Devon and Cornwall Police Headquarters
12 July 2019

The decision of a disciplinary panel following a preliminary hearing has today been announced. The panel discontinued the proceedings against four Devon and Cornwall Police officers facing allegations of gross misconduct in relation their interactions with Thomas Orchard on 3 October 2012. Thomas, 32, died seven days later on 10 October. 
 
The panel rejected an argument put forward by the officers that the panel should dismiss the charges on the basis of an inadequacy of evidence, accepting submissions on behalf of Devon and Cornwall Police and the Independent Office for Police Conduct (IOPC) that it did not have the power to strike out a hearing at the outset for want of evidence. However, the panel concluded that in its opinion the officers could not have a fair hearing because:

1. The panel had insufficient confidence in the disclosure process;
2. The delay had caused irredeemable prejudice; and
3. In respect of three officers, there had been a departure from the regulatory framework such that the officers could not have a fair hearing.

In February 2018, following its independent investigation into the death of Thomas Orchard, the IOPC directed Devon and Cornwall Police to bring disciplinary hearings for gross misconduct against PS Kingshott, PS Kennedy, PC Dodd, and PC Nagle, as well as against two detention officers.
 
Devon and Cornwall Police were directed by the IOPC to bring these proceedings as the force had refused to do so of its own volition. The details of the gross misconduct charges that the officers were facing have never been made public. Police officers and police staff have different disciplinary proceedings and therefore today’s decision only relates to the four police officers.
 
The four police officers made an application that to go ahead with the process would amount to an ‘abuse of process’. A preliminary hearing was therefore convened to hear these arguments between the 24 June and 28 June 2019. On 20 June 2019 the family were told that the IOPC had decided that this hearing would be held in private, with the decision being made public. Thomas’ family were able to attend the hearing but were refused access to the underlying documentation in the case, running to over 12,000 pages.
 
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 (ERB), 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.
  
The family of Thomas Orchard said: “Strangely, we are not surprised, and yet deeply shocked, at the ruling announced today. 
 
Despite their being charged with behaviour that could amount to gross misconduct, no further action will be taken against four police officers whose actions, together with others, in our opinion, directly led to Thomas’ death. And this is because of, what we believe to be, incompetence, negligence and sloppy practices from the very people and processes that were meant to protect our son. We are not surprised because, in our assessment, we have witnessed it again and again over the past seven years. We are not surprised because, to be honest, we never really had any faith in this tribunal, believing it to be an investigation held – only reluctantly after direction from the IOPC - by the police, for the police.
 
However, we also remain deeply shocked. As a family we used to believe in the system; we believed that if something bad happened, justice would be served. But no-one and no process that we have witnessed to date has fully explored - openly, honestly and constructively - the catastrophic failings surrounding Thomas’ death. 
 
We feel let down and have been failed beyond belief. 
 
The saddest thing is for us is that Thomas’ death was in vain; worse than that, it seems to have reinforced the notion that the Police can behave in ways that we see to have been grossly irresponsible, negligent and reckless … and get away with it.”
 
Deborah Coles, Director of INQUEST said: “Thomas’ restraint death during a mental health crisis was one of the worst in recent policing history. Two months ago this Force was fined for criminally unsafe restraint practises exposed by his death. That this disciplinary hearing has been stopped before it even started is simply deplorable. It is dumbfounding that process considerations have been found more important than the need for public accountability.
 
For seven years his family have had to battle against delay, denial and obfuscation. This shameful outcome points to the impunity of the police, and a process which frustrates the prevention of abuse of power and ill treatment.
 
This undermines any confidence in a desire to learn after needless and preventable deaths. 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 of Hickman and Rose who represents the family said: “It is a matter of general public concern that no police officers will face disciplinary hearings to account for their actions towards Thomas, after a panel decided today that they could not have a fair hearing. 
 
The public will share the family’s significant concerns as to how this has happened, given that an independent investigation found that there was a case to answer for gross misconduct. 
 
If the panel’s decision is justified, there have clearly been failures by the IOPC and/or Devon and Cornwall Police that has led to this result. Such failures significantly undermine confidence in the police complaints and disciplinary process and do nothing to achieve the kind of accountability this family deserve and the public would expect after a death in custody that has given rise to several criminal proceedings. 
 
After nearly seven years, no proceedings have yet answered how Thomas came by his death whilst in the custody of Devon and Cornwall police. No family should have to wait this long for answers about their loved ones death whilst in the care of the state.”

ENDS

NOTES TO EDITORS:

For further information, interview requests and to note your interest, please contact Sarah Uncles on 020 7263 1111 [email protected]
 
INQUEST Senior Caseworker Victoria McNally 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.
 
The decision and rationale will be available on the Devon and Cornwall Police website.

The Independent Office for Police Conduct 2017/18 annual statistical report identified the highest number of deaths recorded in or following police custody since 2004, 17 involving the use of force and restraint.
 
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.
 
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 chargethe 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.