Can Scotland fully investigate deaths in police custody?

According to the spokesman for Mr Bayoh’s family, Aamer Anwar, confidence in the PIRC investigation into Bayoh’s death in police custody is “waning day by day”.

The 31-year-old gas engineer died of suspected asphyxia on 3 May after being detained by several officers responding to reports Mr Bayoh had a knife.

The father of two, who was of Sierra Leonean heritage, had lived in Scotland since he was a child.

#blacklivesmatter

Bayoh’s death has become a focal point for those concerned about black deaths in custody in the UK, with his name trending on Twitter more than once, and online civil rights activists publicising his case under the hashtag #blacklivesmatter.

His funeral drew a crowd of hundreds of friends and sympathisers, including activists and well wishers from England, who later staged a sillent protest outside Kirkcaldy police station.

The investigation into his death is being carried out by the PIRC, which is Scotland’s equivalent of the Independent Police Complaints Commission (IPCC), which oversees police complaints in England and Wales.

However, unlike the IPCC, the PIRC does not have the power to compel officer witnesses to attend interviews.

Investigative delay

The officers involved in the incident that led to Bayoh’s death did not begin providing statements until four and a half weeks after the incident. Mr Anwar told Channel 4 News that they had only done so “because the family have fought every day to raise awareness and put pressure on them”.

He added: “If it was a member of the public they would be dragged to answer questions, but for some reason the PIRC do not have powers of arrest or powers of compulsion on providing evidence. The problem is the legislation.”

Jack Irvine, a media spokesperson for the Scottish Police Federation, and Peter Watson, the legal representative for the officers involved in the incident, told Channel 4 News that “none of the officers refused to cooperate in the investigation”.

The PIRC said they had been leading on the investigation and “since the hours following his [Sheku Bayoh] death on Sunday 3 May 2015 has made several attempts to secure statements from the arresting officers.

“Those officers now agreed to provide statements to the PIRC and now that PIRC is in the process of gathering the material, it will be considered along with the information already gathered throughout the course of the investigation to date”.

Insufficient powers

This apparent shortcoming in the powers to investigate has now become a focus of concern in the Scottish parliament, with MSPs demanding to know why the PIRC was set up with lesser powers than the IPCC. The PIRC was established in 2013 when Police Scotland was formed by the amalgamation of eight Scottish police forces.

The problem has apparently been compounded by the fact that in March 2015 Police Scotland, in an internal memo to its staff, is understood to have told officers that they should not provide operational statements to PIRC where there is the possibility of a criminal complaint. MSPs are concerned that this has also undermined the ability of PIRC to do its work.

Claire Baker MSP told Channel 4 News: “How can you carry out an investigation into a police incident without having any communication with the officers involved?”

Police Scotland declined to comment while the investigation into Bayoh’s death was ongoing.

Reform possible

However the Scottish government said last week it considered the current legislation sufficient to ensure robust investigations, but said “it would be inappropriate to comment further on the individual case at this time”.

Michael Matheson MSP, the cabinet secretary for Justice in the Scottish government, told the Scottish parliament on 9 June: “if any issues are highlighted following the investigation in question or any other investigation that is undertaken by PIRC, we will consider them at that point.

“To date, we have not received any representations from PIRC in relation to its powers.”

Although the law does not currently compel officers to give statements, the Scottish Human Rights Commission told Channel 4 News that “under the law the police are required to assist PIRC investigations” and state that “for an investigation to be effective, the cooperation requirement must be interpreted to include police giving statements when required to by the PIRC, consistent with human rights obligations”.