Sheku Bayoh: Judge moves to protect officers from self-incrimination over death in Police Scotland custody

The development draws parallels with civil cases over £100m in damages claims in the collapsed Rangers fraud case, where attempts have been made to use evidence uncovered for possible criminal proceedings.

Sheku Bayoh, a 31-year-old gas engineer died after being restrained by officers responding to a call in Kirkcaldy, Fife, in May, 2015 and the family have been demanding answers ever since.

The karate enthusiast who was known as "Sheik" to friends had been detained by police in the town's Hayfield Road and died in custody shortly afterwards.

Now Lord Bracadale, chairman of the Sheku Bayoh Inquiry, who has begun preliminary inquiry hearings in the case has said he has sought undertakings form the Solicitor General that in any future prosecution of an officer arising out of the events in Fife in 2015, she will not use against them evidence that officer has provided to the inquiry.

The judge has also decided to request the Deputy Chief Constable to also give an undertaking that in any future disciplinary proceedings against an individual arising of inquiry will not seek to rely on evidence given to the inquiry by that officer.

The judge said: "I have taken these decisions because I am satisfied that without these undertakings the inquiry is likely to be seriously impeded in fulfilling its function in relation to the terms of reference. I am satisfied that in the absence of undertakings officers and former officers would be highly likely to exercise their right against selfincrimination and would not give full, frank and uninhibited evidence to the inquiry.

"It is vitally important that all should understand the limited nature of the undertakings which I request. The requests do not seek immunity from prosecution or disciplinary proceedings. In the event that new evidence against officer A emerges in the inquiry it will be open to the Solicitor General and the Deputy Chief Constable to make use of that material as they think fit."

Lord Bracadale said that the undertaking does not extend to evidence of an incriminating nature given by an officer about another.

The judge added: "There is an important public interest in the inquiry ascertaining the truth as to what happened on May 3, 2015. That will involve a consideration by me of the whole evidence in order to find facts proved and draw inferences from proved facts. The terms of reference require me to establish the circumstances of the death of Sheku Bayoh and examine the post-incident management process. Without the undertakings, my ability to do that will be severely undermined.

"The terms of reference include the remit 'to establish the extent (if any) to which the events leading up to and following Mr Bayoh’ death, in particular the actions of the officers involved, were affected by his actual or perceived race and to make recommendations to address any findings in that regard'. I am satisfied that in the absence of the undertakings, my ability to satisfy this aspect of the terms of reference will be severely limited.

"I am conscious that the family of Sheku Bayoh were opposed to the making of the requests, but they have a strong interest in hearing the fullest account of what happened on May 3, 2015, leading to the death of Sheku Bayoh. Hearing the full evidence of the key witnesses is essential to achieving that. I am satisfied that in the absence of the undertakings the family are most unlikely to hear the full evidence of the officers in relation to events at Hayfield Road and subsequent events. I very much hope that they will come to understand that."

But solicitor Aamer Anwar, acting for the Bayoh family said what was sought by those acting for the police officers is a "demand for a convoluted form of immunity".

He said: "The family expect the Chief Constable to keep his promises to them during and after the inquiry.

"We note a number of police officers, backed by the Scottish Police Federation have stated that they may refuse to give evidence before the inquiry, if an undertaking is not granted that their evidence will not be used against them in any potential prosecution in the future.

"In the immediate aftermath of the death, the nine officers involved in the restraint or at the locus refused to give statements to the independent investigators.

"The police as the guardians of law and order, are given the powers of arrest, with the power to use force and weapons in reasonable and proportionate circumstances.

"But all those powers carry a heavy responsibility which means that they are not above the law and are expected to adhere to standards, and with standards comes accountability not silence.

"This inquiry owes its existence to the struggle fought by Sheku’s loved ones, and they believe the request for undertakings is an insult to the oath taken by police officers to uphold the law and an attempt to escape scrutiny.

"The Bayoh family maintain that if these officers have nothing to hide, then they have nothing to fear from coming and giving evidence to the inquiry, after all their Chief Constable has told the inquiry he is “fully committed to supporting the inquiry's aims and objectives with absolute candour".

"Sheku Bayoh’s loved ones have waited a very long time to hear the truth and that is the very least they are entitled to".

The hearing comes some six years and nine months after Sheku Bayoh died in police custody, and two years since the then Lord Advocate advised the Bayoh family that neither the police officer or Police Scotland would face charges for the death.

The inquiry, first announced in late, 2019 is considering issues including the circumstances of the death, the post-incident management and the extent to which events leading up to and following Mr Bayoh's death were affected by his actual or perceived race.

Inquiry chairman Lord Bracadale has said he is "fully committed" to getting to the truth of Mr Bayoh's death.

The family lawyer Aamer Anwar has said that the Crown Office and the Police Investigations and Review Commissioner (PIRC) had "betrayed justice".