PC Nicole Short and PC Alan Paton, who have both been sick leave since the incident four years ago and who have yet to be told whether they will face criminal prosecution or internal misconduct proceedings, claimed that the decisions of the Scottish Police Authority (SPA) were “irrational”.

A judge in the Court of Session ruled that the SPA’s reasons “do not add up” and ordered the body to reconsider the officers’ applications.

‘High profile death’

Lord Woolman heard that father-of-two Mr Bayoh, 31, died in Kirkcaldy on 3 May 2015 after being restrained by police officers, and that questions have arisen about the conduct of the officers who were present at the time.

The Police Investigations and Review Commissioner (PIRC) carried out inquiries and sent a report to the Crown Office, following which the Lord Advocate decided not to bring any prosecutions.

Mr Bayoh’s family are seeking review of that decision under the Victims Rights Directive and the Victims and Witnesses (Scotland) Act 2014, and there may be a fatal accident inquiry.

The court was told that the petitioners PC Short and PC Paton, who have nine and 17 years police service respectively, have been on sick leave since the incident.

PC Short has been suffering from post traumatic stress disorder, while PC Paton has received extensive psychological counselling and long term medication for anxiety and depression as a result of the events.

They both applied for retirement on the grounds of ill health in terms of regulation 72 of the Police Pension Scheme (Scotland) Regulations 2015, but the SPA refused their requests as being “against the public interest”, because investigations into the “high profile” death of Mr Bayoh were still ongoing.

‘Public interest’

The officers challenge the decisions of the SPA, advancing three arguments. 

First, it was argued that the decision is irrational, having regard to: the “strong supportive medical evidence”; the “lengthy period” that has elapsed since the incident; and the absence of any intimation to them that they will face either prosecution or internal disciplinary proceedings in respect of Mr Bayoh’s death. 

Secondly, it was submitted that the SPA took into account an “irrelevant matter” – that the officers were involved in a high profile incident. 

Thirdly, it was also argued that the SPA Failed to take into account relevant factors: the “deleterious effect” on their health; the absence of intimation of any proceedings; and the “public interest in allowing them to retire, rather than continuing to receive full pay.

In seeking dismissal of the petition, the respondents submitted that the SPA had an “unfettered discretion” to consider whatever circumstances and advice it chooses, as long as they were relevant.

It was also argued that investigations were the province of the PIRC, Crown Office and Police Scotland, and that it would be ultra vires, practically impossible, and potentially prejudicial for the SPA to carry out its own investigations and take a different view.

The decision letters demonstrated that the SPA did balance the prospect of proceedings against the officers’ health problems, and the decisions were not “plainly wrong” because the SPA was entitled to wait until all investigations had been concluded, it was submitted.

‘Irrational decision’

However, the judge reduced the decision letters, and ordered the SPA to reconsider the petitioners’ applications for retirement on the grounds of ill-health within 30 days of the date of the order.

In a written judgment, Lord Woolman said: “I conclude that the SPA’s reasons do not add up. There is an unbridged gap between the alleged involvement of the officers in a high profile incident and the conclusion that it was in the public interest that they should be prevented from retiring. The decision was therefore irrational. 

“I hold that the SPA took irrelevant factors into account. It should not have attached any weight to the ‘high-profile’ nature of the incident, because (generally) adverse media comment should not impinge on reg 72 decisions, and (specifically) there was no foundation for inferring that either officer might be criticised for their conduct that day. 

“To say that they were ‘involved’ in the incident is not enough. Something more is required. I also hold that, as the counterpart, the SPA failed to take into account the relevant consideration that the officers have never been told that they may face proceedings.”