The former lord advocate who supervised the initial investigation into Sheku Bayoh’s death told an inquiry that he immediately recognized that “issues of racial motivation would be central to the investigation.”
Frank Mulholland reflected on the erosion of public trust following the racist murder of Stephen Lawrence and expressed “no regrets” about his interactions with Mr. Bayoh’s family, stating he would act the same way again.
Mr. Bayoh, a 31-year-old father of two, died after being restrained by six police officers in Kirkcaldy, Fife, on May 3, 2015, following his arrest under the influence of drugs.
The Sheku Bayoh inquiry is scrutinizing the events leading to his death, the police response thereafter, the subsequent investigation, and the role of racial factors.
Mr. Mulholland, 65, who led Scotland’s prosecution service from 2011 to 2016 and headed a diversity unit, testified at the inquiry on Thursday.
He immediately anticipated the case’s high profile upon learning of it and referenced the racist murder of teenager Mr. Lawrence in London in 1993.
He also mentioned the case of Lanarkshire murder victim Surjit Singh Chhokar, whose murderer was convicted 18 years after his 1998 death at a retrial reopened by Mr. Mulholland after double jeopardy laws were reformed in 2011.
This followed two 2001 inquiries, one of which highlighted institutional racism in the handling of the case by the police and the Crown Office and Procurator Fiscal Service.
Mr. Mulholland expressed surprise that the Police Investigations and Review Commissioner (Pirc) did not initiate “an active investigation” into racial aspects of Mr. Bayoh’s death.
He recounted his broad experience with hate crimes, including the Glasgow murder of Mark Scott, and mentioned meeting with families of Lockerbie bombing victims during his tenure.
He described Mr. Bayoh’s family as “nice” and “unwillingly thrust into the spotlight,” defending his decision to communicate evidence through solicitor Aamer Anwar, whom he trusted.
He emphasized his “duty” to ensure the family’s “effective participation” in the inquiry, as outlined by the Supreme Court, and underscored his responsibility to be informed about the case.
On May 21, 2015, Mr. Mulholland wrote to the chief constable of Police Scotland, raising concerns about “anonymous briefings” from the Scottish Police Federation, which he felt distressed the family during a delicate time before facts were established.
In October 2015, he felt compelled to publicly call for restraint to let the Crown Office and Pirc perform their duties without interference.
During his testimony, Mr. Mulholland said, “Meeting Sheku Bayoh’s family, they were kind, not seeking vengeance but answers about what happened, why it happened, and if it could have been prevented. This seemed critically important.
“We can’t ignore the impact of the Stephen Lawrence case on public trust in the legal system, nor the Chhokar case mishandling. As lord advocate, I was determined to do everything possible under my watch, which is why I engaged closely with the Bayoh family. I have no regrets, and I’d do the same if it were to happen again.”
Regarding the time of Mr. Bayou’s death, Mr. Mulholland noted, “When I first heard about it, I knew it would be high-profile with racial issues at the forefront of the investigation. As lord advocate, it was my role to step up, know the case details, and secure necessary resources.”
Senior counsel to the inquiry Angela Grahame noted, “From September 2015, race was mentioned in correspondence, but Pirc’s earlier investigation acknowledged race without actively investigating it.”
Mr. Mulholland found it surprising, stating, “My interactions with Pirc weren’t just through letters. It was clear in our discussions that race was a predominant issue. I’ve dealt with various hate crimes, so this was central to my concerns.”
Mr. Bayoh’s cause of death was listed as due to drugs and restraint, but Mr. Mulholland suggested further inquiry was needed, potentially involving the pathologist.
He said, “If police were prosecuted and restraint was a minor factor, it would influence sentencing. It’s relevant.”
The Bayoh family felt they were being unfairly portrayed, fearing leaks from the Crown Office.
Mr. Mulholland responded, “Smearing isn’t my style. During my time, I don’t recall any such behavior at the Crown. They had their lawyer, Aamer Anwar, and me. They could always talk to me; we maintained regular dialogue.”
Ms. Grahame asked if more could have been done to clarify the Crown Office’s non-involvement in these matters.
Mr. Mulholland stated, “I deeply respected the family’s difficult position. Building trust and handling the investigation transparently is crucial.”
He recalled advising his successor for consistent and effective communication with the Bayoh family and was not concerned about the interim report omitting race, assuming it would be addressed in the final report.
Inquiry chairman Lord Bracadale acknowledged the emotional weight of the upcoming ninth anniversary of the incident for the family and friends of Sheku Bayoh, reaffirming the inquiry’s commitment to a thorough examination of the evidence.
The ongoing inquiry in Edinburgh seeks to uncover further details about the case.
