A police officer who was part of an emergency response to Sheku Bayoh who later died controversially in custody said he was like a zombie and she was terrified he was going to kill a member of the public.
Nicole Short was one of a number of officers called out to an incident involving Sheku in Kirkcaldy, on May 3 in 2015.
The police constable and a fellow officer, PC Alan Paton, have both been on sick leave since and want to retire on medical grounds from the force.
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But the Scottish Police Authority (SPA) refused their applications claiming it would be against the public interest and wanted to defer the issue to find out if they would face criminal proceedings.
The two officers have now successfully challenged the decision in a judicial review at the Court of Session in Edinburgh with a judge requiring the SPA to reconsider their applications of ill-health retirement.
Lord Woolman said in a judgement issued today: “No one has suggested that the officers are culpable to any degree in respect of the incident. The SPA itself relies on an unspecified involvement.”
The judge said: “It is a mistake to conflate the public interest with matters in which the public has an interest. Decision-makers must ignore public clamour in undertaking their task.”
Lord Woolman said: “Public confidence falters where the necessary balancing exercise is not carried out, or cogent reasons are not given for a decision.”
“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,” he said.
PC Short was assessed by a doctor who said she was suffering from post traumatic stress disorder and was permanently disabled from undertaking the ordinary duties of an office.
PC Paton has received extensive psychological counselling and long term medication for anxiety and depression stemming from the incident and a psychiatrist has supported his retirement on medical grounds.
PC Short, who has nine years service, and PC Paton, who has 17 years service, were on duty when members of the public phone Kirkcaldy police station over a man brandishing a knife.
Lord Woolman said he had decided to set out a sworn statement given by PC Short last year over the incident in his judgement because, although it was untested by cross-examination, it gave colour and texture to the circumstances from her viewpoint.
The officer said that while she was working with a colleague a call came in relating to a black male armed with a knife on Hayfield Road in Kirkcaldy.
She said: “I remember hearing that the police dog was in Edinburgh and could not be there soon enough and the firearms team was unavailable for some reason.”
“I remember thinking ‘it’s just us then’. My initial assessment was that a murder was about to take place and our instructions were simply to get to the scene.”
When she arrived she could see other officers, including PC Paton, were present. She said: “Mr Bayoh’s muscles were bulging and he looked aggressive. He was not listening to commands and looked very intimidating.”
She said PC Paton and a colleague had sprays out and were shouting at Mr Bayoh to stay where he was and to get back or be sprayed.
She said a spray was used but added: “Mr Bayoh reacted to the spray by laughing and wiping it away from his eyes like it was just water. It had no physical effect on him and did not deter him whatsoever.”
PC Short said the spray did affect PC Paton and his colleague who had their hands over their faces and were bent over.
She said: “I could not see a knife but still believed that Mr Bayoh had one on his person somewhere.”
“Mr Bayoh appeared to be on a mission from the manner in which he was walking. He appeared out of control and dangerous and given the reports of him chasing people with a knife as well as his demeanour and the way he didn’t react to the sprays, I felt that he could not be permitted to leave,” she said.
“I was terrified that he was going to kill a member of the public if he was allowed to leave the street, which is what he was trying to do.”
She said her colleague used a spray on Mr Bayoh and it hit him in the face. “But he kept laughing and just wiped it as if it was water and kept walking in the same direction,” she said.
“Nothing was working and we were not in control of the situation at all,” said PC Short. She took her baton from its holster and told him to get on his knees.
She said his reaction to being sprayed was consistent with being under the influence of drugs. She added: “I have never seen anything like it before, he was like a zombie.”
She said he came towards her skipping in the way she had seen boxers do. She said: “I still thought in my head that he would stop eventually.”
“In all my years of service I have never needed to use my baton or spray at all and usually, because I am so short and petite, this serves to de-escalate situations with men,” she said.
She said she swiped her baton, missing him, in a bid to show him he needed to stop but he became so close he was he was “right in my face” and she decided to turn and run.
“I was screaming at this point and desperate to get away from him. I screamed ‘NOOOOO’. I knew that he was chasing me and I knew that he was right behind me,” she said.
She said she felt “an enormous blow” to the back of the head and went flying and landed on the ground almost at the other side of the road.
“I did not feel him hitting me again and I’m not sure that I was conscious, but I was later told that he stamped on me at least three times,” she said.
She said she could not get up and kept falling back down and PC Paton lifted her up and shouted at her to run to the police van.
The officer said the incident with father-of-two Mr Bayoh (31) continued with other officers involved. She said: “I was crying and hysterical. The wind had been knocked out of me and I couldn’t breathe.”
Lord Woolman said the two officers in the judicial review proceedings have never been told that they are suspected of having committed a crime, not have they received notice that the face misconduct proceedings.
They had argued that the SPA took account of an irrelevant matter _ that they were involved in a high profile incident _ and failed to take account of relevant factors _ the effect on their health, the absence of intimation of proceedings and the public interest in allowing them to retire rather than continuing to receive full pay.
Relatives of Mr Bayoh have raised damages claims against the police following his death.
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