3 May 2019

Before His Honour Judge Lambert
Bristol Crown Court
3 May 2019

The Office of the Chief Constable for Devon and Cornwall Police has today (3 May 2019) been sentenced for health and safety breaches which came to light following the death of Thomas Orchard in October 2012. The judge at Bristol Crown Court, His Honour Judge Lambert, has ordered the Office of the Chief Constable to pay a fine of £234,500, as well as costs of £20,515

This is only the second Health and Safety prosecution relating to a death following contact with police. The previous successful prosecution was of the Metropolitan Police Commissioner in 2007, relating to the fatal shooting of Jean Charles de Menezes in 2005. No police force or officer has ever been found guilty of manslaughter or corporate manslaughter arising from  a death in police contact, despite critical inquest conclusions.

At a hearing on 18 April 2019, the judge found 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. This followed the guilty plea by the Office of the Chief Constable for Devon and Cornwall for health and safety breaches in October 2018.

The Office of the Chief Constable for Devon and Cornwall Police was charged with failing to discharge a duty under section 3 of the Health and Safety at Work Etc Act 1974. In particular, the prosecution stated that the breaches included:

• The adoption of the ERB as a device to be used to meet a bite or spit threat from a detainee;
• the deployment of the ERB as a bite or spit guard within the custodial setting;
• the training of officers in respect of the proper deployment of the ERB as a bite or spit guard; and
• the assessment of the risks associated with the use of the ERB as a bite or spit guard.

At today’s sentencing hearing the judge made strong sentencing remarks, including a comment that, “There was an alarming inadvertence to risk” by the force. He said, “Those involved in day-to-day policing tended to focus more on the risk to themselves or their fellow officers.”

His remarks noted, “There was no proper written guidance as to the use about the face when a detainee was prone or being carried. The production of such guidance could have led to an appropriate appreciation of risk and I concluded eventually that it should have done.” The judge further commented, “I appreciate that there is a significant body of evidence that no one was in fact killed or very seriously injured because of the use of a belt as a spit or bite guard. It is, however, my assessment that is was only a matter of time before someone was going to be.”

An ERB was placed around Thomas’ head for over five minutes whilst in custody; he was later found to be suffering a cardiac arrest. At the previous hearing in April 2019, the court heard how the ERB was first approved for use by the force in 2002 as a limb restraint, but from about 2003 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 ill health and a diagnosis of schizophrenia. On 3 October 2012 he was arrested and detained by Devon and Cornwall and transported to Heavitree Road Police Station. He was later transferred to hospital and pronounced dead on 10 October 2012.

Alison Orchard, mother of Thomas said: “Our family feels no sense of real justice. Furthermore, we are angered by the police preventing us from reading our victim impact statement to the court today. However, investigations over the past six and a half years have highlighted some criminally poor Health and Safety practices which desperately needed changing and we hope, more than anything, that the residents of Devon and Cornwall will be, at least, a little safer after today as a result of Thomas’ death.”

The family’s full impact statement, prepared for the court but only permitted to be read in part, is available here.

Deborah Coles, Director of INQUEST said: “Thomas died a brutal and preventable death whilst in mental health crisis. The lengthy process which has followed has exposed criminally unsafe practices by Devon and Cornwall Police, and dangerous systems of oversight for policing equipment nationally which continue today. This rare prosecution represents a semblance of accountability; something the police have resisted from the outset.

The sentence should be a wake-up call to the Home Office and all police forces, who are failing to ensure there is systemic consideration of safety when introducing new, varied and potentially unsafe equipment into custody settings. Decisive action and a shift in culture and leadership is required to protect the public from further harms.”

Helen Stone of Hickman and Rose, solicitor for the family said: ““Devon and Cornwall police force has rightly been properly punished for its admitted failure to adhere to basic safety standards in this tragic case.

The fact that Devon and Cornwall pleaded guilty to breaching health and safety law is a positive step for the public's ability to hold the police to account. It should send a clear message to police around the country regarding their obligations to members of the public.

Although Judge Lambert previously ruled that he cannot be sure that the Emergency Response Belt caused Thomas' death, his comments in court today make it clear that he considers it was only a matter of time before someone was going to be killed or very seriously injured because of the use of the belt as a spit or bite guard.

But this case is also significant because it has exposed the worryingly haphazard way the UK’s police forces obtain and use the specialist equipment they deploy on Britain’s streets.

Currently there is no national oversight of the way this equipment is procured, tested and used. Each force is effectively able to make its own decisions - and its own deadly mistakes. This is deeply concerning.

Urgent consideration should be given to the creation of a national organisation to oversee police’s procurement, testing and use of all potentially deadly police equipment.”

ENDS

NOTES

For further information, interview requests and to note your interest, please contact Lucy McKay on 020 7263 1111 or email

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.