Scotland’s police force and its prosecution authority have refused to give 12 police officers immunity from criminal charges in an inquiry into the death in custody of Sheku Bayoh.
Police Scotland’s deputy chief constable, Fiona Taylor, has told the judge chairing a public inquiry into Bayoh’s death in Kirkcaldy in May 2015 that officers are under a legal and professional duty to tell the truth, regardless of the risks of self-incrimination.
Lord Bracadale, the inquiry chair, had urged Police Scotland and the Crown Office to provide undertakings officers would not be prosecuted for any evidence they gave his inquiry, to ensure they gave “full, frank and uninhibited” testimony.
The officers involved, some of whom have since left the police, have consistently denied any wrongdoing and have not been prosecuted or disciplined over any aspect of Bayoh’s arrest.
In a letter to Bracadale released on Monday, Taylor said it would undermine public confidence and threaten the force’s commitment to root out racist or discriminatory views if any such undertaking were given.
“[Giving] full and frank testimony is the basic expectation we have of one another as police officers and the very least the public demands of us as their servants,” she said. “It is not transactional and should never be conditional.
“The chief constable has made it clear that racism or discrimination of any kind is deplorable and completely unacceptable; it should have no place in society and it has no place in policing.”
Ruth Charteris QC, the solicitor general, also rejected Bracadale’s request. “Prosecutors must consider all cases on their individual facts and circumstances and act in the public interest,” Charteris told Bracadale. “I have considered all the information available to me, and I am not currently satisfied that it is in the public interest to grant the undertakings.”
Charteris added that the Crown Office might consider immunity in a specific instance if there was a clear risk that failing to do so would prevent Bracadale from fulfilling the inquiry’s terms of reference.
But she added: “The crown has reserved its right to prosecute in all matters related to this case.”
Due to start in May, the public inquiry was set up by the then Scottish justice secretary, Humza Yousaf, in 2019 after intense public pressure and an outcry from Bayoh’s family over the Crown Office’s decision not to prosecute the officers involved or Police Scotland.
Bayoh, who was married and had two sons, died after being challenged by several police officers responding to allegations a black man had been seen in an agitated state carrying a bladed weapon. He was hit with batons, CS spray and pepper spray, and restrained on the pavement with wrist and leg ties.
No bladed weapon was found and there were accusations Bayoh had taken drugs that morning, which could have contributed to his death.
The inquiry’s terms of reference include an instruction to establish the cause of death and whether it was avoidable; whether police restraint training was at fault; whether the police’s actions “were affected by his actual or perceived race”; and events in the aftermath of his death, including securing evidence.
The Scottish Police Federation, which represents many of the officers giving evidence, has been asked for a response.