A judge cannot be sure a restraint belt placed across the face of a mentally ill man while in police custody contributed to him suffering a fatal cardiac arrest, a court heard.
Thomas Orchard, 32, died in hospital seven days after being arrested and taken to Heavitree Road police station in Exeter, Devon, in October 2012.
During his detention Mr Orchard, who had paranoid schizophrenia, was restrained and an emergency response belt (ERB) was placed across his face.
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 resuscitation.
A post-mortem examination found he died from a severe hypoxic-ischemic brain injury seven days after suffering the cardiac arrest.
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 but disputed that the belt contributed to Mr Orchard’s death.
A three-day trial of issue was held at Bristol Crown Court before Judge Julian Lambert to resolve the disputed matters.
In his ruling, the judge said the burden of proof lay with the prosecution who had to show the belt played a “significant” role in Mr Orchard’s death.
He said it was not clear from the CCTV evidence inside the police station that the ERB obstructed Mr Orchard’s breathing.
“For the ERB to be a significant contributory cause of death I would have to be sure of the position and tightness of the belt around the face to restrict breathing,” Judge Lambert said.
“Having examined the evidence, reviewed the images and hearing the evidence over the last three days it is not clear to me on this issue.
“I have therefore concluded that I cannot be sure on the issue of causation.”
He added that due to his first finding the other disputed matters fell away.
The court had earlier heard the ERB was first approved for use by the force as a limb restraint in a custody setting in 2002 but was later used as a spit or bite guard.
After Mr Orchard’s death, laboratory tests were carried out on the US-made webbing belt.
The belt formed a “seal” around the mouth of a dummy head when wet and in a certain position and the material restricted airflow more than tea towels, overalls, a handkerchief and dust masks.
Home Office pathologist Dr Russell Delaney told the court it was not possible for him to conclude the ERB contributed to Mr Orchard’s death.
He said that, if the judge found the belt had restricted Mr Orchard’s breathing, it would be one of the factors in the “multifactorial” death.
Jason Beer QC, representing Devon and Cornwall Police, said there were five other “plausible causes” for Mr Orchard’s death.
He said these included cardiac arrest from “acute behavioural disturbance” from Mr Orchard stopping his anti-psychotic medication.
Prolonged physical exertion could have also been a cause, as well as potential interference with Mr Orchard’s breathing muscles by him being restrained.
The fact Mr Orchard had been in a prone position for a long period of time could also have been a cause.
A second pathologist, Dr Deryk James, said the placing of the ERB over Mr Orchard’s face “could have been the straw that broke the camel’s back” but concluded it could not be “ascertained” what role the belt played in his death.
Judge Lambert will pass sentence on May 3.
Speaking outside court, Mr Orchard’s mother Alison Orchard said: “We still think Thomas’s death was 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 really hard to believe after all we have witnessed.
“But more than anything we have always been hopeful that Thomas’s death would not have been in vain and lessons would have been learnt from it.
“We therefore hope, despite his decision about causation of Thomas’s death, that the judge will consider both the culpability of Devon and Cornwall Police in their breach of the health and safety regulations and the potential for harm by that breach is of the very highest order when he makes his decisions on sentencing.”
In a written statement, Shaun Sawyer, the chief constable of Devon and Cornwall Police, said: “Today Judge Lambert decided that he was not satisfied the use of the ERB on Thomas Orchard caused or contributed to his death.
“I respect this decision, indeed it has always been the position of Devon and Cornwall Police
“This matter is not complete as we await sentencing on May 3. It would be inappropriate to comment further until that point.
“My primary thought is for the family of Thomas Orchard. The last six and a half years is something I and no family would want to go through.”