Police witnesses in the Sheku Bayoh inquiry could have their evidence used against them in potential future criminal prosecutions.
Undertakings were sought earlier this year by officers involved, backed by the Scottish Police Federation, that what they tell the inquiry cannot be used later.
They said their ability to give evidence to the inquiry into My Bayoh’s death and subsequent handling of its investigation could be hampered by the threat of potential legal action.
However, the Solicitor General for Scotland Ruth Charteris QC said she could not agree at this stage.
The Crown has reserved its right to prosecute in all matters related to the case.
The decision
After outlining her decision in a letter to inquiry chair Lord Bracadale, she said: “Prosecutors must consider all cases on their individual facts and circumstances and act in the public interest.
“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.
“It is not known if officers will invoke their right to claim privilege against self-incrimination.
“Nor is it known what impact any such claim would have on the totality of the evidence available to the inquiry.
“I will give individual consideration to any future request for an undertaking should it become clear that the inquiry will be prevented from fulfilling its terms of reference.”
Chair’s response
Lord Bracadale said: “I acknowledge the decisions of the Solicitor General and Deputy Chief Constable, published today, in respect of the request for undertakings.
“It is a matter entirely for the Solicitor General and Deputy Chief Constable whether or not to give the undertakings sought.
“I note that the Solicitor General has left open the possibility of revisiting the issue of whether to give undertakings on an individual basis to officers involved.
“Consequently, I will now seek statements from each of the officers to ascertain how much information they are willing to provide to the inquiry without undertakings from the Solicitor General.
“Once those statements have been obtained by my team, I will assess how best to proceed.”
Family reaction
The Bayoh family solicitor, Aamer Anwar stated: “No quarter should be given to any of the 12 officers or former officers, no guarantee, no offers of immunity.
“The family respect the decision of the Deputy Chief Constable Fiona Taylor not to grant such undertakings.
“Police Officers should never be granted any form of undertaking to give full and frank testimony, that is the very least the public expect of the police in any legal proceedings.
“For officers to seek conditions for giving evidence and to give in to such demands would be highly damaging to the integrity of the Police Service of Scotland and contrast with their claims to uphold the values of integrity, fairness, respect and human rights.
“On May 10th 2022, when the public inquiry begins, it will have been seven long years since the death of Sheku Bayoh.
“The Bayoh family appeal directly to those police officers, if you have nothing to hide then you have nothing to fear from coming to the Inquiry and giving full and frank evidence, that is the very least Sheku’s family are entitled to.”
30,000 pieces of evidence
The Deputy Secretary of the Scottish Police Federation David Kennedy said: “We will ensure we continues to provide professional legal advice and support to those whom we are representing.”
The inquiry is investigating the circumstances around 31-year-old Mr Bayoh’s death in custody on a Kirkcaldy street on May 3 2015 and the subsequent investigation.
It will also probe whether race played a part in his apprehension or later issues arising.
More than 30,000 pieces of evidence are currently being considered.
The first day of the hearing is scheduled for May 10 in Edinburgh.
