24 October 2019

The Independent Office for Police Conduct (IOPC) have today informed the family of Thomas Orchard of their decision to withdraw directions for gross misconduct proceedings against two Detention Officers. The Detention Officers are civilian staff employed by Devon and Cornwall Police, who were involved in the detention and subsequent death of Thomas in October 2012. 

The IOPC can direct police forces to bring charges against their officers and staff where the IOPC have concluded that they have a case to answer for gross misconduct. They previously directed that gross misconduct proceedings be brought against four Devon and Cornwall Police Officers and the two Detention Officers. The latter, as civilians, would have faced police staff disciplinary proceedings governed by their employment contracts, while proceedings against police officers are separately governed by statute.

Today’s withdrawal of the IOPC’s original directions follows the decision of a disciplinary panel in July this year to discontinue the gross misconduct proceedings against the four Devon and Cornwall Police Officers. That panel did not accept the argument of officers that there was inadequate evidence of gross misconduct. However, they accepted arguments around ‘abuse of process’, including long delays which they believed caused irredeemable prejudice, and insufficient confidence in the process for disclosure of evidence.

The IOPC have not said that the two detention officers no longer have a case to answer for gross misconduct, but rather that it is no longer in the public interest to bring the proceedings. Devon and Cornwall Police urged the IOPC to review its direction requiring the Detention Officers to face disciplinary proceedings. Despite the strong opposition of Thomas’ family, the IOPC has now withdrawn its earlier direction.

Alongside a Custody Sergeant, the two Detention Officers were previously prosecuted for the gross negligence manslaughter of Thomas and faced two criminal trials. They were acquitted by a jury in March 2017. No police officer or relevant police staff member has been successfully prosecuted for murder or manslaughter in relation to a death in custody since INQUEST began recording in 1990.

Thomas, 32, was a fit and physically healthy church caretaker. He had a history of mental ill health and a diagnosis of schizophrenia. On 3 October 2012, he was arrested and detained by Devon and Cornwall Police Officers and taken to Heavitree Road Police Station. Upon arrival limb restraints were applied and an Emergency Response Belt (ERB) made from a tough impermeable fabric was put around his face.

The ERB remained around his face as he was carried face down to a cell where he was left lying unresponsive on a cell floor. By the time officers re-entered his cell, Thomas was in cardiac arrest. He was transferred to hospital and pronounced dead on 10 October 2012.In May 2019, the Office of the Chief Constable for Devon and Cornwall Police was sentenced for health and safety breaches in relation to the use of the ERB over the face, after pleading guilty to the charges.

The family of Thomas Orchard said: “As a family we are completely unable to comprehend how people who were charged with manslaughter can now be allowed to face absolutely no scrutiny for their work practices in relation to Thomas’ death.

This decision feels outrageously and ethically wrong to our family; we have been let down by the IOPC.

We call upon the coroner to examine the circumstances surrounding Thomas’ death publicly, openly, honestly and constructively.”

Deborah Coles, Director of INQUEST said: “Thomas’ shocking death, following restraint by police and staff whilst he was suffering a mental health crisis, raised serious concerns about policing practices.

Evidence heard at the trials and health and safety prosecution exposed criminally unsafe restraint practises. Today’s IOPC decision once again calls into question the ability of the IOPC to investigate police criminality and wrongdoing and ensure that police and detention officers are properly held to account for their actions.

For seven years this family have had to battle against delay, denial and obfuscation. This shameful outcome fails both the family and the public interest. It points to the impunity of the police, and a process which frustrates the prevention of abuse of power and ill treatment. Thomas Orchard’s death joins the long list of deaths where the police have not been held accountable to the rule of law.

Nearly two years on since the ground-breaking Angiolini policing review, the Government must spell out to the public how it will address this undeniable failure of accountability mechanisms.”

Helen Stone, solicitor at Hickman and Rose who represents the family said: “Today’s IOPC decision means that, despite having a case to answer for gross misconduct, these detention officers can continue to work in contact with the public, without having to account, in an employment context, for their actions towards Thomas.

This follows on from a similar decision by a police disciplinary panel in July 2019, which ended disciplinary proceedings against police officers who had a case to answer for gross misconduct.

These disciplinary outcomes must be a matter of grave concern to the public, and the IOPC and Devon and Cornwall police need to account for their actions which have led to neither police officers nor detention officers facing disciplinary proceedings that would have enabled them to be held to account for their actions. 

In the seven years since Thomas’ death there has still been no judicial determination as to the cause of his death; the family trust that HM Senior Coroner will now rectify this by speedily moving towards an inquest.”

ENDS

NOTES TO EDITORS

For further information please contact the INQUEST communications team on 020 7263 1111 or email Lucy, email Sarah.

The family is represented by INQUEST Lawyers Group member Helen Stone of Hickman and Rose solicitors. INQUEST Senior Caseworker Anita Sharma is working with the family of Thomas Orchard.

More information is available on the IOPC website.

In the period April 2015 to September 2018 the IOPC found 102 individuals in death in police contact related investigations have had a case to answer for gross misconduct. Gross misconduct charges were upheld in only 4 of these cases, and misconduct charges found in 54. Only two officers were dismissed without notice. In addition, one officer involved in the death of Kingsley Burrell was dismissed in December 2018 on the basis of giving a dishonest account.

Timeline of events in relation to the death of Thomas Orchard:

• October 2012 – Thomas Orchard was arrested and detained by Devon and Cornwall police on the 3 October and pronounced dead on the 10 October.
• March 2013 – The IPCC submitted a file of evidence to the Crown Prosecution Service (CPS) relating the actions of one officer during the arrest and the level of force used.
• August 2013 – IPCC submitted a file of evidence to the Health and Safety Executive to consider corporate charges.
• October 2013 – IPCC submitted a file of evidence to the CPS relating to two custody detention staff, three police officers, one custody sergeant and a nurse.
• December 2014 – The CPS concluded that there was sufficient evidence to charge the custody sergeant and two detention officers with unlawful act manslaughter, gross negligence manslaughter and misconduct in public office.
• January 2016 – The criminal trial of the police sergeant and two detention officers, charged with unlawful act manslaughter and gross negligence manslaughter, began at Bristol Crown Court.
• March 2016 – The jury were discharged in the manslaughter trial of the police sergeant and two detention officers.
• January 2017 – The criminal trial of the police sergeant and two detention officers charged with gross negligence manslaughter began.
• March 2017 – A jury at Bristol Crown Court found a police sergeant and two detention officers not guilty of gross negligence manslaughter not guilty.
• February 2018 – The IOPC directed Devon and Cornwall police to bring disciplinary action for gross misconduct against six of the seven officers involved with the detention and restraint of Thomas Orchard.
• April 2018 – The Crown Prosecution Service (CPS) decided to bring a Health and Safety prosecution against the Office for the Chief Constable of Devon and Cornwall Police.
• October 2018 – Devon and Cornwall Police plead guilty to charges under the Health and Safety Act, in relation to the Force’s failure to ensure Mr Orchard was not exposed to risks to his health and safety over their use of an Emergency Response Belt. s
• April 2019 – Devon and Cornwall Police were found not guilty of causing the death of Thomas as part of the Health and Safety prosecution.
• May 2019 – The Office of the Chief Constable for Devon and Cornwall Police was sentenced for health and safety breaches. The judge ordered a fine of £234, 500. Read the family impact statement here.
• July 2019 - Gross misconduct proceedings against four Devon and Cornwall Police Officers were discontinued following abuse of process arguments by officers involved.

The 2017 Angiolini Review on deaths in police custody noted the perception of bereaved families and campaigners that police sit above the law, and that a different set of rules apply to them. It found that long delays in the investigation and legal processes following deaths in custody to highly damaging to cases and extremely harmful for families, for officers and for public confidence. The review made a series of recommendations on addressing this, many of which are outstanding.