Scotland’s most senior police officer is taking court action against Deputy First Minister Kate Forbes in a bid to block scrutiny of a notorious death in custody.

Chief Constable Jo Farrell has been accused of “denying a black family the truth” after launching the unprecedented legal challenge over the Sheku Bayoh public inquiry.

The Sunday Mail can reveal Police Scotland has spent an eye-watering £22.2million on the official probe including on representation from two top KCs understood to be charging £5,000 a day each.

Chief Constable of Police Scotland Jo Farrell

The new action at the Court of Session in Edinburgh will call this week and could add a six-figure sum to the final bill.

Dad-of-two Sheku died after he was restrained on the ground by six officers in Kirkcaldy in 2015, with CS gas, pepper spray, batons and leg and arm restraints used.

In a letter to Farrell, the victim’s sister Kadi Johnson said: “Yet again Police Scotland has betrayed me and my family, now you and your army of lawyers are denying us, a black family, the right to know the truth.

“How ironic that you have spent over £22 million on defending your conduct, whilst we do not even have funding to appear at the Court of Session.

“Meanwhile we wait on Kate Forbes making a decision and to do it as soon as possible, at the very least we have hope that she will not betray the promises made to us by her Government to pursue the truth.”

The Sheku Bayoh inquiry began two years ago and is looking into the circumstances leading to his death and the aftermath – however it is not currently probing the Crown Office’s controversial decision not to pursue criminal convictions against the police.

Forbes is in the process of making a potentially explosive judgement on whether to broaden the scope of the inquiry in a move that could pave the way for fresh criminal prosecutions.

Earlier this month the Sunday Mail revealed the Crown Office had made clear it would not stand in the way of the move.

But Farrell has now instructed lawyers to go to the Court of Session to seek a judicial review of the process being used by Forbes.

Her legal team have outlined what they believe is an “unfair approach” on the part of the government and challenged whether its decision making process is lawful.

Lawyer Aamer Anwar with the sisters of Sheku Bayoh; Adama Jalloh (left), Kadi Johnson (centre) and Kosna Bayoh (right)

In a furious letter to the Chief Constable lawyer Aamer Anwar, who is representing Sheku’s family, said: “Since 2015 when Sheku Bayoh died in police custody his family have been repeatedly let down by Police Scotland.

“The Solicitor General has already stated that she would not stand in the way of the extension of the terms of reference, which begs the question as to why as Chief Constable, you have chosen to spend potentially hundreds of thousands of pounds on a legal process to stop the Deputy First Minister making a decision.

“The Bayoh family view this as desperate last throw of the dice and a cynical attempt to further delay proceedings and block the truth finally being revealed.

“The family wish to ask you what exactly you have spent £22.2million on. Could also confirm it is true that all Kings Counsel appearing at the inquiry on behalf of individual police officers and that Police Scotland were paid by Police Scotland £5000 per day.

“The family request that you instruct your legal team to immediately withdraw the petition for Judicial Review and support the extension of the Terms of Reference.”

Members of the public reported seeing Sheku carrying a knife and chasing cars shortly before he was confronted by police.

The 31-year-old did not have the knife when police arrived at the scene but a violent confrontation followed and he was restrained on the ground by six officers.

Sheku lost consciousness and died in hospital.

Kate Forbes is in the process of making a potentially explosive judgement on whether to broaden the scope of the inquiry in a move that could pave the way for fresh criminal prosecutions.

A post-mortem examination later determined the cause as the “sudden death in a man intoxicated by MDMA (ecstasy) and alpha-PVP whilst being restrained”.

Deputy Chief Constable Alan Speirs has defended Police Scotland’s decision to pursue a judicial review.

He said: “The death of Sheku Bayoh was, and remains, a terrible tragedy and the Chief Constable fully supports the inquiry with an approach of absolute candour in order to provide answers for Sheku’s family and friends.

Police Scotland has written to the Deputy First Minister to outline an unfair approach in the ongoing process in relation to the proposed extension to the inquiry’s terms of reference.

“This includes a failure to share relevant material which has made it impossible for the Service to properly engage with the Scottish Government’s consultation.

“The Chief Constable is ready to work with core participants, the inquiry chair and the Scottish Government to ensure matters proceed lawfully and as quickly as possible.

“The Chief Constable has no desire to enter legal proceedings and has reluctantly applied for judicial review to ensure the process behind any extension of the inquiry’s terms of reference is lawful.”

The father-of-two died in Kirkcaldy, Fife
The father-of-two died in Kirkcaldy, Fife (Image: UGC)

James Wolffe KC was Lord Advocate when the Crown Office decided no-one should face charges over Sheku’s death.

But appearing before the inquiry in May he expressed “deep regret” that COPFS had lost the confidence of the victim’s family.

He said the Crown had missed an opportunity to investigate whether race had been a factor in the case.

Wolffe – who became Lord Advocate in 2016 – told the inquiry he had been aware that Sheku’s family had not been treated well immediately after his death.

He said: “It’s one of the deep regrets that I have reflecting back on this case, that Mr Bayoh’s family were left with a lack of confidence in the Crown and what the Crown had been doing.”

Commenting on Farrell’s legal challenge a Scottish Government spokesperson said: “We are aware of these proceedings. It would be inappropriate to comment while proceedings are underway.”

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