The Price of Innocence

by Michael Russell

  ‘Hi Shirley. How are you?’ said Karen brightly. But after the small talk she steered the conversation back towards familiar territory. ‘We are as keen as you are to resolve the problem. Don’t you just want it to go away? So why not tell the truth about being there – it can all be sorted out.’ Inspector Mcdonald’s approach may have been more compassionate, but it seemed clear her aim was to get Shirley to do exactly what Superintendent Thomson, DCI Heath and DI McAllister had asked for in their more confrontational conversations with her.

  Inspector Mcdonald was persistent. After three hours Shirley asked her to leave. Then she phoned her father, who came over straightaway. Shirley explained what had happened and Iain decided it was time for him to get involved. He phoned a former colleague, the divisional commander at Kilmarnock, Chief Superintendent Andrew Cameron, to complain about the visit and the pressure being placed on Shirley. An appointment to meet was made for the next morning.

  Having worked with Andrew Cameron, Iain respected his abilities, but he was by now extremely angry at the way Shirley and he were being treated. The meeting started awkwardly. Iain expressed his fury at the underhand nature of the previous day’s events and asked Andrew Cameron to explain why such pressure was being put on Shirley to lie. Cameron, whilst making no admissions, was keen to be helpful and made it obvious he wanted a quick and reasonable resolution. He agreed that there would be no more home visits of this kind and that some form of coordinated contact, acceptable to both sides, would be arranged. Options that might lead to Shirley returning to work were looked at and Chief Superintendent Cameron appeared understanding, offering to see Shirley the following day.

  In the discussion that followed, Iain explained why he felt Shirley was speaking the truth. Chief Superintendent Cameron accepted that her police record was impeccable and that he had always found her to be dedicated and honest. Yet there had to be some explanation for what had happened.

  For the next hour they discussed what that explanation might be. Was it possible that the door facings could have been touched by Shirley at the joiner’s or that somehow she had had contact with the wood before it had been installed in the house? These and other theories were mentioned but the one possibility that was never discussed was that the experts might simply have got the identification wrong.

  Iain left the meeting somewhat reassured, but there was little follow-through from Andrew Cameron. March opened with Shirley having yet more meetings with senior officers, including Andrew Cameron, but she was continually pressured to admit her mistake. No other possibility seemed to enter the minds of any of those involved.

  By this stage, Shirley, when alone, when with Iain or Nancy and when in meetings with her superiors, constantly tried to explore new possibilities which would explain the identification. Had she been in the house years ago and forgotten? Had she touched the wood before it had been in the house? Had the mark been mislabelled? Was her print almost identical to somebody else’s? Could she have had some form of mental breakdown and blanked out her presence in the house? Could her print have been lifted from somewhere else and accidentally, or on purpose, applied to the wood? The only possibility that was excluded on every occasion was the simplest one – that the SCRO was wrong.

  Shirley was referred by her GP to a psychologist but there seemed no mental abnormality that would explain the problem. Nor could her GP give any medical explanation of what might have happened.

  The month of March was a nightmare for Shirley and put a considerable strain on Iain, Mairi (Iain’s new partner, whom he had known for only a few months) and Nancy as well. Shirley remained off work ill and no progress was made in moving things forward. Then there was an ominous development – the request for another formal police interview, this time to be undertaken by two officers: Detective Superintendent John Malcolm who was in overall charge of criminal investigation in the Kilmarnock area and a female officer, Detective Sergeant Morris.

  Shirley was frightened of Malcolm, who had gained the reputation of being a man not to be tangled with. He was a fixer, someone who got things done, but some also regarded him as a bully and a misogynist. Very much a man’s man, within the very masculine police force he was widely perceived as an effective detective with a promising career in front of him. Sensitivity was not his strong point. He would, Shirley thought, take her refusal to admit to being in the house as a personal matter and see it as his duty to break her down.

  The interview began with a repetition of questions she had already answered many times. But then it took a new turn. ‘Where were you at the time of the murder?’ barked Malcolm in an aggressive manner. ‘Did you know Marion Ross?’ To Shirley these sounded more like accusations than questions and suddenly a new and even more horrendous possibility dawned on her. Was she being treated not merely as a liar, but also as a suspect for murder?

  Iain met with her shortly after the interview. When he heard about what had happened, he felt angry and powerless. Despite his pleas to the divisional commander, the pressure was increasing. Now Shirley faced psychological and emotional abuse, designed to terrify her into doing anything they wanted. By implying she was a murder suspect, it seemed the authorities were trying to intimidate her into confessing to the lesser crime.

  The persecution went on. In April there were more and more interviews, in every one of which Shirley denied having been in the house, and having known Miss Ross. Now the procurator fiscal at Kilmarnock, John McMenemy, interviewed her, asking very directly if she was aware how vulnerable her position now was. ‘Do you know how serious perjury is?’ he asked, reminding her of the penalties. She did, she replied, and she reiterated that she was not lying.

  At times it seemed that all these people were in competition for a prize – to obtain from Shirley McKie the confession that she had been in the house, and that she had left her fingerprint there. To them it was vital that the murder charge against Asbury be protected. There must be no loose ends, and certainly none as dangerous as a rogue officer who challenged the core evidence of the case.

  Andrew Cameron interviewed her again. There were more questions about the fingerprint, more inquiries about her untenable position, more threats about the consequences of perjury. And then came the first suggestions from her superiors that she might be mentally unstable.

  In desperation, Shirley asked to see someone from the personnel department at headquarters. Surely as an employee she had some rights and was entitled to some respect? Her request, however, was simply ignored by her superiors.

  Moreover, her hopes of a return to work were dashed whenever she raised them. It was clear there could be no progress until she admitted her crime. Only then might she expect a more positive response and until then she would be a pariah. Her sense of herself, her identity and her raison d’être would not be given back until she offered up what they wanted.

  The tactics were obvious. They were also cruel. Chief Superintendent Cameron did offer, one day, to have her back, and for a moment Shirley was buoyed up with hope. But the offer was to work at a station where her close supervisor would be an officer she had previously reported for sexual harassment. That fact must have been known to the divisional commander.

  So the spring of 1997 ended and Shirley was still off sick. Four months before she had been a rising police star, regularly praised by her colleagues. Now, according to those same police officers, she was a waning liability. A medical report at the time graphically plots her decline:

  I . . . found her to be distressed, confused and indecisive . . . She likens [her reactions] to those she has observed in the victims of rape and abuse. She is experiencing tension between her desire to continue her career . . . and her fear and aversion to returning to a system which she feels has destroyed her . . . She has a psychologically phobic reaction to the symbols or representatives of the police force, such as police cars or someone . . . telephoning.

  Iain experienced this first-hand one day when walking with Shirley in Troon. As a police polic
e car approached, Shirley broke down, cowering and shaking uncontrollably. The pain Iain felt for her was equalled only by his anger against the system that was destroying her.

  3

  The Asbury Trial

  Day 140

  With David Asbury now facing imminent trial for the murder of Marion Ross, it was inevitable that his lawyers would soon wish to speak to Shirley. Indeed, at an early stage during her police interrogations, senior officers had told Shirley that her denials about ever being in the house would have to be passed to Asbury’s defence team, as the information was germane to the trial. She was, of course, conscious that doubts about fingerprint evidence in the case could only help Asbury’s defence and she was concerned that by refusing to accept that she had been in the house she might help a killer – as she saw him – to walk free. At many of her interviews that precise outcome had been suggested to her as a likely consequence of her stance.

  In early May 1997, two of Asbury’s lawyers contacted Shirley and asked to see her. The meeting took place in Shirley’s home. Iain was present when the lawyers interviewed her and he was astonished when it quickly became apparent that they had not been told that Shirley was contesting a fingerprint identification, when the whole case against their client rested on such evidence. This crucial information had apparently been withheld and the lawyers had only asked to see Shirley because DCI Heath had apparently casually remarked that Shirley might have something interesting to tell them.

  Iain immediately realised that Heath was challenging Shirley once again. If she chose to tell the truth to Asbury’s lawyers then she would be guilty of another heinous sin for a police officer – helping a guilty suspect to go free. But if she lied and said nothing, he was indicating, then she might be able to work her way back into the service. Shirley became angry and upset in the interview when she realised this was yet another instance of persecution by senior officers. She asked to speak to her father alone, but she also knew instinctively that she had no option but to go on telling the truth, no matter the consequences. So she outlined to Asbury’s lawyers her own situation and they left, surprised but elated, for it was obvious that Shirley’s evidence would be helpful to their client. That fact simply added to Shirley’s distress.

  The interview with Asbury’s solicitors was quickly followed by another worrying development. When Shirley had gone on sick leave, a liaison officer had been appointed to keep in touch with her. Sergeant Hugh Mitchell, the son of an ex-colleague of Iain’s, had been performing the job with honesty and compassion, unlike almost all of his colleagues. On 8 May, he telephoned Shirley to pass on a request from the divisional commander that she attend an interview to be conducted by the discipline branch at Kilmarnock police office. Hugh Mitchell reassured her that he had been told that they only wanted to speak to her about the investigation into her denials. He was of course being lied to, but the lying went all the way up the chain, for, before the meeting, the divisional commander himself, when contacted by Iain, repeated the assurance that there was ‘nothing to worry about’.

  The reality turned out to be very different. It was obvious when Shirley entered the room that this was not merely another chat. She was informed that a disciplinary inquiry into the circumstances of the matter was now underway and she was served with the necessary disciplinary papers by Chief Inspector Wilson and Chief Inspector McLeod of the discipline branch. She returned from her interview in a state of shock, numb with fear.

  Her parents raged against Cameron’s duplicity and his failure to look after her interests, but Shirley was now reduced to complete helplessness. She seemed at times to have become almost childlike whilst Iain, feeling more strongly than ever before that his primary task was to protect his daughter, was reduced to impotence. He wanted to make her distress vanish and she wanted her dad to do just that. But he couldn’t.

  In fact things were worse than ever. Shirley was now under formal disciplinary investigation. Gossip and innuendo were rife – some were even speculating about her role in the murder – and were fuelling a situation which would lead to such a blackening of her name and reputation that no jury would ever believe her evidence, whether that was given in Asbury’s defence or her own.

  It was little wonder that Shirley’s health and sanity were deteriorating rapidly. She saw her GP regularly and Iain arranged for her to meet a private counsellor. She was prescribed beta-blockers and Melleril, a sedative used for psychosis and related disorders. Her whole family was concerned about her safety and she was seldom allowed to be alone at home. She still made efforts to get out and sometimes gained the strength to fight back for a short time but she would soon be reminded of her plight and she would sink back into despair. The date of David Asbury’s trial approached and she now knew for certain that she would be a witness for the defence.

  Shirley was summoned to appear in the High Court in Glasgow on Wednesday 28 May 1997. It was strange for her to be sitting in the witness room surrounded by others waiting to be called, as she usually went to court to give police evidence. Now she was going to tell a story her police colleagues didn’t believe and didn’t want to hear.

  Her call came. As she entered the court, she saw the trial judge, Lord Dawson, sitting in front of her, dressed in red, bewigged and impassive. She entered the witness box; to her left sat the jury. The prosecuting counsel, Advocate Depute Alan Dewar, and William Totten, the advocate for the accused, sat below her, surrounded by papers. The court was filled with members of the press and the public. Iain was in the public gallery, suddenly aware he was sitting amongst David Asbury’s family. His daughter seemed so vulnerable. He wondered how it had come to this – that his daughter, a police officer of great promise, was giving evidence in defence of someone he and she both thought was a brutal killer.

  The court usher placed a bible before Shirley. ‘Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?’ asked the judge.

  ‘I do,’ replied Shirley.

  As David Asbury looked on from the dock, Mr Dewar led Shirley through her actions as a police officer in a developing murder inquiry. Iain, watching from the public gallery, quickly took a dislike to his theatrical style. Dewar, it seemed, to him, specialised in insinuation. Oppressive and dismissive in turn, in a bullying tone he built up a litany of accusations. Watching him trying to destroy Shirley’s integrity, Iain had the first stirrings of that resentful, angry powerlessness which threatened to overwhelm him on many occasions over the next eight years.

  But Iain also saw something of Shirley that made him feel proud to be her father. Under extreme pressure, and in public, Shirley seemed to gain strength, not lose it. She gave her evidence calmly and confidently, looking Dewar straight in the eye no matter what he said. The questioning went on:

  ‘Do you accept that the fingerprint found there on the bathroom door is yours?’

  ‘No.’

  ‘Why not?’

  ‘Because I’ve never been in the house.’

  ‘Is it not the case, that in the present case your curiosity got the better of you and despite the instructions to the contrary you went into the property?’

  ‘No, I did not.’

  ‘And you placed your print on this door?’

  ‘No.’

  ‘As a police officer I take it I need hardly ask you that you know what perjury is?’

  ‘Yes.’

  ‘And in standing there giving evidence in as serious a trial as this you are maintaining that position, is that right?’

  ‘Yes. That’s because I don’t want to commit perjury.’

  This telling reply brought an end to this line of questioning but the advocate depute wasn’t finished.

  ‘I understand that certain disciplinary action has been instituted against you, is that right?’

  Now the rush to disciplinary action made sense. If the witness cannot be broken, the next tool for many advocates is character assassination, and the fact that Shirley was already under di
sciplinary charge when she went into the witness box was likely to damage her credibility all the more.

  And there was still more mud to throw. Dewar suddenly changed tack. ‘Can I ask you about another inquiry that you were involved in a few years ago in 1993, I think, concerning a child. You were, I think, productions officer, is that right?’

  ‘Yes.’

  ‘Was that evidence contaminated in any way by you?’

  ‘Yes. My fingerprint was found on a polythene bag in which the baby had been found.’

  ‘And did you wear [rubber] gloves in carrying out your work as a production officer?’

  ‘Yes.’

  ‘Is it not the case that something rather similar happened in the present case?’

  This was a clever move, for the mention of a child and some dubiety about how Shirley had handled such a sensitive matter was bound to affect the jury. It was later used again at her own trial, with even greater emphasis.

  But of course it was only part of the story. Shirley had freely admitted the problem when it occurred and, as we shall see later, the full facts when known completely exonerated her. But Mr Dewar was after impressions, not facts, and the impression he seemed to want to give was that she was a dishonest, incompetent police officer who could not be trusted and whose word was worthless.

  As Iain sat at the back of the court each day he was struck by what a game it all was. It seemed as though David Asbury didn’t even exist. The judge, prosecution and defence held the floor like actors playing their parts but there was no feeling of sincerity, let alone concern for the truth. In fact, the truth had no place in such trials unless it served the prosecution or defence case. The whole charade revealed the Scottish legal establishment to be an exclusive little club where everyone knew everyone else. The club’s goal was clear: the operation of the system to their benefit. The victim, the accused, and indeed justice itself, often seemed merely peripheral. The fact that Iain had once been part of this system began to give him cause for thought. It was the start of a process that would profoundly change his opinion of the law and make him reassess his thirty-year police career and what it had taught him.