Police officers called to give evidence in the Sheku Bayoh inquiry could potentially find themselves being charged over the case after a bid to grant undertakings was rejected.
Scotland’s solicitor general Ruth Charteris QC says she can’t guarantee that information given by certain witnesses will not be used against them in future prosecutions.
Mr Bayoh was 31 years old when he died in police custody after being restrained by officers in Kirkcaldy, Fife seven years ago.
A public inquiry into his death will open in May.
The Crown was asked to give undertakings to 12 named officers that it will not use any evidence they provide against them in any prosecution which might arise over the events surrounding Mr Bayoh’s death, and the post-incident management.
However, Ms Charteris said she is not satisfied that it is in the public interest to grant that request.
She 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.
“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.”
Lawyers for the Scottish Police Federation and officers involved in the case previously said they wanted an undertaking that no evidence given to the inquiry by any officer would be used against them in any criminal proceedings, or when deciding if they should face prosecution.
A preliminary hearing for the inquiry earlier this year heard that without such an undertaking some officers could refuse to answer questions about Mr Bayoh’s death.
Lord Bracadale had also sought an undertaking from Fiona Taylor, Deputy Chief Constable of Police Scotland, that she would not seek to rely on evidence given to the inquiry by an officer in any future disciplinary proceedings against that officer arising from the events of May 3.
She declined to give such an undertaking.
Lord Bracadale said: “I acknowledge the decisions of the Solicitor General and Deputy Chief Constable, published today, in respect of the request for undertakings.
“It is a matter entirely for the Solicitor General and Deputy Chief Constable whether or not to give the undertakings sought. 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 3 May 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.”
It has also been revealed that race will be considered “at every stage of the inquiry” that has around 50,000 documents to scrutinise.
A preliminary hearing in November was told that the inquiry will look to establish if Mr Bayoh’s race made a difference to his treatment.
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