Scottish Green MSP Mark Ruskell has written to the Lord Advocate James Wolffe demanding he clear up "confusion" surrounding the process after it was decided no criminal proceedings would be brought against the officers who had detained and restrained Mr Bayoh, who later died in custody.
Mr Ruskell asked Justice Secretary Humza Yousaf for an update on the case but was told to write to the Lord Advocate instead.
He said the delay was undermining the Crown Office and caused Mr Bayoh's family “significant distress”.
Sheku Bayoh died after being restrained by police in May 2015 while officers were responding to a call in Kirkcaldy, Fife. A public inquiry into Mr Bayoh's death has been announced, but Mr Ruskell raised concerns in Holyrood today about delays to potential misconduct proceedings against the officers involved.
He also asked the Justice Secretary about the ongoing work to set up the inquiry, and about reports that the Crown Office has not yet passed the case file to Police Scotland.
Mr Ruskell said the Lord Advocate had “promised” Mr Bayoh's family there could be misconduct proceedings if no criminal action was taken against those involved in the incident.
He said: “The inquiry led by Lord Bracadale is welcome and must be able to get the full picture from all involved. But there is clearly confusion around the status of misconduct proceedings. The Cabinet Secretary advised me to write to the Lord Advocate, so if there is any hold up on behalf of the Crown Office then he must liaise with Police Scotland as soon as possible, as there is no indication that proceedings have commenced.
“Another delay of two or three years would be deeply unfair for the family impacted by this tragedy.”
In his letter to the Lord Advocate Mr Ruskell said: “There is clearly some confusion about the progress of any potential misconduct proceedings that were promised to the family of My Bayoh by you in the event of no criminal proceedings being brought forward against the officers involved in the detention and restraint of Mr Bayoh.
“From what I understand it would appear that the Crown Office has not passed a file onto Police Scotland and to await a further three to four years for proceedings to be considered would be intolerable for all involved. The delay in passing files onto Police Scotland has been so long two of the officers
involved have retired.
"This delay undermines the integrity of the Crown Office and has caused the family of Mr Bayoh significant distress."
Questions have been raised about the death of Mr Bayoh by his family, who have been critical of Police Scotland, the Crown Office and the Police Investigations and Review Commissioner (Pirc) over what they describe as a lack of answers.
They have previously said they feel “totally betrayed by the Lord Advocate, for not holding power to account, for his broken promises, his betrayal of justice and failure to act in the public interest” when it was decided there would be no criminal proceedings against the officers involved.
Earlier Justice Secretary Humza Yousaf directed Mr Ruskell to raise the issue directly with the Lord Advocate as his job “was to instruct the setting up of a public inquiry that will examine the facts of the tragic death of Sheku Bayoh."
He added: “That will do that in a public way, it will be transparent and therefore if there are issues as a result of that public inquiry then, of course, they can be examined fully thereafter."The inquiry will be chaired by retired judge Lord Bracadale and is expected to examine the circumstances leading up to Mr Bayoh's death, as well as the events following it.Asked about progress on setting up the inquiry, Mr Yousaf said: "Since the announcement of the terms of reference in May, my officials have been working with Lord Bracadale and his team to put in place all the resources needed to make an effective start to proceedings before announcing the formal setting-up date for the inquiry."The key appointments of the secretary solicitor, senior and junior counsels for the inquiry have been made. Work continues on the appointment of assessors and identification of suitable premises. I continue to liaise closely with Lord Bracadale and of course will provide Parliament with further updates in due course."
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