18 April 2019

Before His Honour Judge Lambert
Bristol Crown Court
15 - 18 April 2019

A judge has today determined that he could not be sure that the use of an Emergency Response Belt (ERB) wrapped around Thomas Orchard’s head had a causative role in his death in October 2012. A final hearing to determine the sentence for the Office of the Chief Constable for Devon and Cornwall is scheduled for 3 May 2019, following their guilty plea for health and safety breaches in October 2018

An ERB was placed around Thomas’ head for over five minutes whilst in custody; he was later found to be suffering a cardiac arrest. The judge had to determine if he was sure there was a causative effect on Thomas’ breathing and, if so, if he was sure this use of the ERB was caused by the breaches to which the Chief Constable of Devon and Cornwall Police had already pleaded guilty. The judge today found that he could not be sure there was a causative effect on Thomas’ breathing, and so did not need to consider the latter issue.

The Office of the Chief Constable for Devon and Cornwall police have pleaded guilty to breaching Section 3 and Section 33 of the Health and Safety at Work Act 1974, but did not accept that these health and safety failures caused Thomas’ death. This was the first ever guilty plea on Health and Safety charges from a police force in relation to a death in custody.

The court heard how the ERB was first approved for use by the force in 2002 as a limb restraint, but was being used in practice as a spit or bite guard despite no risk assessment being carried out prior to this alternative use.

Thomas was a fit and physically healthy 32 year old church caretaker, living independently in supported accommodation at the time of his death. He had a history of mental illness and a diagnosis of schizophrenia. On 3 October 2012 he was arrested and detained by Devon and Cornwall officers in Exeter City Centre following reports of his bizarre and disorientated behaviour.

He was transported by police van to Heavitree Road Police Station. Upon arrival, in addition to the triple limb restraints applied, an Emergency Response Belt, made from a tough impermeable webbing fabric, was put around his face. The ERB remained held 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.

Alison Orchard, mother of Thomas said: “We have spent the past six and a half years, since tragically Thomas died in police custody, watching the same CCTV footage of him dying; listening to witness statements; reading reports; perusing documents which relate to the safety and wellbeing of those in police custody and witnessing the defensiveness of those representing Devon and Cornwall Police. We have consistently told those in authority how we perceive what happened to our much loved son and brother on 3 October 2012: we have always thought Thomas’ death was a needless one, caused – directly – by sloppy and dangerous practices, most especially the application of the restraint belt around his face and head, as well as the lack of care and negligence from the very organisation which should have been protecting him.

As a family we are nothing but dismayed by the judge’s decision; it is hard to believe after all that we have witnessed. More than anything, we have always been hopeful that Thomas’ death would not have been in vain and that lessons could be learned from it. We therefore hope, despite his decision about the causation of Thomas’ death, that the judge will consider that both the culpability of Devon and Cornwall Police in their breach of Health and Safety regulations and the potential for harm by that breach is of the highest order when he makes decisions on sentencing.

Thomas died when he was 32 years old. We could not then have ever imagined how long we would have had to sustain our fight for justice. Our thanks go to those whose expertise has guided us, especially to our solicitors at Hickman and Rose, to all those at the charity, INQUEST and for the support of other families who have also lost loved ones in police custody. Thanks go, too, to our family, friends and colleagues who care with us and for us.”

Victoria McNally, Senior Caseworker at INQUEST said: “For six and a half years Thomas’ family have been fighting for some level of accountability, a delay which can only point to the failing systems of justice following deaths in police custody. Today’s decision is a bitter blow with no-one held criminally responsible for causing his brutal and preventable death.

Devon and Cornwall have pleaded guilty to operating criminally unsafe policing practises at the time of Thomas’ death.  With corporate responsibilities following police deaths so often delegated to the background, unscrutinised and unchallenged, this remains a historic and vitally important prosecution.

The restraint belt used across Thomas’ face was neither approved by the Home Office nor risk assessed by Devon and Cornwall before its adoption and use against Thomas and other detainees. Trial evidence has exposed little knowledge or control by the Home Office around the import and adoption of restraint equipment by national forces.  With statistics showing record high levels of use of police force and highest number of police restraint related deaths since 2004, this dangerous gap in oversight and control must be addressed.”

Helen Stone of Hickman and Rose, who is solicitor for the family said: “This ruling means the judge could not be sure that the emergency response belt restricted Thomas’ breathing. This is a disappointing verdict. However, we should not lose sight of the fact that the Devon and Cornwall force has admitted breaching Health and Safety law - a crime for which it will now be punished.

This is the first time any force has pleaded guilty to Health and Safety breaches in relation to a death in custody and is, in itself, a positive step forward for justice and the public’s ability to hold the police to account for their actions.

It should lead to all the country’s forces reviewing how equipment is approved, reviewed, and trained for use to ensure not only that they comply with the law, but that no other members of the public are put at risk as Thomas was.”

ENDS

NOTES

For further information please contact Lucy McKay and Sarah Uncles on 020 7263 1111 or email Lucy; email Sarah

INQUEST has been working with the family of Thomas Orchard since his death. The family is represented by INQUEST Lawyers Group member Helen Stone of Hickman and Rose solicitors.

Since 1990, there has never been a successful murder, manslaughter or corporate manslaughter prosecution against a police officer or force following a death in custody or contact with police. This is despite numerous unlawful killing and highly critical conclusions at inquests.

Previous prosecutions under the Health and Safety Act following deaths in contact with police:

• Jean Charles de Menezes was shot by Metropolitan police in Stockwell station and died on 22 July 2005. The Metropolitan Police Commissioner was prosecuted under HSE for 'failing to provide for the health, safety and welfare of Jean Charles de Menezes’. The Metropolitan Police Service, on behalf of the office of the Commissioner, pleaded not guilty to the charges. On 1 November 2007, the Metropolitan Police Commissioner in his official capacity was found guilty and was fined £175,000, together with £385,000 of legal costs.
  
  
• Anthony Grainger was shot by Greater Manchester Police and died on 3 March 2012. It was alleged that Greater Manchester Police failed to prepare properly for the operation, which left people at risk. As such, the Chief Constable Peter Fahy was charged under Health and Safety at Work Act, as the corporation sole for Greater Manchester Police.
  
  However, in January 2015 an ‘abuse of process’ argument from the police was accepted, with the police arguing that the evidence which needed to be disclosed in open court in order for the defendant to have a fair trial would not be in the public interest and it would prejudice future Greater Manchester Police operations. The Crown Prosecution service dropped the charges. The conclusion of a public inquiry into Anthony Grainger’s death which followed is awaited.

The Independent Office for Police Conduct (IOPC) most recent annual statistics on deaths during or following police contact in England and Wales, published on 25 July 2018 showed:

• There were 23 deaths in or following police custody, the highest figure recorded in the past 14 years, and an increase of nine since last year.

• Four people who died in or following police custody were detained under the Mental Health Act.
• Seventeen of the people who died in or following police custody or other contact were restrained or had force used against them by the police or others before their deaths.

• 12 of the 23 people who died in or following police custody had mental health concerns.

See the INQUEST media release for more information.

In December 2018, the Home Office published the first national statistics on police use of force (April 2017-March 2018). The statistics highlighted that one of the most common reasons reported by police for using force (after drugs and size/gender/build) was mental health, reported 68,990 times in the period, far more than prior knowledge (59,177) or possession of a weapon (40,214). See INQUEST media release for more information.