The family of a man who died in police custody have reacted with fury over a proposed ban on prosecuting officers using evidence they give at a public inquiry.
The inquiry is being held into the 2015 death of Sheku Bayoh after he was restrained by officers responding to a call in Kirkcaldy, Fife.
At a preliminary hearing in Edinburgh on Tuesday, inquiry chairman Lord Bracadale heard arguments over the seeking of an “undertaking” from prosecutors.
That would prevent evidence given by any officer at the inquiry being used in their prosecution, or the decision to mount a prosecution against them.
An undertaking is also being sought from police chiefs guaranteeing an individual’s testimony wouldn’t be used in disciplinary proceedings.
Aamer Anwar, solicitor for the Bayoh family, said any threat that an officer wouldn’t testify without these protections was an “astonishing position”.
During the hearing, Angela Grahame QC, senior counsel to the inquiry, recommended that Lord Bracadale seek both undertakings.
Ms Grahame said requests for the provisions had been made by lawyers for Pc Daniel Gibson, Pc James McDonough and Sergeant Scott Maxwell.
But she recommended it cover all 12 of the current or former officers being asked to give evidence.
Ms Grahame said witnesses have the “right to refuse to answer questions that may tend to incriminate them under the privilege against self-incrimination”.
Without undertakings, she said “some and perhaps all” could decline to answer questions and the inquiry would be “significantly impaired”.
Ms Grahame said an undertaking from the Solicitor General would “serve a limited purpose which does not amount to immunity from prosecution”.
She said similar undertaking were granted in other public inquiries, including those probing the murder of Stephen Lawrence, Bloody Sunday, and the Grenfell Tower fire.
Ms Grahame said officers may be “inhibited from giving a frank explanation because of the risk of self-incrimination”.
Shelagh McCall QC, senior counsel for Pc Gibson, Pc James McDonough and Sergeant Maxwell, said there was a “risk of misconception of what is being sought here”.
Ms McCall said legal representatives of the Bayoh family framed the application made by her clients as “demanding some convoluted form of immunity”.
She said there was “no suggestion that an undertaking grants any sort of immunity to any officer” and its scope was “very limited”.
Claire Mitchell QC, acting for the Bayoh family, told the hearing that relatives opposed seeking undertakings from both the Solicitor General and Deputy Chief Constable.
Ms Mitchell said a “duty of candour exists for police officers”.
She added: “The family of Sheku Bayoh have a legitimate expectation that police officers will give every assistance after a serious incident, and that assistance extends to coming to a public inquiry and answering all and any legitimate and relevant questions put to them.”
Roddy Dunlop QC, for the Scottish Police Federation, who also acts for retired Pc Nicole Short and Pc Craig Walker, said written submissions opposing the undertakings had described the requests as “astonishing”, as “shameful”, and “insulting”.
He said: “Those descriptions are wholly unwarranted.”
Mr Dunlop said such requests were “commonplace” and “no respectable, sensible lawyer” would fail to at least explore their availability.
He said: “There is nothing shameful. It is sensible and it is lawful, in particular against a backdrop where there is an ongoing campaign on social media describing matters in a way that suggest criminality on the part of certain individuals.”
Gordon Jackson QC, senior counsel for Pc Kayleigh Good, Pc Alan Smith and Pc Ashley Tomlinson, said the Bayoh family “wish to have the truth in every possible way that it can be explored” but failing to request undertakings will “force officers to rely on the provision of the right against self-incrimination”.
Mr Jackson said it was “somewhat disturbing” if suggestions were made that relying on the right against self-incrimination meant you’ve “somehow got something to hide” and are “abusing the process”.
Bayoh, 32, originally from Sierra Leone, died after being restrained by up to nine police officers who used CS spray, pepper spray and batons.
Officers had responded to reports of a man waving a knife in the town centre. Bayoh was unarmed at the time of the confrontation.
Lord Bracadale said he would issue a decision on the matter “as soon as I can”.
The public inquiry, which will consider whether race played a part in Bayoh’s death, is due to begin in May.
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