The chairman of the Sheku Bayoh Inquiry wrote to grieving relatives to say he was “humbled and honoured” to hear their experiences – prompting calls for him to step down over concerns of bias following five meetings described as “secret”, the inquiry has heard.
Sheku Bayoh, 31, a father-of-two, died after he was restrained by around six police officers who were called to Hayfield Road in Kirkcaldy, Fife, on May 3, 2015.
The Crown Office decided not to take legal action against the police involved following an investigation, but the circumstances are being examined at the inquiry.
A procedural hearing on Thursday and Friday was ordered by chairman Lord Bracadale to consider an application for his own recusal, after he revealed he has met with the family of Mr Bayoh on five occasions since the inquiry began.
The hearing follows an application for recusal of the chairman and an assessor on behalf of the Scottish Police Federation, Pc Craig Walker and former officer Nicole Short, represented by Roddy Dunlop KC, Dean of the Faculty of Advocates.
Recusal is the legal process by which a judge or other adjudicator steps aside from participating in a case due to potential bias, conflict of interest, or lack of impartiality.
Mr Dunlop told the hearing on Thursday that Lord Bracadale had written he was “humbled and honoured” to hear the family’s experiences, and that the chairman had identified two instances of “inappropriate” comments, including by the family’s solicitor, Aamer Anwar.
The inquiry heard a relative made a comment that the arrest “should never have happened”, according to Mr Dunlop, while in another meeting it was alleged the family “are the victims”, which was rejected by Mr Dunlop who said there was a serious factual dispute at the centre of the inquiry.
The meetings occurred on November 4, 2021; April 13, 2022; November 21, 2022; January 18, 2024; and December 5, 2024.
Mr Dunlop said: “There is an acute dispute into who is the villain in this piece.”
He said the family had portrayed Mr Bayoh as “Scotland’s George Floyd”, but added: “This is a man who was intoxicated and armed with a knife.”
Mr Dunlop said: “If I had approached Your Lordship and said, Nicole Short wants to tell you in private how devastating was the illegal assault perpetrated upon her by Mr Bayoh, which ended her career with the police, Your Lordship would have instantly dismissed me, and quite rightly, he would have been entitled to raise a complaint as to my conduct.”
He said “threats to withdraw from the process will never be an excuse”.
Lord Bracadale has defended his meetings with the family.
In a statement published on the inquiry website on Thursday, he said: “Given the fragility of the confidence of the families in the inquiry at various stages, I consider that meeting them on an annual basis did contribute to obtaining and retaining their confidence in the inquiry and securing their evidence.
“I consider that, if I had not had meetings with them, there is a high probability that they would have stopped participating and would have walked out of the inquiry.”
At the hearing, Dan Byrne KC, representing three officers involved in the inquiry, said they had told him on Wednesday: “The chair has no idea who we are, we are just white officers.”
He told the inquiry “repeated private, secret meetings with one party, behind the back of the others”, did not comply with a statutory requirement to act fairly, and said: “Justice has not been seen to be done”, describing it as “grievous procedural inequality”.
Mr Byrne said: “The treatment they say is a parallel to George Floyd, by convicted murderer Derek Chauvin. That’s clear from the campaign.
“The purpose of influence is the prosecution of the officers… the advocacy is explicit and implicit.
“The officers do not have a campaign group, they do not have access to the media or senior judges. In my submission the meetings were private, they were not transparent, there was no disclosure. The officers simply would not have had these chances.
“In the central dispute, the family have now had considerable advantage.
“The chair knows them personally; but no-one knows the officers, their families, their values, they have a great deal to lose.”
Mark Stewart KC, representing ex-police officer Alan Paton, alleged his client had been “singled out” for allegations of racism, and had retired early due to ill health, describing the impact of the inquiry on his mental health as “catastrophic”.
Alastair Duncan KC, representing the Solicitor General, said there were “contents and circumstances of the meetings which I would consider problematic”, but the Crown Office and Solicitor General Ruth Charteris KC do not support calls for recusal.
However, Mr Duncan said: “When the inquiry was asked for an explanation of the meetings, it provided an explanation in March this year, but it’s very difficult to square with the minutes disclosed.”
Mark Moir KC, representing the Coalition for Racial Equality and Rights, said “there will be no winners or losers in a public inquiry”, and that it is “a relatively common feature of a public inquiry” for the chair to meet families involved, as he rejected calls for Lord Bracadale to step down.
Acting for the family, Claire Mitchell KC said chairs of other inquiries, including the Victoria Climbie Inquiry, the Grenfell Tower Inquiry, the Stephen Lawrence Inquiry, and both Covid-19 Inquiries, had met with families involved.
She said: “Chairs meet with family members on a regular basis and that is something which has been endorsed.”
Ms Mitchell said no other core participants had the Article 2 considerations and believing “all participants must be treated equally is wrong”, as the inquiry “has duties in regard to the family which it does not have to others”.
She said: “No other core participant has lost a loved one in police custody.”
The two-day hearing is estimated by Mr Anwar to “have cost in the region of £2 million”.
Representing the inquiry, Jason Beer KC said: “Can I turn to the approach taken in other inquiries, to the approach they have taken to meeting with families.
“Although doubtless other examples could be identified, the following inquiries are of note. The Nottingham Inquiry, the Omagh Bombing Inquiry, the Southport Inquiry, the Lampard Inquiry.”
He added: “There were many other core participants affected by other inquiries – the health service, the police and individual police officers in the Nottingham Inquiry. They did not get to know what had gone on in private meetings.
“The police service, individual police officers, the education service, in the Southport Inquiry. It’s wrong to view this through the lens of whether the person who died and their relatives may or may not be blameworthy.
“One group of people are being seen by the chair, the rest of them are not.”
Lord Bracadale said: “I shall take time to consider the submissions and I will return in due course.”
Speaking outside the inquiry, Mr Anwar said the family are entitled to a “robust and thorough investigation, answering the questions the family are legally entitled answers to”.
He said: “These meetings of the families with the chair cannot be categorised as secret meetings with the family – they were referred to by the chair in hearings, he also expressed his condolences to the family reminding all parties that they are at the heart of the inquiry.”
