R (on the application of the Howard League for Penal Reform) v Secretary of State for Justice 2026
On 24 April 2025, the Secretary of State authorised the use of pelargonic acid vanillylamide spray (PAVA) in three public Young Offender Institutions (YOIs) in England for a 12-month period. The YOIs in question were HMYOI Feltham A, HMYOI Werrington, and HMYOI Wetherby, which accommodate young people aged 15-18 years. The youth custodial population had declined significantly over the previous decade but over two-thirds of children and young people in custody had committed offences of violence against the person. The level of violence in YOIs had increased significantly and serious assaults in YOIs frequently involved weapons and multiple perpetrators, with real risk of life-changing injury or death.
Youth Justice Workers had limited tools at their disposal compared to staff in adult prisons, carrying only soft restraints, with certain managers authorised to carry handcuffs, but not batons or rigid bar handcuffs. PAVA had been available for use during serious incidents in YOIs since 2006, but only with approval by a "Gold Commander" and deployment by the National Tactical Response Group. The decision-making process spanned approximately two years, involving extensive consultation, expert opinions, equality impact assessments, and the development of comprehensive safeguards.
The case came to court when the lawfulness of the Secretary of State's decision was challenged on grounds of irrationality, breach of public sector equality duty, and failure to make reasonable inquiries.
Howard League for Penal Reform (H) argued:
1. The Secretary of State breached the public sector equality duty under section 149 of the Equality Act 2010 by failing to have due regard to the need to eliminate discrimination and assess the extent of adverse impact on Black, Muslim, and disabled children. H argued that further enquiries should have been carried out to evaluate the impact of PAVA on neurodiverse children, particularly autistic children, children who had experienced trauma, and disabled children.
2. The Secretary of State failed to comply with the Tameside duty by not conducting reasonable inquiries into whether PAVA would reduce or increase violence overall, the physical and mental health damage PAVA would cause, and the extent of discriminatory use. H further submitted that the court should apply "anxious scrutiny" and a stricter standard of review because the Decision involved highly sensitive interests and potential grave adverse effects. Finally H argued that the Secretary of State should have given more weight to the views of stakeholders as "expert bodies" with particular expertise in child welfare.
3. The decision was unreasonable or irrational (ground 3) because there was no evidence that the roll out of PAVA would reduce violence and harm overall, and substantial evidence that it may instead increase harm and violence.
Held
Appeal dismissed.
The court dismissed the claim for judicial review on all three grounds. The court found that there was no process irrationality in the Secretary of State's decision; that she had fully discharged her public sector equality duty under section 149 of the Equality Act 2010; and that she had not breached her Tameside duty to make reasonable enquiries. The court also refused H's application to admit two additional witness statements as evidence, finding them to be inadmissible expert opinion evidence for which permission had not been sought and which were not reasonably necessary for resolving the proceedings.
On Ground 1 (PSED), the court found that multiple equality analyses were undertaken prior to the Decision, addressing potential impacts on children with protected characteristics including Black and minority ethnic children and those with disabilities. The court held that the Secretary of State took more than reasonable steps to inform herself about potential impacts on young people with relevant characteristics, which led to the implementation of comprehensive safeguards. They determined that it was not irrational for the Secretary of State not to delay the Decision while making further enquiries, particularly given the urgency of addressing violent incidents and the uncertainty about what further useful information could be obtained. The court noted that the Secretary of State proceeded on a "worst case" basis, accepting that there was disproportionate use of PAVA on Black boys and that persons with disabilities were likely to be disproportionately affected.
On Ground 2 (Tameside duty), the court found that the Secretary of State took reasonable steps to gather information and that no reasonable Secretary of State could have supposed the enquiries made were insufficient. The court rejected H's application to admit additional expert evidence, finding that the statements contained inadmissible expert opinion without proper declarations and were not reasonably necessary for resolving the proceedings.
On Ground 3 (irrationality), the court rejected H's argument that there was "process irrationality" because the Decision was not taken to reduce overall levels of violence but to prevent serious and immediate harm to staff and young prisoners in specific incidents. The court found that the Secretary of State was expressly informed that PAVA use was unlikely to reduce overall violence but could help prevent life-changing injuries, and this was repeatedly acknowledged throughout the decision-making process. They determined that there was sufficient evidence for the Secretary of State to conclude that PAVA would have an immediate effect of reducing the risk of imminent, serious harm, including the 2023 Bosworth Paper and the Observational Case Review. The court rejected the argument that the Secretary of State simply translated findings from adult prisons to the youth setting, noting that safeguards were specifically designed to address the greater risks to young people.
Reproduced with permission of Reed Elsevier (UK) Limited, trading as LexisNexis.
View the full case document here, with links to related legislation and similar cases.
