The public inquiry into man who died in police custody is seeking a ban on prosecuting officers using the evidence they give at its hearings.
The inquiry is being held into the 2015 death of Sheku Bayoh after he was restrained by officers responding to a call in Kirkcaldy, Fife.
Its chairman Lord Bracadale issued his ruling on Tuesday confirming he will request undertakings from the Solicitor General and Deputy Chief Constable of Police Scotland.
The undertakings would mean testimony given by cops couldn’t be used against them in any future trial.
They would also cover any disciplinary proceedings launched against them within the force.
Lord Bracadale said the move would allow key witnesses to give “full and frank” evidence.
But the Bayoh family, who opposed the undertakings, said they were “bitterly disappointed”.
Aamer Anwar, the family’s solicitor, said: “Despite what is stated by Lord Bracadale, the family completely understand what is sought by those acting for the police officers and they say this as a demand for a convoluted form of immunity.”
A hearing last week saw lawyers representing officers in the case argue undertakings should be sought.
In his ruling, Lord Bracadale made clear he wasn’t asking for “immunity” on behalf of any officer or former officer.
He said: “It is vitally important that all should understand the limited nature of the undertakings which I request.
“The requests do not seek immunity from prosecution or disciplinary proceedings.
“In the event that new evidence against officer A emerges in the inquiry it will be open to the Solicitor General and the Deputy Chief Constable to make use of that material as they think fit.
“The undertaking is restricted only to the use of evidence provided to the inquiry by officer A.”
Undertakings of this kind have been given in other public inquiries, including those probing the murder of Stephen Lawrence, Bloody Sunday, and the Grenfell Tower fire.
In Scots law, a witness is entitled to refuse to answer a question if a truthful answer could lead to self-incrimination. This privilege is also enshrined in the European Convention of Human Rights.
Bayoh, 32, originally from Sierra Leone, died after being restrained by up to nine police officers who used CS spray, pepper spray and batons.
Lord Bracadale said the inquiry would require access to full evidence from “crucial” witnesses to fulfil its terms of reference.
He added: “I have repeatedly stressed the important public interest in striving to ascertain the truth in the Sheku Bayoh Inquiry.
“My task is to search for the truth through the evidence. That will involve a consideration of the whole evidence, making of findings in fact and drawing inferences from proved facts.
“Each of the officers and former officers is a crucial witness in respect of highly important and potentially controversial aspects of the terms of reference.
“The exercise of the right against self-incrimination by these witnesses would be likely to have a profound effect on my ability to reach the truth of what happened.”
In reaching his decision to apply for undertakings, Lord Bracadale said the Bayoh family should hear the “fullest account” of events.
He said: “I have committed to ensure that the family of Sheku Bayoh are at the heart of this inquiry. They have a strong interest in hearing the fullest account of what happened on May 3 2015 leading to the death of Sheku Bayoh.
“The full evidence of the key witnesses is essential to achieving that. In the absence of the undertakings the family are most unlikely to hear the full evidence of the officers.
“The terms of reference require me to hold individual officers accountable for their actions.
“In order to do that I will require the full and frank evidence of officers and former officers to be available to the inquiry.
“Without the undertakings my ability to hold individuals to account will be severely limited.”
The Bayoh family spoke out against the ruling after meeting with Chief Constable Iain Livingstone and Deputy Chief Constable Fiona Taylor on Tuesday afternoon.
Mr Anwar said the chief constable again “expressed his sincere personal condolences to the family, and those of the service”.
He added: “Importantly he undertook that Police Scotland will participate fully in the public inquiry in an open and transparent manner.”
The public inquiry, which will consider whether race played a part in Bayoh’s death, is due to begin in May.
Don't miss the latest news from around Scotland and beyond - Sign up to our daily newsletter here.
