Scotland's solicitor general accuses Sheku Bayoh inquiry chair of ‘apparent bias'
The former judge leading a public inquiry into the death in custody of a black man has been accused of 'apparent bias' by Scotland's deputy chief prosecutor, throwing the hearing's future into doubt.
In an unprecedented intervention, Ruth Charteris KC, the solicitor general for Scotland, has sided with the Scottish Police Federation by calling for Lord Bracadale to resign as chair of the inquiry into the death of Sheku Bayoh.
Charteris and the SPF claim the high court judge unfairly held private meetings with Bayoh's family and allegedly gave them information not shared with the inquiry's other participants. Bracadale has rejected the claims.
Their criticisms, which have been rejected by Jason Beer KC, one of the UK's most senior lawyers, who is acting for the inquiry, could have a significant impact on public inquiries across the UK.
The Bayoh family described it as a 'desperate and pathetic attempt to sabotage the inquiry' because the police and prosecution fear being heavily criticised and accused of racism, and wanted to avoid being held accountable. They said they feared this tactic would be used again by public authorities who faced censure in other public inquiries.
Bayoh died in May 2015 after being forcibly detained by six officers using incapacitant sprays and batons when they responded to reports of a man seen brandishing a bladed weapon and behaving erratically in Kirkcaldy, Fife.
A postmortem examination found Bayoh had 23 injuries and numerous haemorrhages in his eyes consistent with being crushed during his arrest or the attempts to resuscitate him. The police allege he was violent and intoxicated.
The public inquiry, which has cost around £50m and heard 221 days of evidence, is investigating allegations of unjustified force and racism by the officers involved, and why there was no prosecution of the officers or Police Scotland over Bayoh's death.
The SPF's lawyer, Roddy Dunlop KC, has told Bracadale the federation and two of the officers involved in Bayoh's arrest 'have regrettably lost confidence' in him. Overall, 12 participants in the inquiry believed he should step down, Dunlop said.
'They are concerned that they can no longer be seen to be receiving a fair hearing, and that apparent bias has arisen,' Dunlop said in a written request for the judge to step down.
The SPF's allegations have been rejected by Police Scotland's chief constable, Jo Farrell. While the issues raised by the federration's challenge needed explanation, as did the inquiry's handling of evidence about police training, Farrell said she 'has a strong preference for the inquiry to continue'.
In his submission on the SPF and solicitor general's applications, Bracadale stressed he would only make a decision on his future after hearing oral arguments, but said none of the criticisms had been levelled until now.
He said it was in the public interest for the inquiry to ensure the family had confidence in the process. 'There would be a significant impact on the credibility of the inquiry's ability to fulfil the aspect of the terms of reference relating to race if the predominantly black next of kin of Sheku Bayoh were not participating in the inquiry,' he said.
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In an oral hearing on Thursday, Dunlop said there was 'patent' evidence from the minutes of Bracadale's meetings with the family of his 'unconscious bias' in favour of the family, partly because he described their testimony as 'powerful'. Dunlop said the judge showed an 'alarming' habit of mirroring the prejudicial language used by Aamer Anwar, the Bayoh family's lawyer.
Charteris referred to 'apparent bias' numerous times in her submission and said meeting the family so often raised questions about Bracadale being 'entirely impartial and independent of any person'. She added that it was a 'matter of profound regret' the former judge was in this situation.
Beer, who is lead counsel in the Post Office Horizon public inquiry, accused the federation and Charteris of making a series of factually incorrect arguments and had recommended Bracadale stay in post.
In his 50-page submission, Beer said public inquiry judges routinely met bereaved families, including in the Covid and Southport inquiries. Crucially, there was no evidence of actual misconduct by Bracadale set out in any submission calling for him to stand down.
Beer said Dunlop's claim that Bayoh's family had unfairly been given access to inquiry documents were incorrect, because the same material was given to the other participants the following day.
He added that Dunlop's arguments fundamentally misunderstood the purpose and processes of a public inquiry, which was inquisitorial and not like a normal criminal trial. Bayoh's lawyers argue that human rights law underpins those principles.
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