On 21 March the Scottish Government announced the terms of reference for the public inquiry into the circumstances surrounding the death of Sheku Bayoh. It remains to be seen whether Sheku Bayoh’s family will finally obtain justice.

Bayoh died in Kirkcaldy on 3 May 2015 after being restrained by police using CS spray, pepper spray and batons. The Lord Advocate announced in 2018 that no police officers were to be prosecuted and re-affirmed this decision on 11 November 2019, after the Crown Office had completed a review of its own earlier decision. The following day, Justice Secretary Humza Yousaf announced in the Scottish Parliament that a public inquiry would be set up. He announced in January that the inquiry would be headed by retired judge Lord Bracadale.

The public inquiry is being set up under the Inquiries Act 2005. It will cover the matters that would have been covered by a Fatal Accident Inquiry (FAI), plus some matters that are beyond the remit of an FAI. An FAI is mandatory for all deaths in police custody, but the requirement may be waived if the Lord Advocate considers that the circumstances of death have been sufficiently established by other proceedings, such as criminal proceedings or a public inquiry.

Closely fought contest

In announcing the public inquiry,  Humza Yousaf said he would: “discuss the draft terms of reference with those most directly affected by the inquiry.” The terms of reference that were finally announced hint at a closely fought contest. They have been welcomed by Sheku Bayoh’s family [the terms of reference are set out at the end of this article].

As expected, part of the remit of the inquiry is “to establish the extent (if any) to which the events leading up to and following Mr Bayoh’s death, in particular the actions of the officers involved, were affected by his actual or perceived race.” One of the officers involved in the restraint of Sheku Bayoh is alleged to have a history of expressing blatantly racist views. More broadly, the inquiry provides an opportunity to address the issue of institutional racism in the police force. That task is at least twenty years overdue.

The publication in 1999 of the Macpherson report into the murder of Stephen Lawrence triggered a flurry of activity in Scotland. The Scottish Government set up a steering group, chaired by the Justice Minister, on the implementation of the report. ACPOS (the now-defunct Association of Chief Police Officers in Scotland) set up a team to look into race relations. A report on “Police Stop and Search Among White and Minority Ethnic Young People in Scotland” was commissioned from Reid Howie Associates and published in November 2001. HMIC Scotland carried out an inspection of police race relations, published as the report “Without Prejudice?” in December 2000 and a further inspection, published as “Pride and Prejudice” in June 2003.

From 2001 onwards¹, official interest in improving police race relations has co-existed with intensified policing of some BAME communities in the name of preventing “terrorism” and “extremism.” There has been a marked increase in cultural awareness amongst police officers, either in pursuit of improved race relations or enhanced intelligence-gathering capacity, or a deeply-conflicted blend of both. There has also been a steady interest in diversifying the police force. The outcome of this is that by the end of March 2018 (the most recent figures available, published in Equality & Diversity Mainstreaming & Outcomes Progress Report, 2017-2019) just 1% of Scottish police officers considered themselves to be from an ethnic minority and less than 1% of promoted officers identified themselves in that way.

unfinished business from the 1990s

Despite the increased emphasis on equalities in official police discourse since the 1990s, it remains the case that allegations of police racism are likely to be regarded as mischievous and as indicative of an anti-police attitude. In all these circumstances it would be unsurprising if various manifestations of racism – from institutional racism through to hardcore individual racism – were to persist.

If the public inquiry results in Police Scotland – and maybe Scottish society more widely – making progress on unfinished business from the 1990s that will be very welcome, though hardly a cause for celebration. But will it result in justice for Sheku Bayoh and his family?

The first obstacle is the word “justice” doesn’t feature anywhere in the terms of reference. The public inquiry has a much wider scope than a fatal accident inquiry (FAI), but it has been built around the FAI framework and suffers from the the implicit assumption that an FAI is what it says on the tin – an inquiry into an “accident.” So instead of justice, the terms of reference emphasise recommendations that might prevent other deaths in similar circumstances. Of course it is right that the inquiry should make such recommendations. But they must be a corollary to justice, not a substitute for it.

FAIs are not in fact just inquiries into accidents. The full title of  the legislation under which FAIs are held is the “Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act.” FAIs are the fora used in Scotland to deal with deaths that have not been adequately explained. They do the job done in England, Wales and Northern Ireland by inquests. But an FAI operates in quite a different way to an inquest. An inquest is required in England and Wales if a death is violent or unnatural, if it occurs in custody, if it is sudden or from an unknown cause, or if suicide is suspected. An FAI is mandatory in Scotland only for deaths that have occurred in custody or at work. Even in these circumstances, the requirement for an FAI may be waived if the Lord Advocate  believes that the circumstances of the death have been adequately established through criminal proceedings.

An inquest in England, Wales and Northern Ireland is conducted by a coroner, who may summon a jury and must do so in a variety of circumstances including custody deaths or any death where police are involved. An FAI in Scotland  is conducted by a sheriff sitting without a jury. The conclusions of an inquest in England and Wales generally involve categorisation of the death, for example as “natural causes”, “misadventure” or “unlawful killing”, though it is no longer mandatory to do so. The categorised conclusion was formerly called a verdict, and is often still so described. An FAI does not produce anything like a “verdict”. Instead, the Sheriff is required to produce a determination covering the time, place and cause of death, precautions that might have resulted in the death being avoided, defects in the system of working that may have contributed to the death, and any other relevant facts. It is a template built around accidents, rather than deaths in suspicious or unexplained circumstances.

sparing institutional blushes

When the public inquiry was announced last November Aamer Anwar, the lawyer representing Sheku Bayoh’s family, said on their behalf:

“the Inquiry must identify each and every individual and organisation who must bear responsibility and accountability for this tragedy and the mishandling of the aftermath”.

This could not be done at an FAI. FAIs are built on the principle that they do not apportion blame. The public inquiry is perhaps not completely precluded from doing so, but it would sit awkwardly with its remit to “examine the post-incident management process and the investigation up to, but not including, the making by the Lord Advocate of the prosecutorial decision [ie the decision not to prosecute any police officers] communicated to the family of Sheku Bayoh on 3 October 2018.”

A straightforward way for the public inquiry to approach the issue of culpability without treading too heavily on the toes of the criminal justice system would have been for the terms of reference to have included a requirement to determine whether, on the balance of probability, Sheku Bayoh’s death was lawful. But that would be a departure from the procedure followed by FAIs and might be interpreted as building into the DNA of the inquiry a presumption that the FAI system is inadequate. That would would be embarrassing, because the system was subject to a review by Lord Cullen in 2009 which led, via further consultations, to fresh legislation being passed by the Scottish Parliament in December 2016 (the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act), nineteen months after Sheku Bayoh died. It isn’t the job of a public inquiry to spare institutional and political blushes – quite the reverse. But the risk of blushes spanning the Scottish legal establishment and all political parties is a formidable barrier to surmount.

For the moment, the only official decision that might be seen as relating to the lawfulness of Sheku Bayoh’s death is the decision by the Lord Advocate not to prosecute any police officers. But that decision was taken behind closed doors on the basis of evidence that has not been made public. The lawfulness or otherwise of Sheku Bayoh’s death would in any case only have been one of the factors potentially influencing the decision.

the most basic human right of all

The terms of reference for the public inquiry include a key that could be used to unlock the puzzle. They require the inquiry to “examine the post-incident management process and the investigation” for, amongst other things, “compliance with any relevant Convention rights.” The Convention means the European Convention on Human Rights. Foremost amongst the rights engaged by the investigation is Article 2 of the Convention – the right to life.

Article 2 is the first substantive right set out in the Convention. That is not an accident. The right to life is the most basic human right of all. Without it, all other rights dissolve into emptiness.

Article 2 states that “Everyone’s right to life shall be protected by law” and that “No one shall be deprived of his life intentionally.” Exceptions are provided for, but only where “absolutely necessary” – a sterner test than under many other provisions of the Convention. The requirement for the right to life to be protected by law creates a requirement for laws against violent acts that amount to a threat to life, and for laws dealing with other practices that threaten life, such as unsafe practices in the workplace.

The substantive elements of Article 2 are clearly engaged by the events leading to Sheku Bayoh’s death. The remit of the public inquiry does not refer to Convention rights in connection with these events, but only in connection with the post-incident investigation. This engages a different aspect of Article 2.

The European Court of Human Rights has since 1995² interpreted the right to life as carrying with it a procedural requirement that states must conduct an investigation into any killing by State agents. The form taken by such an investigation depends on the legal system of the state concerned. In a 2001 judgment (Kelly and Others v. the United Kingdom) concerning the 1987 killing by the SAS of eight IRA members and a bystander in Northern Ireland, the Court said:

“The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.”

The judgment set out some of the requirements for such an investigation. In particular, it said:

“The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible.”

It also said that the state authorities must act themselves; they cannot leave it to the next of kin to take responsibility for the conduct of the investigation. They must take reasonable steps to secure the evidence. Any deficiency which undermines the investigation’s ability to establish the cause of death or the person responsible will risk falling foul of the required standard. And there must be a sufficient level of public scrutiny to secure accountability.

An inquest into the killings was held in Northern Ireland in 1995. Inquests there were not able to return a “verdict” along the lines of the “verdicts” (eg unlawful killing) available to inquests in England and Wales. The Court found that the procedural requirement of Article 2 had been violated because of this, and also because there had been a delay of several years in holding the inquest, because there had been no explanation as to why no one had been prosecuted over the killings, because the soldiers involved in the killings were not required to attend the inquest as witnesses, and because witness statements were not made available to the families prior to the inquest.

something more than “FAI Plus”

It is fairly clear that the investigations so far conducted into the death of Sheku Bayoh have not met the requirements set out in the judgment. And it seems fairly clear that an FAI would also fail. It remains to be seen whether the public inquiry will succeed. It will be hampered by the passage of time and the inadequate evidence-gathering in the crucial early days of the investigation. Even if it can navigate these difficulties, it will fail unless Lord Bracadale is able to interpret his remit as something more than “FAI Plus.”

Since the public inquiry is itself part of the investigation, it is required by its remit to examine its own compliance with the Convention. It would be odd if it were to do this in a purely self-critical spirit without seeking, as far as it lies within its power, to remedy any defects. This might lead it to examine the circumstances of Sheku Bayoh’s death in the light of Convention rights, despite the absence of any specific requirement to do so.

The public inquiry should at the very least aspire towards compliance with the Convention. That means, amongst other things, that it should, if necessary, use its power under the Inquiries Act 2005 to compel witnesses to attend hearings, including police officers present during the restraint of Sheku Bayoh, police officers involved in the subsequent case management and investigation, senior officers in the relevant chains of command, including former Chief Constable Stephen House, and officers with background information relevant to the inquiry.

The public inquiry’s remit is possibly – just possibly – wide enough to open a pathway to justice. But the path will be thorny and Lord Bracadale will need boldness and determination to traverse it. If, on the other hand, he wants to tread lightly on establishment sensibilities and heavily on the grave of Sheku Bayoh, the remit provides a road-map for that too.

All he needs to do is narrate the circumstances of Sheku Bayoh’s death without apportioning blame or determining whether it was lawful, follow in the footsteps of Lord Cullen’s 2009 review of Fatal Accident Inquiries by name-checking Article 2 of the European Convention on Human Rights without any substantial reference to the case-law surrounding it, and then make some remarks about institutional racism in Police Scotland that are sharp enough to elicit support from progressive people and outrage from reactionaries. The media will do the rest.

It is critically important to the success of the inquiry that it properly investigates the part that racism played in the death of Sheku Bayoh. But that must not be used as a firework display to distract from the failure of Scotland’s legal system to meet its obligations under Article 2.

Aamer Anwar has described the terms of reference of the public inquiry as “unprecedented.” He’s right. But precedent sets a very low bar in matters relating to custody deaths in the UK, or substantive legal reform in Scotland.

More Information

• Justice for Sheku Bayoh – the launch of the Justice for Sheku Bayoh Campaign, 25 July 2015 (report and videos)
• ‘Serious allegations of criminality with regard to certain police officers’ – statement by Aamer Anwar after meeting with Chief Constable Stephen House, 7 September 2015
• SACC calls for public inquiry into Sheku Bayoh’s death, press release 2 October 2018
• Statement by Aamer Anwar on the Lord Advocate’s decision not to charge police over Sheku Bayoh’s death, 3 October 2018
• Public Inquiry into the death of Sheku Bayoh – final terms of reference – press release from Aamer Anwar, 21 May 2020

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1. and especially since the end of 2002, when in the run-up to the Iraq war nine Algerian men were arrested in Scotland on terrorism charges that turned out to be unfounded. All the charges were dropped in December 2003. ↩
2. In the case of Mccann and others v The United Kingdom, over the shooting by the SAS of four Provisional IRA members in Gibralter in 1988 ↩