No ‘undertakings’ granted for officers giving evidence in Sheku Bayoh inquiry

However, the move means officers might refuse to give “full and frank” evidence to the Inquiry as it could be used against them in respect of any future prosecutions and disciplinary proceedings.

A public inquiry is due to open in May into the death of 31-year-old Mr Bayoh in May 2015 after he was restrained by Police Scotland officers responding to a call in Kirkcaldy, Fife.

Inquiry chair Lord Bracadale QC had asked that the Crown give undertakings to 12 named police officers that it would not use against them evidence which they provided to the Inquiry in any future prosecution arising out of the events in which Mr Bayoh, a black man, died, and the post-incident management.

He had asked for the guarantee following a request from the Scottish Police Federation.

Solicitor General Ruth Charteris QC said, however, that she was not satisfied that it was in the public interest to grant the undertakings.

In a letter to the inquiry, Police Scotland Deputy Chief Constable Fiona Taylor QPM said that having “due regard” to her own responsibilities she also could not give such an undertaking.

She said giving full and frank testimony is the “basic expectation we have of one another as police officers” and the very least the public demands, adding: “It is not ‘transactional’ and it should never be conditional.”

Ms Charteris said: “I respect the request from the inquiry and the views of the core participants in relation to this.

“Prosecutors must consider all cases on their individual facts and circumstances and act in the public interest.

“I have considered all the information available to me, and I am not currently satisfied that it is in the public interest to grant the undertakings.”

She added: “It is not known if officers will invoke their right to claim privilege against self-incrimination.

“Nor is it known what impact any such claim would have on the totality of the evidence available to the inquiry.

“I will give individual consideration to any future request for an undertaking should it become clear that the Inquiry will be prevented from fulfilling its Terms of Reference.”

Ms Charteris said the decision had been communicated to the Inquiry and to the solicitors of the family of Mr Bayoh and of the officers involved.

She said the Crown has reserved its right to prosecute in all matters related to this case.

Lord Bracadale had requested the undertakings to allow “key police witnesses” to give “full and frank” evidence to the inquiry. He said the undertakings were sought in respect of any future prosecutions and disciplinary proceedings.

Lord Bracadale has previously made it clear he was not asking for immunity on behalf of any officer or former officer.

He said: “It is vitally important that all should understand the limited nature of the undertakings which I request. The requests do not seek immunity from prosecution or disciplinary proceedings. In the event that new evidence against ‘officer A’ emerges in the inquiry it will be open to the Solicitor General and the deputy chief constable to make use of that material as they think fit. The undertaking is restricted only to the use of evidence provided to the Inquiry by ‘officer A’.”

In a statement issued earlier this month, Lord Bracadale said: “I have repeatedly stressed the important public interest in striving to ascertain the truth in the Sheku Bayoh inquiry. My task is to search for the truth through the evidence. That will involve a consideration of the whole evidence, making of findings in fact and drawing inferences from proved facts.

“Each of the officers and former officers is a crucial witness in respect of highly important and potentially controversial aspects of the terms of reference. The exercise of the right against self-incrimination by these witnesses would be likely to have a profound effect on my ability to reach the truth of what happened.”

Lord Bracadale acknowledged that it was a matter entirely for the Solicitor General and deputy chief constable whether or not to give the undertakings sought.

He said: “I note that the Solicitor General has left open the possibility of revisiting the issue of whether to give undertakings on an individual basis to officers involved. Consequently, I will now seek statements from each of the officers to ascertain how much information they are willing to provide to the Inquiry without undertakings from the Solicitor General. Once those statements have been obtained by my team, I will assess how best to proceed.

“The inquiry is fully committed to ascertaining the truth of how Sheku Bayoh died on May 3, 2015, and will keep all options open with a view to retrieving the fullest possible evidence in relation to events that day. The inquiry has already obtained statements previously provided by the officers as part of more than 30,000 pieces of evidence currently being considered.”

Responding to the announcement by the Solicitor General, David Kennedy, deputy general secretary of the Scottish Police Federation, said: “We note the Solicitor General’s position and will ensure that we continue to provide professional legal advice and support to those whom we are representing.”