11 November 2019

The Lord Advocate, chief public prosecutor for Scotland, has today confirmed a decision not to charge Police Scotland or the five officers involved in the death of Sheku Bayoh with criminal, corporate or health and safety offences. This follows a submission from the Bayoh family to review the original decision of October 2018, and is despite new evidence arising as part of a BBC Documentary.

The family have expressed their feelings of betrayal and disappointment, and do not accept the reasoning of the Crown Office. They do not believe that a Fatal Accident Inquiry (the equivalent to an inquest) under the control of the Lord Advocate would have the remit or the courage to deal with their concerns or the wider public concerns arising.

The family now repeat their call for a public inquiry into Sheku’s death. They will be meeting with the First Minister at the Scottish Parliament tomorrow on Tuesday 12 November at 12.00pm along with the Cabinet Secretary for Justice, Humza Yousaf.

Sheku Bayoh was 31 years old when he died after being restrained by up to five police officers on 3 May 2015, in Kirkcaldy, Scotland. Sheku, a black man born in Sierra Leone, was a trainee gas engineer and father of two. His death has been of significant controversy, raising community concern over racism within Police Scotland.

On the morning of 3 May 2015, police received a call about a man behaving unusually. Sheku was stopped by police and was held face down on the ground within 46 seconds from the arrival of the first two officers. During the restraint officers used CS spray, batons, leg and ankle restraints and handcuffs. A post-mortem revealed that he sustained facial injuries, bruises to his body and a fracture to his rib. Around an hour and a half after the restraint, he was pronounced dead.

Sixteen months after the death, the Police Investigations Review Commissioner (PIRC), who investigate deaths in police custody and contact in Scotland, submitted their investigation to the Lord Advocate. The family waited two years for the original decision and have waited a further year for this review to be completed.

In the past five years there have been eight deaths in the custody of Police Scotland, according to an Freedom of Information request published by The National newspaper. All are awaiting FAIs and no investigation reports have been published.

Kadi Johnson, the sister of Sheku Bayoh, said: “We the family lost confidence a long time ago in the ability of PIRC to carry out a robust and impartial investigation, but we have tried desperately to maintain confidence in the present Lord Advocate and his team. Today’s decision feels like police protection.

Before my brother was met by the very first two officers who handcuffed him he had no injuries. Soon after his body was covered from head to toe in injuries, including gashes and scratches all over his face, a broken rib and haemorrhages in his eyes – which is a sign of asphyxiation.

Despite the overwhelming evidence from before and since the original prosecution decision, the Lord Advocate and his team stand by their initial decision. It seems no lesson had been learnt from the Macpherson report and the introduction of the Race Relation Amended act 2000.

I say this again: if my brother Sheku Bayoh was restrained and died by civilians and not police officers, they would have automatically been treated as suspects. Why should police officers be above the law in a civilised society like Scotland.”

Deborah Coles, Director of INQUEST said: “The disproportionate use of force against black people by police, in the UK and internationally, is well documented. A robust response to deaths like Sheku’s is an essential part of meeting human rights requirements and is of significant public interest.

Sheku’s family have faced lies, denial and obfuscation since his death. Like too many bereaved families in Scotland, their struggle for truth, justice and accountability has been unnecessarily long and hard. This frustrates the key function of these processes to prevent future deaths.

This decision not to prosecute the police at an individual or corporate level is deeply disappointing and is based on a fundamentally flawed investigation. A public inquiry is now needed to ensure the circumstances of this death and broader issues around institutional racism, police restraint practices, and the Scottish systems for responding to deaths, are examined thoroughly.”

Aamer Anwar who represents the family said: “The Bayoh family feel totally betrayed by the Lord Advocate, for not holding power to account, for his broken promises, his betrayal of justice and failure to act in the public interest. Neither the family or the legal team accept the Crown’s reasoning for no criminal charges. The Lord Advocate has presided over a 4 and a half year investigation which was deeply flawed from the moment Sheku lost his life.

The family do not have the trust or belief that an FAI under the control of the Lord Advocate would have the remit or the courage to deal with serious public concerns, the wider issues of deaths in custody, use of restraint techniques, allegations of racism, lack of police accountability and the insufficient powers of the PIRC, nor will the findings of an FAI be binding on Police Scotland. We will accept nothing less than a public inquiry from the Scottish Government.”

ENDS

NOTES TO EDITORS
For further information please contact INQUEST Communications Team: 020 7263 1111 or [email protected] or Aamer Anwar Solicitors on 0141 429 7090 aameranwar.co.uk

The family is represented by INQUEST Lawyers Group members Aamer Anwar of Aamer Anwar & Co Solicitors. INQUEST has been working with the family and legal team, sharing expertise on deaths in custody, race and restraint from work on relevant cases in England and Wales.

INQUEST primarily works on cases in England and Wales. We are currently working on a two year project to build and share knowledge on post-death processes and experiences of bereaved families in Scotland.

BACKGROUND AND PROCESSES

Detailed timeline of key events available here.

Criminal Proceedings

• The initial investigation into Sheku’s death was carried out by the Police Investigations & Review Commissioner (PIRC) under the direction of the Lord Advocate. This organisation has a similar role in investigating deaths in custody to the Independent Office for Police Conduct in England and Wales.
• The PIRC investigated, submitting an interim, then final report to the Crown Office.
• The Crown Office considered the terms of those reports and carried out further investigations of its own.
• After these, in October 2018 a decision was made by Crown Counsel that no one should be prosecuted in connection with Mr Bayoh’s death. See media release.
• Victims of crime (in fatal cases, next of kin) are able to ask the Crown for a review of a prosecutorial decision. This is an internal review carried out by prosecutors within Crown Office. It is different from e.g. judicial review.
• Mr Bayoh’s family submitted a lengthy review document to the Crown in relation to the decision not to prosecute. Today’s decision follows this review.

A Fatal Accident Inquiry or Public Inquiry

• When someone dies in police custody in Scotland and no one is prosecuted it is required that there be an inquiry into the circumstances of the death. In Scotland this almost always take the form of a Fatal Accident Inquiry (FAI - the equivalent to an inquest in England and Wales) but can take the form of a public inquiry.
• The matters that can be considered by a public inquiry tend to be broader in nature than can be covered within the restrictive setting of a FAI.
• A FAI is initiated by the local Procurator Fiscal on behalf of the Crown, whereas a public inquiry can be established by Scottish Ministers or the UK Government.

Civil action against Police Scotland

• The family of Sheku Bayoh have also raised an action in the Court of Session against Police Scotland seeking damages. This is entirely separate from the above processes.
• The family allege that the attending police officers acted in breach of their own Standard Operating procedures and as a consequence used unlawful force against Sheku; that their actions escalated events beyond that which was necessary; and that they used unreasonable and disproportionate force to the threat posed.
• The family also allege that the manner of restraint deployed by the officers involved with Sheku was obviously dangerous and was not an approved method of restraint. They argue that the manner of restraint deployed by the officers caused or materially contributed to the death of the deceased.
• The family require to prove their case on the balance of probabilities. The outcome of a successful action of this type in the Court of Session is payment of damages.

Further information:

• Fresh questions over death in police custody, BBC Article, Dec 2018
• BBC Disclosure: Dead in Police Custody, Full documentary, Dec 2018
• Calls for inquiry after new CCTV of arrest emerges, Guardian Article, Dec 2018
• Sheku Bayoh lawyer plans civil action, BBC Article, January 2017
• Sheku Bayoh custody death officer 'hates black people', BBC Article, Oct 2015