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Health and safety penalty in death cell case 'will hit officer recruitment'

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Force fined £234,500 in landmark conviction against office of the chief constable.

Emergency Response Belt: Judge Julian Lambert ruled he could not be sure that the ERB, designed to restrain limbs, was a contributory factor in Thomas Orchard's death

Emergency Response Belt: Judge Julian Lambert ruled he could not be sure that the ERB, designed to restrain limbs, was a contributory factor in Thomas Orchard's death

Date - 3rd May 2019
By - Nick Hudson - Police Oracle
1 Comment1 Comment}

 

Recruitment will be put “on hold” after a force was fined £234,500 for health and safety breaches in relation to an emergency response belt used around the face of a man before he collapsed in detention.

The six-figure sum handed out at Bristol Crown Court meant around seven new officers would not be able to join the Devon and Cornwall force as a result of the financial penalty, it announced.

Thomas Orchard, 32, died in hospital seven days after being arrested and taken to Heavitree Road police station in Exeter, Devon, in October 2012.

While in custody, Mr Orchard, who had paranoid schizophrenia, was restrained and an ERB was placed across his face to prevent spitting or biting for five minutes and two seconds.

The restraints were removed and the church caretaker was left in a locked cell, where he lay apparently motionless for 12 minutes before custody staff re-entered and started CPR.

A post-mortem examination found he died from a severe hypoxic-ischemic brain injury.

In a landmark conviction in 2018, the office of the chief constable of Devon and Cornwall Police admitted breaches under the Health and Safety at Work Act.

The charge stated that the force failed to ensure non-employees, including Mr Orchard, were not exposed to risks in connection with the ERB.

Last month, Judge Julian Lambert ruled he could not be sure that the ERB, designed to restrain limbs, was a contributory factor in Mr Orchard's death.

On Friday, he fined the force £234,500 at a sentencing hearing, and said the force's approval of the belt for use about the face followed a "fundamentally flawed process".

The force was also ordered to pay £20,515 in costs.

Outside court, Chief Constable Shaun Sawyer said: "Today's sentence is clear in its judgment that the actions of Devon and Cornwall Police did not lead to the death of Thomas Orchard.

And he said the fine was well short of the £6 million the prosecution had been seeking.

Earlier, Jason Beer QC, representing the force, said any fine would have to be funded by a halt in recruitment.

Every £100,000 fine would result in a reduction of three recruits for Devon and Cornwall Police, he said.

"It took the occurrence of Mr Orchard's tragic death to reveal errors in the procurement, risk assessment and training procedures in the force," Mr Beer told the court.

"The use of the device did not, on the evidence, cause actual harm to any person."

Following the sentencing, the Independent Office for Police Conduct is expected to initiate misconduct proceedings against officers.

Judge Lambert said use of the belt over the face "crept in" despite the force only approving it for use as a limb restraint in 2002.

By 2003, force policy was changed to advocate the use of the ERB over the face.

"This occurred without any risk assessment or any research being carried out on the effects of use of the emergency response belt as a hood," the judge said.

"The prosecution properly characterises this as a fundamentally flawed process. This was accompanied with a lack of uniformity in training."

In mitigation, the force said the belt had been used around 500 times about the head before Mr Orchard's death without reports of injury.

The judge said: "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 the belt as a spit or bite guard.

"It is, however, my assessment that it was only a matter of time before someone was going to be.

"The ERB didn't automatically restrict breathing when used as a hood but it had the capacity to do so in certain situations.

"If breathing were restricted in an excited and possibly delirious detainee, perhaps not in good health, I considered it stood to reason that the predicate very serious consequences might ensure."

The judge said that concerns were raised about the ERB used about the face in a report by Dr Graham Cook in 2001 – 11 years before Mr Orchard's death.

"This report was available to the defendant in 2002 but its concerns were not properly appreciated," Judge Lambert said.

"There was an alarming inadvertence to risk."

During the hearing, Mark Heywood QC for the prosecution read an extract of a victim personal statement by Mr Orchard's mother Alison.

She described the impact of the church caretaker's death on his family.

"It has been painful to witness how an organisation which had a duty of care for Thomas was so casual, disorganised and sloppy in their approach to health and safety," she said.

"Perhaps the hardest thing to hear was how Thomas's detention could have and should have been managed."

She said the family's faith in Devon and Cornwall Police had been "tarnished" and they had been left "fearful" of how they would be treated by officers.

Speaking outside court, Mr Orchard's father Ken Orchard said the family were leaving court with "no sense of real justice".

"Investigations over the past six-and-a-half years have highlighted some criminally appalling health and safety practices which desperately needed changing," he said.

"We hope more than anything that the residents of Devon and Cornwall will be at least a little safer today as a result of Thomas's death."

Helen Stone, of Hickman and Rose, the Orchard family's solicitor, said: "Although Judge Lambert previously ruled that he cannot be sure that the emergency response belt caused Thomas's 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."

IOPC regional director Sarah Green said: "Devon and Cornwall Police's guilty plea last year on health and safety charges represented a landmark conviction as the first ever from a police force in relation to a death in custody.

"While there was a failure with the force's corporate decision making, we maintain that there is also a need for the actions of some individual officers involved in the detention and restraint of Mr Orchard prior to his death to be considered by a misconduct hearing panel."

The IOPC said arrangements were being made for misconduct hearings to be held by Devon and Cornwall Police.

CC Sawyer said the force responded quickly to matters arising as a result of Mr Orchard's death.

"The court noted that there had been no recommendations from the IOPC or HSE, yet nevertheless the force acted proactively in response to this tragedy," he said.

"Devon and Cornwall Police is a very different organisation six-and-a-half years on from Thomas Orchard's death in terms of the training delivered to staff, awareness of mental health crisis and our ability to identify and manage violent, vulnerable people coming into police contact," he added.

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