MINISTERS are coming under pressure to review the powers of Scotland's police investigation unit after it emerged they have limited powers to compel police officers to co-operate with any probe involving serious incidents.

 

The revelations came as the Police Investigations and Review Commissioner confirmed they made several failed attempts to secure statements from nine arresting officers before they finally agreed to provide information in relation to the death of a Sierra Leonean Sheku Bayoh while in custody in Fife.

Scottish Police Federation sources have confirmed that officers are advised not to provide any operational statements relating to serious incidents they are involved with until such time as they are aware whether they are the subject of any criminal investigation.

Leading human rights lawyer Aamer Anwar, who acts for the Bayoh family has complained to Scotland's top law officer, Frank Mulholland, the Lord Advocate, having been made aware of a memo to officers from March that states they are not to provide operational statements relating to incidents they are involved with if there is a possibility of them being subject to criminal complaints.

In England and Wales under the Independent Police Complaints Commission police involved in deaths in custody are required to give immediate operational statements. A second more detailed statement is expected within 48 hours.

PIRC has confirmed that it can require a police officer to provide information for the purposes of an investigation where requested to do by the police or chief constable.

But where they have been directed to investigate by the Crown Office, investigators cannot compel officers to give any information.

Mr Anwar described the position as "an extremely dangerous situation."

He added: "It is time for the Scottish Government to act on the gaping hole in the law which fundamentally gives police officers immunity from PIRC in a death in custody."

PIRC confirmed on Thursday that officers involved in the incident that led to the death of Mr Bayoh have finally agreed to give statements, a month after he died of suspected asphyxia as he was restrained on a pavement in Kirkcaldy.

The 31-year-old father of two children, five-month old Isaac and Tyler, his three-year-old son, died after reportedly being hit by both pava and pepper spray as he was being restrained with handcuffs behind his back and with leg restraints.

Mr Anwar said: "It is astonishing, monumental incompetence or deliberate mistake, whatever you want to call it, that the organisation set up to investigate has its powers effectively stripped away from it when investigating the most serious thing that can happen to a police officer, when someone dies in your custody.

"This has huge implications for the people of Scotland, Lord Advocate, Crown Office, Scottish Government and the Chief Constable.

"I also represent police officers on a regular basis, I support 100% their right to silence if they are accused of criminality. But if they are not accused of criminality, they have an absolute duty in a democracy to say what happened in the line of duty, in order that a full investigation can be carried out.

"It is a suspicious death. There must be a rule in Scottish law and in police conduct regulations that says that those officers must give operational statements.

"If you are saying you have nothing to hide, you have nothing to fear from speaking to your boss.

Human rights campaigners Scotland Against Criminalising Communities said the PIRC probe had become a "fiasco" believing it had neither the resources or the will to investigate the most serious incidents involving the police.

The group said there should be a review of PIRC's handling of this case, and its performance more generally giving "consideration to the possibility that institutional racism has played a part".

SACC said the system of police investigation needed an "overhaul" saying the long delay in gathering statements in the Bayoh case will mean that memories are no longer fresh while officers would have "extensive opportunities to confer".

SACC chairman Richard Haley said: "The police are under a stronger obligation to co-operate with a police investigation, than you and I would be.

"Although the PIRC are supposed to have police-like powers, they are not conducting themselves the way a police force would if they were embarking on an investigation into a violent death."

Brian Docherty, chairman of the Scottish Police Federation said that in the past there would be an operational statement and a post-incident management structure set in place and a statement of fact would be taken from those involved.

But he said, referring to the police memo the situation "had changed" and officers should know whether they are the subject of a criminal investigation before or she will provide their statement.

He said:"The bottom line is that the family have got to get their closure, they need a response, we need the inquiry to be finished, because we have the police officers needing closure on what is happening with this too.

"In any statement to be provided by a police officer, operational or ordinary statement, we are afforded the same protection in law as anyone else so clarity has to be obtained in respect of their status before that statement is given, is it going to be as a witness or under caution. That clarity was being sought.

"My concern is why has it take a month for PIRC to clarify the status of individual officers, I don't know that and I am seeking that clarity. Why have they not identified well in advance the individual officers they are treating as witnesses, I don't know that."

When asked if any change to procedure would be looked at, a PIRC source said: "We can't make Police Scotland apply our recommendations. We can make the recommendations, and follow up with them, but they are not statutorily obliged to implement them.

"I can only hope that when the investigation is concluded that we will have achieved an outcome that will be satisfactory to everyone concerned. If there is criminal proceedings that will be an issue for the Crown to take forward. We have staff working round the clock to get an outcome for the family and for the Crown."

Police Scotland would not immediately disclose details of their operational procedures or the memo.

A spokeswoman asked to comment on the issues raised by the case added: "Instructions concerning this matter were issued in March in compliance with instructions from the Crown Office.

"Due to the ongoing investigation in relation to Sheku Bayoh by PIRC, it would be inappropriate to comment further at this time.

A Scottish Government spokesman said: "The Scottish Government cannot comment on individual cases or ongoing investigations by the PIRC, which is under the direction of the Crown. We believe the powers that the PIRC currently have are sufficient."