THE system for investigating deaths in police custody is deeply flawed and in need of urgent reform, according to the lawyer acting on behalf of the Sheku Bayoh family.

A public inquiry into the 32-year-old’s death has just been announced but Aamer Anwar hopes it will lead to an overhaul of the whole process.

He is particularly critical of the role of the Lord Advocate and the Police Investigations and Review Commissioner (Pirc), the organisation responsible for the investigation of any deaths in police custody.

Anwar told the Sunday National that Pirc, where he says the majority of investigating officers are former officers, should be radically reformed or replaced with a new organisation – as was the Independent Police Complaints Commission (IPCC), its sister organisation in England.

He said that as well as making sure any organisation charged with investigating deaths in police custody is perceived as truly independent, the whole process of investigation should be improved so that police officers involved in such deaths are questioned immediately, have to give operational statements and are not given any chance to confer.

The process should also be sped up, with the families of the deceased kept informed of progress, according to Anwar.

The National: Lawyer Aamer Anwar

“The investigation process is simply not good enough nor quick enough,” he said. “Up until now the mantra from the Crown Office to excuse the extended times is that it is ‘complex’. That’s unacceptable and the Lord Advocate needs to be accountable as he operates with almost total immunity.”

The total length of time so far spent investigating the case of Sheku Bayoh, who never regained consciousness after being restrained by police in Kirkcaldy in 2015, has been four and a half years.

“Why did it take so long?” asked Anwar. “The Lord Advocate did apologise but offered no real explanation. If a member of the public dies outwith police custody we don’t expect it to take that long to decide what is happening. Put on a uniform and it is a different set of rules.

READ MORE: Sheku Bayoh’s family to get an answer on Police Scotland charges

“There are also question marks over the role of Pirc. It needs to be dismantled or brought up to scratch as what happened in this case is not acceptable. The investigation was completely and utterly flawed – the post incident management by both the police and Pirc was seen as a total farce, hence the need for a public inquiry. Pirc is supposed to take control as soon as someone dies in police custody but they took two days before doing so in Sheku’s case, whilst the same police force involved in the death carried out door-to-door investigations.

“There were also five separate versions of events given to the family. Nine officers were involved in the restraint but they were allowed 32 days before they gave statements.

“Everyone knows that the golden window of opportunity for an investigation into a serious crime is the first 24 hours.

“The officers were able to confer and that is unacceptable. If it had been civilians that had detained and restrained Sheku Bayoh, the idea that they would have been put in the same room following his death in the same police station is unthinkable. They would have been separated and treated as suspects, but in this case it was completely different treatment for the police officers.

“I don’t deny they have a difficult job and on many occasions I have represented police officers. They face danger in the line of duty and one of the worst things that can happen is for someone to die on your watch, but if he or she dies as a result of restraint, certain rules must be followed to make sure it does not happen again and in this case that did not happen.

“It was four and half years of flawed process and at the end of the day we got nothing.”

Anwar said there was also the question of institutional racism.

The National: Aamer Anwar photographed at his offices in Calton Place

“Why was his partner asked about Sheku being a Muslim and if he ate pork? What relevance did that have? When two police officers give a statement saying they believed it was a terrorist attack when it was a young black man at 7.30 in the morning in Kirckaldy – why would they think that? It was a police officer’s own family that came forward and made serious allegations about his violent behaviour and his racism.”

He added: “PIRC needs to be fundamentally reformed. It’s not popular with civilians or the police and stands accused of incompetence and institutional bias and building its own unaccountable empire.”

Under human rights laws, the family should have been involved in the investigation, Anwar said.

READ MORE: Sheku Bayoh's sister claims ‘institutional racism’ in Police Scotland

“The whole process has been a box ticking exercise that did not involve the family. We were forced to go to the civil courts in order to access information in this case and forced to carry out our own investigations. Families do not have Legal Aid funding for this and for four and a half years we have acted for them without funding.

“We would not have ended up with a public inquiry had we walked away but there are so many other cases where the families’ voices are denied. They are locked out and that is unacceptable in a civilised society.”

Anwar, the Sheku Bayoh family and the charity Inquest have welcomed the decision to hold a public inquiry into his death, believing it to be an opportunity to hold power to account and bring significant changes to the way such incidents are investigated.

“This is a welcome decision and shows the Scottish government recognise the serious issues raised by Sheku’s death,” said Deborah Coles, Executive Director of Inquest. “It is also in both the family and public interest. This inquiry must have the family voice at its heart, a terms of reference that can scrutinise the systemic issues raised and a robust and diverse panel. Those entrusted with the role of policing must be subject to accountability before the law. This inquiry can help examine concerns about racial injustice and the way custody deaths are investigated in the hope that future deaths are prevented. Today is a positive step in the family’s search for truth and accountability.”

A spokesperson for PIRC said: “We employ a range of staff drawn from various backgrounds and currently 64% of our staff do not have previous experience as police officers.

“Currently, 54% of staff within the Investigations Team previously served with one of the former legacy forces, a recognition that those with expertise in dealing with situations such as deaths in custody, crime scene management, road traffic matters, firearms incidents and family liaison support bring a depth of experience and specialist skills to our investigations. The remaining staff are drawn from a variety of investigatory backgrounds, including from the Fire and Rescue Service, Armed Services and those recruited through our trainee programme.

“Furthermore, the role of the Commissioner itself can only be held by someone who has never worked for a policing body, underlining our independence.”

With regard to the Sheku Bayoh case the spokesperson said: “The PIRC was directed to investigate the circumstances of Mr Bayoh’s death by the Crown Office and Procurator Fiscal Service (COPFS) and submitted investigation reports to the COPFS in August 2015 and 2016.

“As this matter will now be examined before a Public Inquiry it would be inappropriate to comment further.”

A spokesperson for the Crown Office and Procurator Fiscal Service said: “Deaths in custody are subject to mandatory Fatal Accident Inquiries where the facts and circumstances of a death are aired in a public forum.

“The Crown Office and Procurator Fiscal Service (COPFS) is committed to the prompt investigation of deaths, but accepts that in some cases the time taken to complete a thorough investigation has been too long.

“COPFS has recently increased the resource available to the Scottish Fatalities Investigation Unit (SFIU), with a view to reducing the time required to complete complex death investigations and improving the provision of information to families and next of kin.”

A Scottish Government spokesperson said: “The First Minister and the Justice Secretary met Mr Bayoh’s family this week to express their deepest condolences and assure them of our commitment to establishing the facts surrounding this tragic incident. They are right to expect a full public examination of the circumstances of Mr Bayoh’s death, and Mr Yousaf stated his determination to put in place a process to deliver that.

“The precise terms of reference for the Public Inquiry into the circumstances surrounding this tragic death will be developed following discussion with those most directly affected. The inquiry will look more widely than would be possible within a Fatal Accident Inquiry, including the early stages of the post-incident management of the investigation and whether or not Mr Bayoh’s race played any part in how the incident was handled by the police.

“It would not be appropriate to pre-judge the findings of the inquiry and any conclusions it might reach about the investigative process.

“Under the terms of the Scotland Act, it remains the case that any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.”