7th November 2017

Tony Herbert discusses what happened to his son, James, on the last day of his life; James’ family’s thoughts and feelings around the Article 2 Investigation process into his death; and, the publication of ‘Six Missed Chances’ by the Independent Police Complaints Commission, which seeks to promote learning from James’s death. INQUEST have worked with James' family since his death in 2010. 

This blog post is adapted from a speech given by Tony Herbert to the Policing and Mental Health National Conference in September 2017.


         James Herbert (left) and his father Tony (right)

James died aged 25 at Yeovil Police Station at around 8.30PM on June 10th 2010. He was detained, purportedly under Section 136 of the Mental Health Act, in Wells Somerset at 7.00PM. James was restrained and put into a police van. That took half an hour and the journey from Wells to Yeovil took forty minutes.

James had come into contact with the police three or four times earlier that day. He was known to the neighbourhood police in Wells as somebody who suffered from mental ill-health. At 7.00PM James was on the Bath Road, Wells, outside the Britannia Inn. He was wandering and sometimes running in and out of traffic. A control operator asked a PCSO, who had spoken to James less than an hour previously, to go to investigate. He was unable to get James to engage with him and he called for a police officer to assist. A member of the public was directing traffic at this stage. The police officer arrived and less than a minute after arrival, James was on his back on a grass verge with the police officer and one member of the public restraining him. The police officer called for backup and immediately two more members of the public joined in the restraint. Within three minutes of the first police officer’s arrival, handcuffs had been applied. Then, two more police officers arrived and the three police officers and one PCSO aided by three members of the public, managed to turn James on his front, handcuff him behind his back and apply limb restraints around his ankles and thighs. James struggled against being restrained. He was suffering from a psychotic episode when he was restrained. James was not violent before his restraint. He never was. He had suffered many similar episodes previously, some of which I had seen. I can’t bear to think how terrified and bewildered he must have been. He would have had no idea at all why he was being restrained.

James was wearing a warm winter coat on a hot June evening. It was not taken off him until after he arrived in Yeovil an hour later. The seven people carried James and he was put in the cage of a Vito Van. Barbara, James’s mother came on the scene at this stage. She saw James try to get to his knees in the van and fall back into an awkward position. She pleaded that he should be taken to hospital. She was told that James would not receive medical attention until he calmed down. She told the police that James had been taking legal high drugs - NRG1. She asked if she could travel in the van with James. That was refused. The van pulled away. There were two officers in the van, one driving and the other riding in the front passenger seat. James was unmonitored for the entire journey except for one stop about half way. The officers said that James had gone quiet and so they opened the back doors, but not the cage doors. They said James shouted and so they did not check any further.

On arrival at Yeovil police station, we have the benefit of CCTV footage. James is carried out of the van and he is unresponsive. He is carried into a cell face down on a blanket used as a kind of sling by five police officers.  James’s restraints are removed, over an hour and ten minutes since they were applied. His clothes are removed too and the officers carry out a cell extraction. James is left naked, face down on the police cell floor, the mattress in the cell having been removed just before James was put in the cell. When James does not respond after the cell door is slammed shut, it is opened and he is put in the recovery position. Finally, an ambulance is called, but with so little urgency and information given that there is no paramedic, two technicians instead who are not trained to deal with the cardiac arrest that James had suffered. They call for a paramedic immediately who arrives seven minutes later.  On reflection, it probably did not matter because by the time the technicians arrive James has stopped breathing and two police officers were carrying out CPR. James was eventually transferred to Yeovil Hospital where he was declared dead at 9.20PM. A defibrillator in the custody suite was not used before the technicians arrive but it seems that it would not have made any difference, at least that is what the first IPCC investigation reported.

James’s life ended. James had mental health issues. He had been recently taking legal high drugs and may have been under the influence when he was detained. His inquest found that he had been detained under Section 136 of the Mental Health Act. We certainly accept that detaining him under Section 136 was the right thing to do, but we are far from convinced that the police officer had that or anything else in mind. One of the police officers in the van received a mobile call from the control desk when James was in transit. He describes James as a violent prisoner. If James had been detained under Section 136 properly, then “very distressed patient” would have been the appropriate language. One thing we have no doubt about is that the actions of the police officers involved in James’s restraint and transport to Yeovil caused James to die.

For a long time, I have been full of anger. I am less angry now, as I can see something potentially constructive to come out of James’s death with “Six Missed Chances”.  My anger is not so much directed at the police officers whose actions I believe caused James’s death, as I also believe they had no malicious intent. It is directed at the police force’s extremely defensive response and the failure of the investigations into James’s death to give us what we need and deserve - the shining light of truth. An IPCC investigation, an Article 2 Inquest, a second IPCC investigation and a negative charging decision by the CPS that was upheld after we appealed under the Victims’ Right to Review. This lasted seven years and gave us a torch-light here, a beam of light there and a flash of light somewhere else, but never the constant shining light that we should have received.

For instance, I mentioned that James was on the ground less than one minute after the first police officer arrived on the scene, 54 seconds to be precise. We know that is the case, since the second of two IPCC investigations pointed out some hard evidence that proves it. I am not an expert about de-escalation techniques, but the fact that it took only 54 seconds for the police officer to use force, I believe, demonstrates that there was no de-escalation. However, the report from the second IPCC investigation finds that de-escalation took place, ignoring its own hard evidence and somehow confusing the time it took for James to be on the ground with how long it was before handcuffs were on.

I would really like to have heard the police officer explain honestly why he did not deescalate. I think I can understand many reasons why he might not have done - lack of training, lack of understanding, one-off judgement, error or even because he maintains that it was the right thing to do, for example. Had he explained himself, I would have had the opportunity to forgive him, as I continue to believe that he meant James no harm. More importantly, a learning opportunity that could have informed training and good practice early was missed.

The fact there have been over 1,600 deaths in police custody or after police contact since 1990 and not a single successful prosecution shows that the investigation system is flawed and that the criminal justice system is utterly ineffective in this area. I believe this lack of accountability causes a lack of learning. The defensiveness shown by the police forces around deaths in custody blocks out the opportunities to learn. You need to be open to learn.

My observations are those of a bereaved person, but I would like to make one point. Apart from the deceased and the deceased’s loved ones, the police officers involved in an avoidable death in custody, unless they have sociopathic tendencies, are going to be the ones who suffer the most. They need proper support and help from the force, not to gloss over or cover up what has happened but to face it openly and to be able to come to terms with it properly. This sort of tough love from the force would be far healthier than a pat on the back and “You have done nothing wrong, we are with you all the way”, which I fear may be the so-called support sometimes on offer. Opening up to the investigation process; treating every death to begin with, as if it is the responsibility of the force; recognising that prevention of future deaths is the big prize; supporting the involved officers properly; and showing REAL COMPASSION to the loved ones of the deceased by not only recognising their burning need for the truth but by making sure they get it - these are the things police forces can do to make things better.  Achieve that and watch public confidence soar too.

In September 2017, the IPCC published the ‘Six Missed Chances’ report. I am really proud that they picked James’s case to write such a ground-breaking report. It is a document about learning, not accountability, as it does not seek to cast any blame for the six times when a different action may well have saved James’s life. In terms of the recommendations, the IPCC have taken advice from INQUEST, the College of Policing and their own knowledge of current best practice. I think it is a very well-judged report and I hope it will get wide use in police training. James’ tragic death is a powerful true story and learning happens more easily in that context. The prize is no more deaths in custody - which benefits everyone.

We are far from unique in craving that no more families should go through what we have been through. That seems to a big objective of every family I meet through INQUEST. I so look forward to when INQUEST’s wonderful family forums do not introduce us to yet another broken family trying to make sense of their shock and terrible loss. Helping such people if I can is something I will do for the rest of my life. But it would be so good if I didn’t need to.

Whilst I am I think mentally well, I have gained five stone in weight since James died. I have decided it is time to get this weight off for the good of my own health but in a way for James too. James was a lovely young bloke, far more intelligent and compassionate than his old man. Everyone could do something for James too by reading ‘Six Missed Chances’ and making sure lessons are learnt across the police force and mental health services.


All rights reserved by Tony Herbert, courtesy of INQUEST

Contact Lucy McKay on [email protected] or 020 7263 1111 for details of use.

The IPCC report ‘Six Missed Chances’ was published on 21st September 2017. Further information about the report is available here.