The Bayoh inquiry is at a crossroads – the Crown Office must decide

The National

4 hours ago

On May 3, 2015 in Kirkcaldy, Sheku Bayoh was restrained on the ground by six police officers. He died. In November 2019, Humza Yousaf announced a full judicial inquiry into the circumstances of Bayoh's death, including an investigation into what role, if any, race played in these events and their aftermath.
Lord Bracadale was appointed to lead the inquiry by the Scottish Government, with Angela Grahame KC as its main ­lawyer. Core participants were identified, ­including the Bayoh family, Police ­Scotland, the Crown Office, and the individual police ­officers involved in the incident giving rise to Bayoh's death. Remarkably, the Equality and Human Rights Commission declined to get involved in the most significant ­official investigation into race and policing in ­Scotland in decades.
To date, the inquiry has heard almost 125 days of evidence and legal argument over the better part of six years. Until Lord ­Bracadale recalled the participants to the oral hearing at Capital House this month, we thought the evidential parts of the ­Bayoh inquiry were basically over and awaited Bracadale's formal conclusions.
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Now, his investigation may be fatally compromised before a single conclusion has been published. Last week, lawyers for the Scottish Police Federation lodged a formal recusal application, arguing that the inquiry was tainted by apparent bias and that officers under investigation by it had 'lost confidence' in the independence of the chair.
It isn't unheard of for public inquiries to shed their chair before reaching ­conclusions and if this happens early enough in their progress, it need not fatally compromise their work. Because inquiry chairs tend to have grey hairs, human frailty being what it is can also have an impact, as age and illness catch up with very long-running ­inquiry processes.
Lady Poole did a bunk from the ­Scottish Covid inquiry for reasons still ­unexplained, leaving Lord Brailsford to step in. Child abuse inquiries across the UK have burned through a number of chairs during their long and painfully slow progress. But if Bracadale steps down in response to this pressure, it is ­difficult to see how the inquiry could meaningfully recover.
The Bayoh family's solicitor Aamer Anwar has described the move as an '11th hour,' 'desperate and pathetic attempt to sabotage the inquiry' by 'the Federation and those hanging on to their coat tails'.
But the legal arguments involved are serious and if Bracadale decides not to recuse himself, we can expect further litigation in judicial review at the Court of Session.
One of the tricky things here is the ­nature of public inquiries. Public ­inquiries aren't courts – though given the ­plantations of lawyers who have sat through the Bayoh inquiry hearings, you could be forgiven for mistaking them for one.
Unlike courts, core participants aren't free to choose what evidence they'd like to lead. The lawyers in the room can ­apply to the chair to ask questions of ­witnesses, but they don't have the ­absolute right to cross-examine as they or their clients might like. The process is inquisitorial, and counsel for the inquiry takes the lead. But like all public decision-makers, there's an overriding requirement for public inquiries to adopt a fair procedure.
What fairness requires depends on the circumstances, but one aspect of fairness deals with bias – actual or apparent.
Some biases are easy to identify. If one of the core participants is best friends with the inquiry chair, we have a ­problem. If the judge in charge is on the board of trustees of one of the organisations ­involved in the scrutiny, the fair-minded observer might have their doubts about their independence. Legally, the question is 'whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real ­possibility that the tribunal was biased' in the circumstances.
The case for Bracadale's recusal is based on a range of critical observations about how Bracadale and his lawyers have handled the investigation, but focus primarily on five private meetings they held with the Bayoh family and their legal representatives without any of the other core participants being present, aware of the meetings or given comprehensive ­information about what precisely was ­discussed.
'Mindful of how long the inquiry has lasted and the attendant effort and time that has been invested,' ­Scotland's ­prosecuting authorities have also ­concluded 'with great regret' that the ­inquiry appears biased in favour of ­Bayoh's surviving relatives.
While repeatedly stressing 'there is no basis for assuming anything other than good intentions on the part of the Chair,' the Crown Office and Procurator ­Fiscal Service (COPFS) told the judge they share the ­Police Federation's disquiet and have submitted supporting arguments, ­arguing that the inquiry has been actually ­biased in its language and approach to the ­evidence.
Explaining these meetings, the inquiry has stressed 'the engagement of the ­families with the inquiry is crucial to the effectiveness of the inquiry in ­fulfilling its terms of reference. If the inquiry failed to obtain and retain the confidence of the families its effectiveness would be ­prejudiced'.
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'Over the years from 2015, the families lost confidence in the various state institutions with which they had dealings – Police Scotland, the Police Investigations and Review Commissioner, and the Crown Office. There was a real prospect that they would not engage at all with the inquiry process or at some point would cease to engage with it,' they said.
For these aspirations, Bracadale is also criticised by the Crown Office, who maintains 'the fair-minded observer would question whether that was consistent with a stated intention to proceed in a way that was entirely impartial and independent of any person'. But their argument stretches a long way beyond this.
They suggest, for example, that the inquiry's approach to witnesses has tended to focus on evidence that met aspects of counsel's 'case theory' which 'usually appeared to align with the position of the family.' Cherry-picking, essentially, with a mind made up, determined to extract answers from witnesses that fit the theory rather than reflect a perhaps more muddled and messy reality. This ­suggestion stretches a good way beyond suggestions of apparent bias.
Reflecting on how some witnesses were examined, COPFS also complained that this 'case theory was at times pursued with notable vigour, creating the impression that the purpose was to validate rather than test the theory'.
The prosecuting authorities – ­themselves the subject of criticism in evidence before the inquiry, remember – don't set out what precisely they understand the inquiry's 'case theory' to be – so the ­innuendo reading of these complaints is all we're left with.
At least the Police Federation are more uncompromisingly direct about the legal consequences of their recusal application. They insist that comments from Bracadale – including suggestions he was 'profoundly moved' by Bayoh's sister's description of the impact of her brother's death on their family – 'suggest or create the appearance' that the inquiry has ­'pre-judged, or evinced a closed mind to, material issues' at stake, including the ­relative blameworthiness of the dead man.
Objection was also taken to a human impact video which opened the inquiry, with Roddy Dunlop KC suggesting that 'arranging and paying for a video tribute to the life of one core participant when it was known that other core participants did not accept the description of Mr ­Bayoh as the 'victim' is again problematic – all the more so when the chair had indicated in advance (privately) that this would 'be a very strong start to the hearings''.
Although the Crown Office stresses they aren't questioning the motives or ­intentions of the chair, their submission argues the ­inquiry's approach to the ­questioning of witnesses was actually biased and biased in favour of Bayoh's family – a remarkable allegation meriting much more critical comment than it has received.
If the Solicitor General is right, then as a matter of law, Bracadale must resign. If they are confident in their legal ­analysis, the Crown Office should say so. At the ­hearing last week, Scotland's ­prosecutors limply argued it was a 'matter for the ­inquiry' how to respond to their full-frontal ­attack on how the inquiry has discharged its ­duties investing this death in custody. Given the startling breadth of the Crown Office's attack on its work, this isn't legal politesse but pure cowardice.