THE inquiry into the death of Sheku Bayoh in police custody will not be extended to cover the decision not to prosecute any officers, the Deputy First Minister has said.
Kate Forbes argued it would not be in the public interest to grant the Bayoh’s family’s request for the inquiry to examine why the Crown Office decided not to take legal action against the police involved in the father-of-two’s death.
However, Aamer Anwar, the Bayoh family’s legal representative, said that the Deputy First Minister’s statement had been “confused” and in fact empowered the inquiry to look at whether the Crown Office decision not to prosecute had been flawed.
He said this statement from Forbes had granted the Bayoh family’s request “through the back door”.
Bayoh died after he was restrained by around six police officers who were called to Hayfield Road in Kirkcaldy, Fife, on May 3, 2015.
His family had urged Forbes to extend the terms of reference of the public inquiry investigating the circumstances of his death and whether race was a factor, to also include the Crown’s decisions not to bring any prosecutions in 2018 and 2019.
After months of speculation, Forbes appeared to announce on Tuesday that the remit of the inquiry will remain unchanged.
Forbes said: “Mr Bayoh’s family continue to have my deepest condolences.
“As set out in legislation, I may amend the terms of reference if I consider the public interest requires this. The inquiry’s terms of reference were announced in May 2020 and I have decided it is not in the public interest to extend the remit almost five years later and after evidential hearings have concluded.
“I am confident that the terms of reference, as announced in 2020, are sufficiently broad to allow the chair to present a substantial report with detailed findings and recommendations – including on the investigation and the extent to which Mr Bayoh’s actual or perceived race was a factor.”
However, Anwar said Forbes had appeared to have contradictorily opened the door to a probe into the Crown Office’s decision not to prosecute any officers.
The lawyer said: “In what can only be described as a confused, inaccurate, and flawed decision, the DFM has inadvertently opened the door to what the Bayoh family sought.
"She stated in her letter to us this morning: ‘I am also aware that evidence has emerged during the inquiry, which could be interpreted as calling into question aspects of the basis on which the prosecutorial decisions were made.
"‘I understand that the family wish to see this pursued as far as possible … I am confident that the inquiry chair will be able to highlight in his report any evidence which has emerged under the current terms of reference, which suggests that prosecutorial decisions may have been made on a flawed basis.’”
Anwar added: “We are left somewhat surprised… In effect, she has now granted the chair the right to highlight any flawed prosecutorial decisions made on flawed basis – that is exactly what the family have been seeking but what Crown Office and Police Scotland have feared.”
Anwar further said that the Bayoh family had “described today’s decision by the Deputy First Minister Kate Forbes as a cowardly betrayal of the promises the Scottish Government made to them in 2019, for an inquiry that would be allowed to uncover the truth, without fear or favour”.
The Deputy First Minister said she had to consider the impact of a delay from any extension, with the inquiry estimating that extending the terms of reference would require it to continue for another year.
She wrote: “It is vital that the inquiry produces its report and recommendations as soon as possible, so that justice agencies can begin to implement those and take on board the learning, which will be available from the report.
“This is key to preventing other tragic future incidents.
“There is a risk of aspects of the inquiry’s report and recommendations being overtaken by events on the ground if the process of producing a report becomes too protracted.”
The inquiry, which has heard 122 days of evidence, will now move to closing submissions.
Inquiry chairman Alastair Campbell, Lord Bracadale, has pledged he will then prepare his final report without delay.
He said: “Scottish ministers have decided not to extend the terms of reference for the inquiry, rejecting Mr Bayoh’s families’ request.
“I recognise that this decision will disappoint Mr Bayoh’s families. They are at the heart of this inquiry, and I want to reassure them that the existing terms of reference have been thoroughly examined over 122 days of evidential hearings.
“There is much important work for the inquiry still to do, not least proceeding with closing submissions that were postponed while we awaited a decision. My team and I are working at pace and will announce timescales in due course.”
A Crown Office and Procurator Fiscal Service (COPFS) spokesperson said: “COPFS continues to be supportive of the inquiry as a source of transparency and accountability.
“We welcome every opportunity to reflect upon our work and identify any possible areas for improvement.
“The Crown examined the death of Sheku Bayoh in great detail and has reserved its right to prosecute.”
