THE Crown Office decision not to prosecute anyone is reflective of the complicated and unique nature of the case around the tragic death of Sheku Bayoh in May 2015.
The criminal investigation into the events was unusual as it was not carried out by police officers but by investigators under the aegis of the Police Investigations Review Commissioner (PIRC). They reported directly to the Crown Office in 2016. They have had jurisdiction when there is a serious criminal allegation against police officers since Police Scotland was established five years ago.
This is the first time that police officers have been investigated in relation to a death in custody using this approach. Yet, despite having this report for two years the Crown Office has taken until now to make its decision. One of the issues was said to be the complexity of the medical evidence though this has not been released.
Whenever someone dies under the control of the police it is a mandatory obligation to hold Fatal Accident Inquiry (FAI). Three years after Sheku Bayoh’s death this has still not occurred. The purpose of an FAI is to establish the facts and whether there were any systemic problems that led to the fatality, not to explore issues surrounding any criminal actions.
The Lord Advocate has argued that these points needed to be cleared up and a decision made before any FAI could proceed. A similar delay beset the Clutha Bar tragedy – its FAI begins yesterday five years after the event.
The Crown Office obviously did not want a situation to arise like the Glasgow Bin Lorry Tragedy in 2014where in the rush to have an FAI it led to a relatively quick decision that the driver, Harry Clarke, would not face any criminal charges.
In ruling out criminal prosecutions the Lord Advocate had to decide if there was a “public interest” to prosecute. Firstly was a crime committed? For the Crown Office the answer to this in the Bayoh case was no.
Regardless of this decision the family have lodged a civil legal action for damages related to the unlawful killing of Sheku Bayoh. Although there maybe no criminal action the courts will still be busy with the case.
Dr Mckerrell is a Lecture in Law at Glasgow Caledonian University
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