Police officers can refuse to give a statement on custody deaths if there is a possibility they will be involved in a criminal complaint, the justice secretary has confirmed.

The Police Investigations and Review Commissioner said they attempted to get police statements over the death of Sheku Bayoh, 31, in Kirkcaldy on 3 May.

His relatives claimed they were told five versions of what happened.

Hundreds of people attended his funeral on Sunday.

Justice Secretary Michael Matheson confirmed there was a change in police operating procedure on their co-operation with the Police Investigations and Review Commissioner (PIRC) to protect the rights of officers who may have been a witness to events.

Case-by-case

Fife Labour MSP Claire Baker acknowledged that officers have the same right to protection from self-incrimination as any other citizen but said the change in regulations is impeding Pirc investigations.

Mr Matheson said he has received no complaint from Pirc about the scope of its powers.

Ms Baker said: “Sheku Bayoh died in police custody in Kirkcaldy on 3 May.

“There is an investigation ongoing into the circumstances of his death and his family understandably want answers.

“My understanding is that in a serious case such as a death in custody, the accompanying regulation five of PIRC Regulations 2013, which provides PIRC with the power to require information from police officers, does not apply and no witness can be compelled to give a statement.

“In addition, it has been reported that in March a Police Scotland memo was issued to police officers following an agreement with the Crown advising them that they do not have to provide operational statements relating to incidents that they have been involved with if there is a possibility of them being involved in a criminal complaint.

“It leads to a situation where at the exact stage where PIRC needs the strongest possible powers, its powers are restricted and officers are being advised that they do not need to co-operate where there is a possibility of criminal complaint.”

Key information

She added: “I understand that police officers are entitled to the same protection as any other citizen.

“However, if there is to be policing by consent then surely there should be public confidence in the investigation.

“But at the moment, the current legislation, regulations and the guidance appear to create an environment where it is possible for key information not to be shared at key moments in the investigation.”

Liberal Democrat justice spokeswoman Alison McInnes said: “As I understand it, Pirc confirmed publicly that they made several failed attempts to secure statements and only recently secured a statement.”

Mr Matheson said it would be inappropriate to comment on an ongoing investigation.

He said: “In general terms, the member is correct that there were some changes to the operating standard procedure that she refers to.

“That was a change to reflect the particular circumstances where an individual officer may be a witness to a particular event and they are considered on a case-by-case basis when it comes to taking a statement from those officers.

“Routinely, though, the normal process would be that if they had been a witness they should not be relieved of their duties until an operational statement has been written, but that is also dealt with on a case-by-case basis.”

He added: “To date, we have not received any representation from Pirc in relation to their particular powers.”

‘Case to answer’

The solicitor for Mr Bayoh’s family, Aamer Anwar, said they were “saddened” at the response to their concerns.

He said:

“PIRC have repeatedly advised the Bayoh family of their frustrations at their lack of powers, however, it is not for public servants such as PIRC to ask for changes in the law.

The government should have the courage to accept that there is a case to answer and to extend PIRC’s powers, putting them on a par with their English counterparts at the IPCC.

It really does not make sense that Pirc can only exercise its full range of powers when directed by the Chief Constable but not when directed by the Lord Advocate.”