Before I continue, it is necessary to give a little background. Scotland is a separate jurisdiction from England and Wales. Its separate regional police forces were unified into Police Scotland (in full, the Police Service of Scotland or Seirbheis Phoilis na h-Alba) in 2013. Complaints and deaths in custody are investigated by the (supposedly) independent Police Investigations and Review Commissioner (PIRC). They report to the Crown Office and Procurator Fiscal Service which is headed by the chief law officer in Scotland; the Lord Advocate, Frank Mulholland. Unlike its counterpart in England, the Independent Police Complaints Commission, the majority of the PIRC's investigators are ex-police officers.



The "Petite" Policewoman

Within days of Bayoh’s death, the federation’s lawyer Peter Watson claimed Bayoh had chased “a petite female police officer” and subjected her to an “unprovoked attack by a very large man who punched, kicked and stamped on her. The officer believed she was about to be murdered and I can say that but for the intervention of the other officers that was the likely outcome.” Anwar [the family's lawyer] said there was no evidence for this: the PIRC has said instead that the officer went to a local hospital with Bayoh for a checkup, and was discharged shortly afterwards.

Nicole Short was due to face trial at Kirkcaldy Sheriff Court next month accused of illegally accessing information on the police computer in 2012. She was one of several officers involved in a struggle in the street with Sheku, 31, before his death. His family fear he died of asphyxiation after being held down. The Police Federation say Short suffered “significant” injuries during the struggle with Sheku in Kirkcaldy on May 3 this year. She faces three data protection charges and a pre-trial hearing was due to be held next week. But her lawyer Ross Cameron told the court: “She is not fit for trial due to a complicated medical state following on from an incident in Kirkcaldy. She maintains her plea of not guilty.” Prosecutors did not oppose the defence motion to postpone the trial. It will now start on December 21.

Refusing to Co-operate With Delayed Investigation

After lawyers acting for the nine officers suggested there had been no delay in giving statements, the PIRC released a statement on June 4 – 32 days after Mr Bayoh’s death – stating: “Since the hours following his death the PIRC has made several attempts to secure statements from the arresting officers. “Those officers have now agreed to provide statements to the PIRC and now that the 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.”

Mr Anwar also called for answers about why Mr Bayoh was apparently viewed as a "terrorist threat" by some police officers. He said: "The family of Sheku Bayoh want Chief Constable Stephen House to explain why his police officers believed that they were dealing with a terrorist threat and whether that had any role in Sheku Bayoh's subsequent treatment."

"Officer A" - The Violent Alleged Racist

CCTV evidence seen by the family shows Mr Bayoh approaching the police at about 07:20. The BBC understands the pictures show that he did not have a knife. At least two officers, including PC Paton, who until now has only been known as officer A, said that they believed they could be facing a terrorist incident. At least four and up to six officers, including PC Paton, were immediately involved in the encounter. CS spray and police batons were used and within about 30 seconds, Mr Bayoh was brought to the ground, face down. Handcuffs and leg restraints were applied. PC Paton and a colleague known as officer B, who were two of the first on the scene, were understood to have a combined weight of about 43 stones [600 pounds] Eyewitness reports suggested that officers were kneeling and lying on Mr Bayoh in order to restrain him.

One of the major claims justifying the violence involved in the arrest was the claim by the police "union", the Scottish Police Federeation, that a policewoman was " in fear of her life " however they apparently were not so serious as to require hospital treatment at the time They were however sufficiently serious for them to be claimed to be the reason for her not appearing at her own trial You might consider her reported injuries to be highly suspicious and rather convenient in view of her being due to stand trial, I couldn't possibly comment.Procedures in Scotland are significantly different from those in England. In this case, the officers were not separated and interviewed immediately by the PIRC. This obviously leads to suspicions that they were able to get together to agree a story. Also unlike in England, they are not required to give evidence to the investigators if they might face criminal prosecution.One even initially refused to confirm his weight which would become an important piece of evidence in assessing the cause of Sheku's injuries. They did however come up with our old friend, the "terrorist" excuse Police perception of what was happening also appears to have been muddled. During the altercation, one is reported to have believed his colleague was being attacked. It later transpired that he had accidentally hit himself with CS spray which itself raises doubts whether it was discharged in the proper manner.Following the receipt of information from his brother-in-law, the BBC has decided, unusually, to name one of the policemen involved as PC Alan Paton. He was one who had alleged he believed Sheku was a terrorist and was closely involved in the arrest which they give the latest, different, angle on:Five minutes later it was noticed that Mr Bayoh was unconscious and an ambulance was called. Five minutes after that and after the ambulance had not arrrived, they reported he was not breathing and started CPR. He was taken to the hospital where his sister works, still unresponsive and was declared dead at 9:04.

Paton's sister's husband, Barry Swan came forward and gave sworn statements to the BBC which prompted their action. He stated that since Mr Bayoh's death, Paton has admitted being racist;



[Swan] said: "He [Paton] out and out admitted that he was a racist, that he hates them, as he puts it - all the blacks. It's not right he's a police officer."

He also told them that in 2005, Paton had attacked his own parents while on duty. His now 61 year old mother had been left unconscious and his father badly injured.

"A frail old man who'd basically been put through something he should never have been put through, he was literally black down one side. You knew instantly it wasn't one hit, he'd been kicked, he'd been stamped on. He'd had a major kicking."

I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law.

I hereby do solemnly and sincerely declare and affirm that I will faithfully discharge the duties of the office of constable.

The Police Investigations and Review Commissioner

In England and Wales under the Independent Police Complaints Commission police involved in deaths in custody are required to give immediate operational statements. A second more detailed statement is expected within 48 hours. PIRC has confirmed that it can require a police officer to provide information for the purposes of an investigation where requested to do by the police or chief constable. But where they have been directed to investigate by the Crown Office, investigators cannot compel officers to give any information.

Scottish Police Federation sources have confirmed that officers are advised not to provide any operational statements relating to serious incidents they are involved with until such time as they are aware whether they are the subject of any criminal investigation.

This was prior to the merger into Police Scotland when Paton was serving with the Fife Constabulary. Police were called but his parents decided against prosecution after being told by senior officers that it would be dealt with internally. That of course is against best practice where any domestic violence should be criminally prosecuted even if the victim does not wish to proceed. Paton may have been on duty but that should have worsened the case, not provided an excuse to apparently do nothing. Swan's evidence regarding Paton's alleged admission of racism would also render him incapable of fulfilling his oath as a Police Officer if he were in England as this explicitly requires that:Instead the Scottish oath is simply:Of course the provisions of the English oath are implicit however there are other aspects of Scottish policing that fall short of the ideal.The PIRC has not had the detailed political review that the Independent Police Complaints Commission has had in England and Wales after concerns about their independence and performance. Perhaps the most notable is the removal of the right to "take the fifth" and not give evidence if criminal prosecution is possible. This had been used by police in England to frustrate investigations and pervert the course of justice. Eventually the view was taken that in taking up the office of constable and as an officer of the Crown, an individual gives up the right to refuse to give evidence. The Herald also explainsOne of the most serious criticisms of the IPCC was the perceived bias in favor of the police because of its investigators were police themselves. The House of Commons' Home Office Select Committee in 2013 recommended that it have no more than 20% of its investigators who are ex-police officers.

However the Herald reported in September:



According to the body’s website, the PIRC is “an independent organisation not connected to the police”. However, statistics obtained by this newspaper show close ties between the PIRC and the police service. Of the 27 investigators responsible for dealing with PIRC cases, 15 used to be police officers. Of the 11 individuals who are in senior positions, eight are ex-police - around 73%. The two key individuals overseeing and investigating the Bayoh case are former senior officers with a link to the service spanning over fifty years. John Mitchell, the director of investigations, is a one-time detective chief superintendent and former head of CID at Strathclyde Police. John McSporran, a key member of the Bayoh case team, retired from Strathclyde Police in 2012 after 30 years service

In England and Wales, the IPPC has the possibility of using other forces' investigators in minor cases so it can concentrate on the major complaints and deaths. With a single force covering everyday policing over the whole country, this is obviously not possible. It also allows the perception that it is colleagues of those complained about investigating. Unfortunately in this case, the actions of the PIRC have reinforced those perceptions.

In September it was revealed that the PIRC had commissioned a report on "excited delirium" in connection with Sheku's case. They consulted US pathologist Dr Steven Karch and forensic and legal medicine specialist Dr Jason Payne-James who are both adherents to the theory that this could kill.

Professor Eric Balaban, senior counsel with the American Civil

Liberties Union’s National Prison Project, said: “There is doubt over whether it is even a real condition. “The amazing thing about excited delirium is how many times it is raised in exactly this type of context – an altercation with police officers. It’s almost exclusively used in police cases and there have been concerns over whether it is used as a means of whitewashing .... British forensic pathologist Nat Cary said in 2012: “Excited delirium is a way of offering an excuse on behalf of the state for a death in custody. It’s a meaningless catch-all term that appears repeatedly in restraint cases when the individual is seen acting aggressively and is on drugs or is mentally ill.”

While an initial post mortem was inconclusive, a second examination shows injuries consistent with positional asphyxiation.

The Chief Constable

The first Chief Constable of Police Scotland has had an unfortunate time and has announced his early resignation after the force failed to respond to a car crash for three days . The driver was found dead and the passenger died in hospital later. His handling of this case also caused criticism.

Sir Stephen House visited the officers involved in the incident before they had made statements to the PIRC. He even made a special "welfare visit" to PC Short while she was "recovering from her injuries" and awaiting trial on the data breach charges. In contrast, he did not contact Sheku's partner and family to apologize for them being given several different stories about his death in the days immediately after. She complained



“He has ignored us but found the time to visit these officers, while they were still being investigated and before they had even given statements to the investigators.” Family solicitor Aamer Anwar said: “You have to ask just exactly what the chief constable was playing at. What did he think he was doing? “He is meeting officers who could, theoretically, end up on very serious criminal charges. “He should not, under any circumstances, have met officers in the middle of such a serious investigation. But he did and we have to ask why.”

Questions have also been asked why the officers were not suspended from duty, without prejudice, while the death was fully investigated. It all gives the impression of a police organization which has failed to get a grip of the need to maintain the confidence of the public in its impartiality.

In contrast, the Lord Advocate's office does seem to have made its best efforts to keep the family advised of the progress of the investigation, to the extent of showing them the video evidence that might later be used in a prosecution. The case appears to be forcing the Scottish Government to revisit the terms of reference of the PIRC and in particular its use of ex-police officers. There would have to be legislation to remove the "right to silence" which has been used by the Police Federation to subvert investigations. The new Chief Constable will also have to examine whether the merger into a unitary force has been effective. A further investigation is obviously required to examine the allegations against Paton; if the allegations of assault of his parents are true, there are serious questions to be asked about the actions of the senior officers at the time and why he was apparently allowed to continue as normal. There will also have to be a thorough examination of overt and institutional racism within Police Scotland, if only to assure that Paton's alleged views are rooted out.

I have contrasted the organization of the PIRC in Scotland with the IPCC in England and Wales. I do so as an example of better practice, not best practice. Over the years, changes have had to be made to ensure public confidence is maintained and the IPCC has made serious procedural errors which have diminished that. As in Scotland, the English Police Federation seem to see their duty to protect its members, however corrupt, from the consequences of their actions, if necessary by outright lies and public campaigns.