Scotland’s new chief prosecutor previously said Sheku Bayoh cops ‘must face charges’ over dad’s death

Scotland’s new chief prosecutor wrote an explosive report demanding police face charges over the death of Sheku Bayoh.

The Sunday Mail can reveal Lord Advocate Dorothy Bain signed off a Victim’s Right to Review (VRR) on behalf of the tragic dad’s family after her predecessor James Wolffe failed to act.

The document – penned in 2019 before she took over at the helm of the Crown Office – highlights a litany of failings in the decision not to prosecute the officers involved and also Police Scotland as an institution.

Father-of-two Sheku was found to have 23 injuries including a broken rib and gashes to his head after he was restrained by up to nine officers in the street in Kirkcaldy in 2015.

The death of the 31-year-old gas engineer, who was originally from Sierra Leone but had lived in Fife since the 1990s, sparked a major crisis for Police Scotland and the Crown Office.

Bain has now been forced to recuse herself from a judge-led public inquiry into the incident as a result of her work fighting the victim’s corner.

The widely respected QC landed Wolffe’s job after he stepped down in June.

We can reveal the VRR – drafted by Bain and sent to him in 2019 – argues the decision not to prosecute should be reversed on the grounds:

– Police officers involved potentially broke the law by using unnecessary and unreasonable force.

– The officers may have perverted the course of justice by giving untrue statements after the incident.

– There was a strong public interest in the prosecution of Police Scotland under the Corporate Manslaughter and Corporate Homicide Act or health and safety legislation.

Extracts from the document seen by the Sunday Mail state: “When one has regard to the whole circumstances of the case, the eyewitness testimony and the pathology evidence it is clear that there are good grounds for asserting that the manner and method of restraint used was inherently unsafe and caused or at least contributed to the death of Mr Bayoh.”

The report states that it is “clear on the evidence that the use of force has been unlawful”.

It outlines how officers with a combined weight “greater than 40 stone” placed themselves on a vulnerable area of Sheku’s upper torso.

It concluded that this would have restricted his breathing and produced a “serious and life-threatening degree of asphyxia”.

The document adds: “Before Mr Bayoh came into contact with the police he was alive and walking along the road.

“He was then physically restrained by a method that carries with it a foreseeable risk of death.

“Immediately after his restraint was effected he was dead. All of this happened within a period of under five minutes.

“This factual position alone provides powerful circumstantial evidence that supports a direct causal link between the actions and conduct of the police officers and Mr Bayoh’s death.”

The VRR questions whether racism played a part in the police operation, stating: “Their reaction was completely out of proportion with the events as they presented, reflected in the fact that they considered they were dealing with a ‘terrorist plot’ and plainly had in mind the ‘Lee Rigby case’.

“In these circumstances it is legitimate for the family to ask whether Mr Bayoh was treated in the way he was because of the colour of his skin.”

Aamer Anwar, lawyer for the Bayoh family, confirmed Bain’s involvement and praised her commitment to justice.

He said: “It is right to say that my firm instructed the present Lord Advocate Dorothy Bain QC and this is a matter of public record.

“Ms Bain acted as senior counsel to our legal team for some several years and saw at first hand how the justice system operated to deny truth and accountability to the loves ones of Sheku Bayoh.

“Dorothy Bain was involved as counsel in helping draft the Request for Review of a Decision Not to Prosecute police officers and Police Scotland.

“This was submitted in February 2019 on behalf of the family of Mr Sheku Bayoh. The family remain indebted to Ms Bain for her legal support through many difficult years of struggle and of course it is entirely correct that she now has no role to play in the conduct of the Public Inquiry.

“The Lord Advocate is widely respected for being a formidable lawyer but everything she does has integrity and a passion for justice at the heart of it. The Bayoh family are glad to see a Lord Advocate in post who has always treated them with total compassion, empathy and respect.”

Just weeks before Bain was appointed, Sheku’s family wrote to the Crown Office demanding for his case be reopened in the wake of George Floyd’s death in America.

Sheku’s sister Kadi Johnson said: “Whilst George Floyd had one officer holding him down, our Sheku Bayoh had up to six police officers holding
him down.

“Like George Floyd, Sheku was fighting for his life, for his last breath.

“We are asking for due and urgent consideration to be given to this letter as it is our last hope that the Scottish legal system will deliver justice for all.”

A spokesman for the Crown Office and Procurator Fiscal Service confirmed Bain had worked for Sheku’s family’s legal team for three years before becoming Lord Advocate.

During that time, she accompanied them to meet former Justice Secretary Humza Yousaf at the Scottish Parliament.

The spokesman said: “In any case where there is a real or perceived conflict of interest, it is established practice that Law Officers and prosecutors will recuse themselves from involvement.”

A public inquiry opened in November but as yet no evidence sessions have been held as a result of the Covid pandemic.

Last week, we revealed a court battle between Police Scotland and a force trade union boss over the death of Sheku has cost taxpayers £50,000.

Senior officers took disciplinary action against Calum Steele following a Twitter post in which he was accused of making fun of the victim.

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