Public statement by SACC, 26 June 2020
SACC gives a cautious welcome to the forthcoming public inquiry into the death of Sheku Bayoh in police custody in 2015. But we believe that the inquiry’s remit is only just wide enough for the task it must confront. If the inquiry is to succeed it will need to exercise its remit with boldness and determination. And it will need to insist on its independence from the Lord Advocate.
A start date for the inquiry has not yet been announced. Once started, the inquiry may take a year or more to reach its conclusions.
The Scottish Government’s decision to set up the public inquiry follows the Lord Advocate’s announcement in 2018 – confirmed in November 2019 – that none of the police officers involved in Sheku’s death will be prosecuted.
It will be chaired by retired judge Lord Bracadale and is being held under the Inquiries Act 2005. It will cover the matters that would have been covered by a Fatal Accident Inquiry (FAI), plus some matters that are beyond the remit of an FAI. An FAI fulfils the function covered in England, Wales and Northern Ireland by an inquest. It is mandatory for all deaths in police custody in Scotland, but the requirement may be waived if the Lord Advocate considers that the circumstances of death have been sufficiently established by other proceedings, such as criminal proceedings or a public inquiry.
It was clear within a few months of Sheku’s death that issues had been raised that could not be dealt with by an FAI and that a public inquiry would sooner or later be needed. SACC made this point at the launch of the Justice For Sheku Bayoh Campaign in July 2015 and have been repeating it ever since. The Scottish Government’s eventual decision to hold a public inquiry is a testament to the grit and determination of Sheku’s family.
The individuals and organisations involved in Sheku’s death must be held to account. Scotland’s legal system has a moral duty to Sheku’s family and the Scottish public to do that. It also has an international obligation under Article 2 (“right to life”) of the European Convention on Human Rights. The European Court of Human Rights treats the right to life as carrying with it a procedural requirement that states must conduct an investigation into any killing by State agents. The investigation must "be capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible."1 And there must be a sufficient level of public scrutiny to secure accountability.
The proceedings so far have not met these requirements. It remains to be seen whether the public inquiry will do so.
The remit of the public inquiry has been welcomed by Sheku’s family and is no doubt the best that the Scottish Government was prepared to grant. Very importantly, it requires the inquiry "to establish the extent (if any) to which the events leading up to and following Mr Bayoh’s death, in particular the actions of the officers involved, were affected by his actual or perceived race."
This is an opportunity to address the issue of institutional racism in the police force. That task is at least twenty years overdue and it is crucial that the opportunity is taken up.
The problem with the remit is that it does not require the inquiry to determine whether Sheku Bayoh’s death was lawful. An inquest in England or Wales would do that, but an FAI in Scotland would not.
The only decision taken so far that might be seen as relating to the lawfulness of Sheku Bayoh’s death is the Lord Advocate’s decision, taken behind closed doors, not to prosecute any police officers. That unaccountable process does not meet the requirements of natural justice and most likely would not be considered by the European Court of Human Rights to meet the procedural requirements of Article 2 of the Convention.
Though the inquiry’s remit does not require it to reach a conclusion on the lawfulness of Sheku’s death, it does require it to examine compliance with Convention rights. Lord Bracadale must use the latitude provided by the remit to determine whether, on the balance of probability, Sheku Bayoh’s death was lawful.
He must also use his power under the Inquiries Act 2005 to compel witnesses to attend hearings, including police officers present during the restraint of Sheku Bayoh, police officers involved in the subsequent case management and investigation, senior officers in the relevant chains of command, including former Chief Constable Stephen House, and officers with background information relevant to the inquiry.
The Lord Advocate must not grant any of these officers immunity from prosecution. Without immunity, officers would be entitled to refuse to answer questions that could incriminate them. But the possibility that they may provide fuller answers in exchange for immunity cannot outweigh the violation of natural justice and the European Convention on Human Rights that immunity would entail.
It is in any case far from certain that officers would provide full and frank answers even if they were to be granted immunity. The Lord Advocate gave immunity to prison officers involved in the death of Allan Marshall in Saughton Prison in 2015. But the testimony given by the officers at last year’s FAI was heavily criticised by Sheriff Gordon Liddle. He described them as “reluctant witnesses” and found much of their testimony to be unreliable. The Lord Advocate had allowed them to trade accountability under the law for junk testimony. This is a mistake that must not be repeated.
None of the investigations held so far into the death of Sheku Bayoh have been fit for purpose, unless their purpose was the deflection and sabotage of justice. In the circumstances, we cannot view the public inquiry with anything but caution. But we also recognise that the public inquiry is unprecedented, not just in Scotland but anywhere in the UK. It will address issues of institutional racism that have festered for far too long in Scotland. It may, just possibly, open a pathway to justice. Its chances of doing so will be increased by active public scrutiny. We urge everyone to bring to it a mixture of realism and high expectations.
- Justice for Sheku Bayoh - the launch of the Justice for Sheku Bayoh Campaign, 25 July 2015 (report and videos)
- Statement by SACC Chair, Richard Haley, at the launch of the Justice for Sheku Bayoh Campaign, 25 July 2015
- 'Serious allegations of criminality with regard to certain police officers' - statement by Aamer Anwar after meeting with Chief Constable Stephen House, 7 September 2015
- SACC calls for public inquiry into Sheku Bayoh's death, press release 2 October 2018
- Statement by Aamer Anwar on the Lord Advocate's decision not to charge police over Sheku Bayoh's death, 3 October 2018
- Public Inquiry into the death of Sheku Bayoh - final terms of reference - press release from Aamer Anwar, 21 May 2020
- 1. In Kelly and Others v. the United Kingdom, 2001