectiveness of Northern Ireland law and practice relating to the protection of human rights, 1 advising on legislative and other measures which ought to be taken to protect human rights, 2 advising on whether a Bill is compatible with human rights 3 and promoting understanding and awareness of the importance of human rights in Northern Ireland. 4 In all of that work the Commission bases its positions on the full range of internationally accepted human rights standards, including the European Convention on Human Rights (ECHR), other treaty obligations in the Council of Europe and United Nations systems, and the non-binding soft law standards developed by the human rights bodies. The consultation 2. The Human Rights Commission welcomes the opportunity to respond to this consultation on the proposal of the Northern Ireland Prison Service (NIPS) to pilot the use of PAVA in prisons for a 12-month period or up to 10 operational uses. As noted further below, the main points of reference for our response in terms of human rights standards are Articles 2 and 3 ECHR and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. 1 Northern Ireland Act 1998, s.69(1). 2 Ibid., s.69(3). 3 Ibid., s.69(4). 4 Ibid., s.69(6).

2 3. The PAVA (pelargonyl vanillylamide) spray which is the subject of the present consultation is one of a wide range of incapacitant weapons known generically as pepper sprays and available to many police forces, prison services and other law enforcement agencies around the world. PAVA relies on the irritant effects of the synthetic equivalent of capsaicin, the active ingredient of natural pepper. 5 PAVA spray is dispensed from hand held canisters and sprayed at the individual s face, especially the eyes. The intention is to cause closure and severe pain to the eyes, and thus to gain compliance. 4. The effects of capsaicin-based pepper sprays (not specifically PAVA) were summarised as follows in a study commissioned by the New Zealand Ministry of Health: Inhalation of, and skin and eye contact with, pepper spray causes an almost instantaneous onset of responses. Effects on the eyes include severe burning pain, involuntary closure, lacrimation (tearing), conjunctival inflammation, redness, swelling and blepharospasm (eyelid twitching). Skin contamination causes tingling, burning pain, edema, erythema and occasional blistering. Respiratory symptoms include nasal irritation, bronchoconstriction, a burning sensation in the throat, severe coughing and sneezing, and shortness of breath. More systemic effects include disorientation, panic and loss of body motor control Most symptoms resolve within 30 to 45 minutes Acute effects of capsaicin have been suggested including bronchospasm, respiratory arrest, pulmonary edema, hypertensive crisis and hypothermia as well as serious respiratory and cardiovascular effects and permanent damage to the sensory nervous system. 6 Medical safety and testing 5. The Commission s over-riding concern about the introduction of PAVA is regarding its safety. The Commission s reading of the medical information available give rise to concerns about the safety of PAVA; this includes statements from the Committees on Toxicity, Mutagenicity and Carcinogenicity of 5 COT statement on the use of PAVA (nonivamide) as an incapacitant spray (COT/02/2 April 2002). 6 Broadstock, M. What is the safety of pepper spray use by law enforcement or mental health service staff? New Zealand Health Technology Assessment, NZHTA Tech Brief Series 2002

3 Chemicals in Food, Consumer Products and the Environment (COT/COM/COC, for convenience referred to below as COT). 6. The NIPS consultation states that PAVA has been tested by NIPS Control and Restraint instructors. No details of the methodology or results of these tests are provided and the Commission requests that this information be published. 7. The Northern Ireland Prison Service notes that PAVA has been extensively tested operationally and medically by both government and private agencies, as to its effectiveness and lack of long term harmful effects. It has passed these tests. It is regrettable that the NIPS has not provided a more detailed discussion of the medical evidence as part of this consultation, to enable consultees to make a more informed response. 8. A recent COT statement notes the possibility of adverse effects in individuals suffering from asthma and recommends continued monitoring of experience. 7 The 2002 statement concludes that brochospasm could be induced in asthmatics and that under operational use the suspects would be likely to be experiencing a high level of stress, and this could lead to clinically significant bronchospasm. 8 Although COT has concluded that PAVA would not be expected to be an in-vivo mutagen, the Commission notes COT s finding that PAVA gave a positive result in one of three initial in-vitro mutagenicity tests carried out indicating that it could have mutagenic potential. 9. The Commission also notes that more marked effects can occur in subjects wearing contact lenses. The information available from COT does not discuss any potential aggravation or risk to people with eye conditions such as conjunctivitis or iritis. 9 The Commission did not have access to research to indicate what the possible impact would be to the eyes if PAVA was sprayed at too close a range but COT noted that instructions are not to use at a distance of under three feet because of the risk of pressure injury to the eye. 10 The NIPS guidance, at 4.13, is that PAVA must not be used at a distance of less than three feet, unless the risk is such that it can not be avoided (emphasis as in the original). 7 Smith et al, Comparison of CS and PAVA: Operational and Toxicological Aspects, Publication No 88/04, Home Office Police Scientific Development Branch p10. 8 COT statement (2002), paragraph Smith et al, Comparison of CS and PAVA, p COT statement (2002), para 3.

4 10. The NIPS guidance relating to aftercare states that, where discomfort persists longer than 20 minutes, cool running water should be used to flush the spray from the eyes, but that this sometimes prolongs recovery time. It is worrying that the recommended aftercare technique could in practice prolong the suffering. Furthermore, punishment/ssu cells may not have running water. Effectiveness and context of use 11. Operationally, there are queries about the effectiveness of PAVA and about the potential for its use to exacerbate situations. COT notes that the effectiveness of PAVA depends on contact with the eye and that officers may miss the eyes. The individual s distress or anger may be aggravated by having been sprayed and the situation may worsen. 12. The Commission is concerned at the intention of NIPS to allow for the exceptional use of planned cell removals where significant violence is threatened, and there is a substantial risk to the health and safety of staff and/or others. This seems to allow for the possibility of using PAVA for ensuring prisoner compliance rather than to protect life. 13. The consultation document gives some examples of situations where staff are faced with prisoners armed with knives etc. However, this information is very brief and contained within one paragraph. The Commission considers that a more detailed analysis of incidents should be carried out, preferably including independent research, before concluding that PAVA is an appropriate response to these. In particular, there should be an independent evaluation of whether staff training in conflict management skills is sufficient to allow officers to effectively de-escalate potentially violent situations. 14. The consultation document states that the deployment of C&R [Control and Restraint] may include strikes with an impact weapon, where justified. In a fluid and dynamic situation there is the danger that a strike may be inadvertently delivered to a critical area, causing serious injury. The consultation suggests that PAVA is the most practical way of avoiding such situations. However, Home Office research notes that there have been cases where PAVA has been sprayed but even though the attacker could not see they continued to fight: This not only increases risk of injury to the officer and bystanders but also to the offender as, in such cases, it

5 has been necessary to follow up with baton strikes or other hand tactics to bring the offender under control, introducing the possibility of more serious injuries. It was also noted that the offender became more aggressive in some cases where PAVA failed to incapacitate Because of the uncertainty of PAVA, some officers wanted the possibility of using batons as well as PAVA, thus providing for the possibility of increased use of force. The Commission therefore has concerns about the safety both of prisoners and of officers resulting from the use of PAVA. Engagement of human rights standards 16. The Policy and Guidance document accompanying the NIPS consultation document refers to the Criminal Law Act (NI) 1967 which states: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in the effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. Pepper sprays of various kinds have been used in many incidents resulting in fatalities, with over 100 instances cited in the United States, many involving persons in custody. Although in almost all cases the deaths were clearly attributable to factors other than the spray, the use of PAVA carries with it a potential risk to life, particularly in cases where the use of PAVA has an aggravating impact on an incident. The standard in Article 2 (right to life) in the ECHR and Human Rights Act 1998 sets a higher standard than the 1967 Act, that of no more force than is absolutely necessary. 17. The Commission considers that the use of PAVA also raises issues relating to Article 3 of the ECHR. The Commission must be concerned at the introduction of any method of control whose primary aim is to cause pain and suffering to individuals. The Home Office studies describe how individuals are caused severe pain by PAVA and that this pain is reported to be much greater than that caused by CS: PAVA appears to remain effective (i.e. eyes closed and extremely painful) for a longer time than CS before any recovery takes place. Once recovery starts it is a very quick process, although people have been reported to be crying for hours afterwards. 12 This 11 Smith et al, Comparison of CS and PAVA, p5. 12 Smith et al, Comparison of CS and PAVA, p5.

6 distress may be aggravated by the fact that the person may be left in a cell until the effects have worn off. 18. The Commission is concerned at the intention routinely to use ratchet handcuffs on people who have been sprayed, which may result in excessive use of force. If the sole purpose is to prevent rubbing of the eyes, it may be that handcuffing is not always necessary, or that the handcuffs may be removed as soon as the person has calmed down. 19. We welcome the reference to the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials which stress the requirement to use as far as possible non-violent methods before resorting to the use of force. As NIPS notes the Basic Principles also demand the evaluation of non-lethal incapacitating weapons and their careful control. Equality issues 20. The Commission has several concerns relating to equality issues. It is well documented, and acknowledged by the Prison Service, that a high proportion of people in prison suffer from mental health problems, including personality disorder. We have not been able to access independent evidence on the particular impact of PAVA on this group of people. The New Zealand study stated: The inflammatory properties of pepper spray have been suggested as being particularly effective in managing violent, intoxicated, drugged and mentally ill people who may be less susceptible to pain. However, some data suggest that precisely such individuals may be resistant or immune to [oleoresin capsicum] s effects or that [oleoresin capsicum] may actually exacerbate the difficulty associated with controlling such persons The Commission welcomes the commitment by the NIPS that PAVA will not be used on women, children or young people. However, as NIPS notes this leads to inequality against adult males. There is no further discussion on this issue and the Commission considers that there needs to be a fuller analysis of the equality issues. Conclusion 13 Broadstock (2002), see above. (The active ingredient of the organic agent oleoresin capsicum is capsaicin.)

7 22. The Commission is aware that difficult and dangerous situations can arise in prison settings, and recognises that prison officers have the right to protect themselves, and the duty to protect others, from injury. The Commission is not opposed to the availability of technologies that offer a proportionate means of responding to immediate danger, and where a physical intervention is absolutely necessary a pepper spray could in principle be preferable in circumstances where a baton would otherwise be used. However, a weapon that causes severe pain, which official studies say may last for some hours, is certainly never to be used as a first resort. 23. For the reasons given above the Commission does not support the pilot introduction of PAVA at this stage. It calls on the NIPS to obtain independent research on the type of incidents where it thinks that PAVA may be used and to evaluate the response to these, with particular reference to alternatives including de-escalation techniques. December 2006 Northern Ireland Human Rights Commission Temple Court, 39 North Street Belfast BT1 1NA, Northern Ireland Telephone: (028) Textphone: (028) Fax: (028) information@nihrc.org Website: