Watchdog did not consider racist language in Sheku Bayoh investigation

NEITHER Scotland’s police watchdog or Crown officials investigating the Sheku Bayoh case considered the role racist language used by police – or perceptions he may have been a terrorist – could have played in his death, it has emerged.

Senior officials for the Police Independent Review Commissioner (PIRC) and Crown Office and Procurator Fiscal Service (Crown), giving evidence to the Sheku Bayoh Inquiry, admitted the bodies had not done so despite human rights law stating authorities must consider the role racial prejudice may have played in a death in custody.

One Crown official said it could “possibly” be “reasonable” for officers to assume Bayoh was a terrorist “because and only because” of the colour of his skin. She was also questioned about her use of the term “the race card” in case notes but said she was unaware of its pejorative use.

Bayoh died in police custody in Fife in 2015, after being restrained by up to six officers. Police also used pepper spray and batons. They were called to the scene after Bayoh was seen by locals with a large kitchen knife. A post-mortem found the cause of his sudden death was due to “intoxication by MDMA (ecstasy) and alpha-PVP whilst being restrained”.

The revelations are explored in the latest episode of The Ferret’s multi-award-nominated podcast, which has followed the evidence heard since the Sheku Bayoh Inquiry started in May 2022. It covers hearings about investigations by the police watchdog and the Crown.

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For an investigation into a police custody death to be compliant with human rights law, its conclusions must be based on objective and impartial analysis of all relevant elements. The victim’s family must be involved, it must be open to public scrutiny and carried out promptly. It must also consider potential racist motives.

Concerns about independence have been raised by Bayoh family lawyer Aamer Anwar, who described the relationship between Police Scotland, the police watchdog PIRC and the Crown as an “unholy trinity”.

PIRC was instructed by the Crown to start its investigation less than an hour after Bayoh’s death, initially running that probe in parallel with a Police Scotland investigation. PIRC took over completely after two days and filed its final report to the Crown in 2016.

However, the inquiry heard evidence about issues that could compromise PIRC’s independence from the police.

It was revealed that four of the six officers from the watchdog who arrived to investigate the police’s role in Sheku’s death were former Strathclyde Police officers. Meanwhile, some of the most senior officers working on Police Scotland’s investigation into Bayoh’s death in Fife had also previously worked for the Strathclyde force, the inquiry heard.

One PIRC officer alleged Police Scotland senior investigator, Pat Campbell, described the police watchdog team’s arrival as “a Strathclyde Police reunion”.

A report in the Sunday Herald from September that year found almost three-quarters of the PIRC was made up of former police officers.

In 2013, Westminster’s Home Affairs Select Committee had recommended a maximum of 20% of investigators at the Independent Police Complaints Commission – the PIRC equivalent for England and Wales – should be ex-police.

The inquiry heard that on the day after Sheku’s death another former Strathclyde officer, William Little, took over the PIRC investigation. His former boss, now-retired assistant chief constable (ACC) Ruaraidh Nicolson, was one of the most senior cops on the Fife police investigation. ACC Nicolson had provided Little with a reference for his PIRC job.

Later that week, John McSporran started leading the investigation, with Little acting as deputy. McSporran had also previously worked for Strathclyde Police and was line-managed by ACC Nicholson for six months.

Under McSporran’s watch, PIRC produced an “interim report” of 304 pages by August 2015 but it contained no reference to race, racism or racial discrimination.

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LES Brown, head of the Crown’s Complaints Against the Police Division (CAPD) – formerly managed by Kate Frame until she became the Police Investigations and Review Commissioner – told the inquiry he had thought it “inconceivable” that race wouldn’t be considered relevant.

“The instruction was to investigate the circumstances of the death of Mr Bayoh and it’s implicit in that – in my view – that it is an effective investigation that has to consider all relevant aspects,” he told the inquiry.

However, McSporran insisted that the Crown’s instructions had not specified the issue of race should be specifically considered. After receiving more specific instruction from the Crown, the investigation started to look specifically at potential racial motivations of officers.

The PIRC team looked into a WhatsApp group chat involving Fife police officers. Messages shared were found to be full of racial slurs.

A PIRC report published last week on the inquiry website details a photograph of one officer posing with a Gollywog toy, which is referred to as “the animal”, and language used includes the terms “p*ki” and “Black bastard”. Some officers were dismissed following an investigation.

The watchdog conducted “extensive searches” but found no link between these officers and the nine who attended Hayfield Road.

PIRC also looked at discriminatory behaviour allegations, including racism, and found those in Fife were in line with the national average.

However, under questioning, John McSporran admitted that he had “overlooked” the use of terms such as “coloured” in the officers’ own statements as well as the link that several of the officers made between being called to attend a knife incident involving a black man and terrorism.

In their statements, several of the officers claimed that they immediately thought of Lee Rigby, the British soldier murdered by Islamic extremists in 2013.

McSporran said the “error” was made because the team was over-stretched, in part due to the M9 crash six weeks later.

McSporran told the inquiry: “We had information overload in the first several weeks of these matters. Did we immediately pick that up? I think the potential answer to your question is we failed to spot that, and that was an error … on my part. Potentially, I should have done more there, and I apologise.”

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After PIRC’s report was received by the Crown, it took more than two years before the family was told of its decision not to prosecute the officers who had restrained Bayoh.

Fiona Carnan, the Procurator Fiscal who did the analysis for the Crown’s report, was asked about whether she considered race and racial discrimination. But she, and her boss, Les Brown, insisted that the Crown’s policy was to take an “incremental approach”, assessing if there was potential criminality before then turning to the matter of race.

As it was found that there was no case of criminality to answer, issues of race would have been considered at a fatal accident inquiry, Brown and Carnan told the inquiry. Instead, a public inquiry was held.

Carnan said she therefore did not consider whether officers would have made the same assumption if Bayoh was white, or if they thought it might be terrorism every time they got a knife call.

She was asked: “But if an officer thought this was a terrorist incident because and only because of the colour of Mr Bayoh’s skin, would that be reasonable?” She answered “possibly”, claiming this was “because of their experience about what terrorist incidents are taking place previously, such as Lee Rigby”.

She was also asked about her use of the phrase “the race card” in her notebook. She denied being aware of “any pejorative or negative connotations” to the phrase and said she understood it to mean “they are raising the question of race”.

Anwar told The Ferret: “For the family, the inquiry has exposed the Crown as repeatedly failing to take human rights legislation into consideration. It raises serious questions – how do you ensure that they are compliant and what happens when they are not? In this case, it’s being highlighted by an inquiry but so often that remains unseen.

“All three of these institutions – the police, the PIRC and the Crown, have operated in an unholy trinity of cover-up, incompetence and institutional racism – totally failing the Bayoh family. But what about the families whose concerns are not heard at an inquiry and who we will never know about?”

The inquiry also heard that in 2015, PIRC had been instructed by the Crown Office to investigate police computer trawls made by officers on Anwar.

In a 2016 report published on the inquiry’s website last week, PIRC revealed some information held on Anwar was labelled “counter-terrorism intelligence” though “there did not appear to be a legitimate reason or explanation for these practices”.

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PIRC found a “significant number” of Police Scotland staff and officers did not record reasons for these searches of police systems. It concluded that material provided by Police Scotland suggested there “may be widespread non-compliance” with police policies and breaches of the Data Protection Act.

In response Anwar said: “The revelations about the intelligence that’s been gathered on me are pretty horrific. I’ve been shocked to be subjected to surveillance by various parties when I am just doing my job.

“This is what they tried to do to a Black family, and also to their lawyer who happens to be a person of colour. We were accused of being paranoid – we were nothing of the sort.”

Anti-racism campaigner and commentator, Talat Yaqoob said it was “no surprise” that “race, racism and human rights” were not fully considered by the Crown or PIRC.

“If this had been the case, we would not be in need of this inquiry and Sheku Bayoh’s family would not still be without justice nine years later,” she added.

A Police Scotland spokesperson said: “It is vital that the role and independence of the public inquiry is respected to ensure the application of the rule of law, due process, and justice being served. Police Scotland will continue to participate fully in an open and transparent manner.”

A spokesperson for COPFS added: “Day in and day out, Scotland’s prosecutors fulfil their responsibilities with professionalism and skill. They take hard decisions and do so independently, rigorously and in accordance with the evidence.

“The Crown Office and Procurator Fiscal Service is fully supportive of the inquiry and does not consider it appropriate to comment on the evidence led at the inquiry while it is ongoing.”

PIRC also said it would be “inappropriate” to comment while proceedings were ongoing.

You can listen to the first seven episodes of The Ferret’s Sheku Bayoh: The Inquiry podcast at theferret.scot or wherever you get your podcasts. The inquiry continues on Tuesday, June 4 and episode eight will be published then. 

The Ferret is an editorially independent, not-for-profit co-operative run by its journalists and subscribers. You can find it at https://theferret.scot/ and can subscribe for £5 a month here: https://theferret.scot/subscribe/