THE FAMILY of Sheku Bayoh, who died while under arrest in Fife say they have been left "saddened" as the justice secretary confirmed police officers are entitled to refuse to give a statement on deaths in custody if there is a possibility that they will be involved in a criminal complaint.

The Police Investigations and Review Commissioner (PIRC) said several failed attempts were made to secure police statements over the death in custody of Sheku Bayoh in Kirkcaldy on May 3.

Justice Secretary Michael Matheson confirmed revelations in the Sunday Herald, that there was a change in police operating procedure on their co-operation with PIRC to protect the rights of officers that may have been a witness to events.

Family members and human rights campaigners had called for a shake-up over PIRC investigations after it took a month for police officers to co-operate by giving statements in relation to the death.

Mr Bayoh, a 31-year-old gas engineer with two children, who has lived in Fife for 14 years, died of suspected asphyxia as officers restrained him on a pavement in Hayfield Road.

It is estimated that nine officers were involved in the incident and officers reportedly used pepper and pava spray, handcuffs, leg restraints and batons to subdue the father-of-two. Police were responding to complaints he was wielding a knife on the street.

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 confirmed to the Sunday Herald that when they have been directed to investigate police officers by the Crown Office, investigators cannot compel officers to give any information.

Mr Matheson said he has received no complaint from PIRC about the scope of its powers.

Fife Labour MSP Claire Baker acknowledged that officers have the same right to protection from self-incrimination as any other citizen but said the change in regulations is impeding PIRC investigations.

"There is an investigation ongoing into the circumstances of his death and his family understandably want answers," she said.

"My understanding is that in a serious case such as a death in custody, the accompanying regulation five of PIRC Regulations 2013, which provides PIRC with the power to require information from police officers, does not apply and no witness can be compelled to give a statement.

"In addition, it has been reported that in March a Police Scotland memo was issued to police officers following an agreement with the Crown advising them that they do not have to provide operational statements relating to incidents that they have been involved with if there is a possibility of them being involved in a criminal complaint.

"It leads to a situation where at the exact stage where PIRC needs the strongest possible powers, its powers are restricted and officers are being advised that they do not need to co-operate where there is a possibility of criminal complaint."

Mr Matheson said it would be inappropriate to comment on an ongoing investigation.

He said: "In general terms, the member is correct that there were some changes to the operating standard procedure that she refers to.

"That was a change to reflect the particular circumstances where an individual officer may be a witness to a particular event and they are considered on a case-by-case basis when it comes to taking a statement from those officers.

"Routinely, though, the normal process would be that if they had been a witness they should not be relieved of their duties until an operational statement has been written, but that is also dealt with on a case-by-case basis."

He added: "To date, we have not received any representation from PIRC in relation to their particular powers."

A Bayoh family statement said they were "saddened today at the response of the Scottish Government to their concerns".

"It has been clear to the family since day one that PIRC do not have sufficient powers for investigations into serious incidents such as deaths in custody, hence why they were forced to wait 32 days for police officers to comply.

"It is common sense, if PIRC have 'sufficient powers' claimed then how come they were unable to use them in the Bayoh case?

"PIRC have repeatedly advised the Bayoh family of their frustrations at their lack of powers , however it is not for public servants such as PIRC to ask for changes in the law.

"The Government should have the courage to accept that there is a case to answer and to extend the PIRC's powers, putting them on a par with their English counterparts.

"It really does not make sense that the PIRC can only exercise its full range of powers if directed to do so by the Chief Constable but not when directed by the Lord Advocate."