Thread by @richardh42

Will the public inquiry into the death of Sheku Bayoh bring justice? There may be some problems. Thread.
#BlackLivesMatter #ShekuBayoh

On the morning of 3 May 2015, on a street in Kirkcaldy, Sheku Bayoh lost consciousness while being "restrained" by police. He was pronounced dead in Victoria Hospital, Kirkcaldy at 9.04am
sacc.org.uk/news/2015/deat…

Police had been responding to calls from members of the public about a man brandishing a knife. But when police arrived when the Police arrived Sheku was carrying no knife, never threatened them with a knife, nor was one ever found on him

The circumstances of Sheku's death were investigated first by Police Scotland, then PIRC and then the Crown Office. The Lord Advocate announced on 3 October 2018 that no charges would be brought against any police officers.
sacc.org.uk/articles/2018/…

The family complained of repeated attempts by police sources to print lies, criminalise, speculate and smear Sheku in his final moments

Police investigating the incident did not secure the crime scene or prevent officers involved in the incident from conferring. It was 32 days before statements were taken from those officers

At this point - announcement of the decison not to prosecute - 3 years 5 months had already passed since Sheku's death.
Justice delayed is justice denied.

The family had a right to request a review of the Crown Office decision. Had they not exercised this right, they would have had difficulty taking the matter further. So there was to be more delay.

The family said they did not believe that Review of the Lord Advocate’s decision was compatible with the family's human rights under Article 2 [right to life, under the European Convention on Human Rights] and was simply a box ticking, paper exercise

On 11 November 2019, the Lord Advocate announced the outcome of the Crown Office's review of its own decision. To no one's surprise, it confirmed that no police officers would be prosecuted.

On 12 November 2019, Justice Secretary @HumzaYousaf announced in the Scottish Parliament that there would be a public inquiry. In January 2020 Lord Bracadale was appointed Chair of the inquiry. Its remit was announced on 21 May. Its start date is unknown

The remit includes and expands upon the standard remit of a Fatal Accident Inquiry. In Scotland, FAIs fulfil roughly the role played by inquests in England, Wales and Northern Ireland.

FAIs are often delayed to await the completion of criminal proceedings. This is a problem, especially if in the end there is no trial

Under Article 2 (Right to Life) of the #ECHR, States are required to investigate deaths involving State agents such as police. The process varies from state to state. In the UK, an inquest/FAI is part of the process

One of the requirements of the process according to judgments by the European Court Human Rights (#ECtHR), is that it should be prompt and expeditious. How unprompt is too unprompt?

In a 2001 judgment (Kelly and Others v. the United Kingdom) the court considered an 8 year delay before an inquest was held to be too long. It's now 5 years and counting since Sheku died.
Justice delayed is justice denied

What is the aim of a Convention-compliant investigation?

According to #ECtHR it is is "to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility."

What does effective mean?

#ECtHR says: "The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible"

This is a problem. FAIs in Scotland are not allowed to apportion blame. And unlike inquests in England, they can't arrive at a "verdict" eg, accident, unlawful killing etc.

In 2001 the #ECtHR ruled that an inquest in Northern Ireland failed to meet Article 2 requirements because, besides being delayed, it was not allowed to arrive at a "verdict". FAIs in Scotland are in this respect like inquests (at that time) in Northern Ireland.

Will Lord Bracadale be able to interpret the remit of the public inquiry in a way that satisfies the procedural requirements of Article 2? Is that even possible after so much time has elapsed? We shall have to wait and see.

The remit of the public inquiry requires it to look into the part that racism may have played in Sheku's death and the subsequent investigations. This is very welcome, and will no doubt encounter institutional and social defensiveness if it shows any teeth.

But a robust investigation into police #racism will be hollow, however strong its recommendations appear to be, unless there is also robust protection of the right to life. The #ECHR require something more than warm words
richard-haley.co.uk/justice-last/