The Price of Innocence

by Michael Russell

  Eventually Mr Dewar finished his examination and Asbury’s defending counsel rose to cross-examine. Iain had expected a powerful performance, perhaps one that would create more problems for Shirley with her superiors, but one that would focus on the issue of fingerprint identification. Yet Mr Totten’s cross-examination was indecisive and half-hearted. He clearly did not believe that Shirley was telling the truth about her own fingerprint and he therefore seemed nervous about encouraging her to talk about the matter. His mind was as closed as that of Shirley’s senior officers and it showed in his actions: he made no challenge to the credibility of the Scottish Criminal Record Office experts, he undertook no inquiry into the records kept by the police cordon at the murder scene (which would have shown that Shirley did not enter the building) and he developed no line of questioning to intimate to the jury that if Shirley was speaking the truth then the other fingerprint evidence could also be wrong.

  The best theory he could offer was the suggestion that the biscuit tin found in Asbury’s bedroom had been taken to the mortuary and the print transferred to the tin from Marion Ross’s lifeless fingers. Yet he had no evidence that this was the case and the fingerprint officers were adamant in their assertions that the prints had all been correctly identified.

  The failure of Asbury’s defence to address the possibility that the core fingerprint evidence was flawed was perhaps understandable. It would be another two years before Shirley’s trial and the revelation that fingerprint evidence might be successfully challenged on the basis of misidentification. The mindset of Asbury’s defence team, and indeed of the whole Scottish legal establishment, was that fingerprint evidence was infallible.

  Shirley left the witness box after nearly three hours and, despite her strong performance (or perhaps because of it), she was virtually in a state of collapse when Iain met her outside the courtroom. Part of the problem was the overwhelming fear that she might be arrested for perjury when leaving the High Court. This did not happen but on the pavement outside Iain and Shirley were faced with a mêlée of reporters and cameramen, all shouting, all wanting pictures and all determined to get what they demanded. But they had already decided to say nothing and hurried away, pursued up the street by the journalists.

  The following morning Iain Ferguson in the Daily Record reported the court drama under the heading, ‘Lies warning for girl cop in murder trial. Fingerprint riddle: I wasn’t in death house, says detective.’ The story went on: ‘A detective yesterday told a court she didn’t visit a murder scene – despite the fact her thumbprint was found there. And Constable Shirley Cardwell was warned of the dangers of perjury. She denied seven times that she had visited the home of 51-year-old victim Marion Ross.’

  A few days later the jury reached its unanimous verdict: guilty. Asbury received – as he had to – a mandatory life sentence. Few, if any, of those who observed or read about the trial were surprised, given that fingerprint evidence had been used to secure the conviction. As the Daily Record reported, a vicious killer seemed to have been brought to justice. ‘Police who interrogated Asbury were shocked by his coldness.’ One said, “He appeared to be devoid of pity. The whole episode was of annoyance value to him – he thought it was just a joke.” ’

  The coverage of Shirley’s role in the trial rekindled the fears that had been eating away at her for months: ‘Girl Cop Faces Sack as Psycho is Caged’, ran one headline.

  Police briefing had added to the impression given by Mr Dewar that she was at best seriously deluded and at worst a perjurer whose actions to protect herself had helped the defence of a violent killer. Fortunately, so the police spin went, the quality of police work had stymied that horrific possibility, despite Shirley’s actions. She was clearly a ‘rogue cop’ and, the police sources were implying, there was no place in the force for such an officer.

  Shirley’s fears about being charged on the steps of the court after her evidence were not that fanciful. If senior officers believed that she had committed perjury, the logical outcome would be a criminal charge. Yet, as the weeks passed and the immediate impact of Asbury’s trial receded, nothing happened. She remained on sick leave but Strathclyde Police made no attempt to drive forward either the disciplinary process or the legal sanctions. For Shirley, the inaction of her employers was becoming more and more ominous.

  She realised that the pressure on her was becoming intolerable and that she needed help to avoid a full breakdown. She requested that the police doctors refer her to a clinical psychologist and as part of that process the chief medical officer of Strathclyde Police, Dr W. D. S. McLay saw Shirley during June to make an assessment. In a later letter he described his findings: ‘She felt isolated and unsupported. Her doctor . . . had even suggested that she should consider leaving rather than be subjected to further stress . . . Among the symptoms she experienced were poor concentration, loss of confidence and diminishing weight . . . He [her doctor] had prescribed beta blockers . . .’

  Yet despite these observations, Dr McLay refused a referral. So Shirley took matters into her own hands and booked a personal appointment with clinical psychologist Zena Wight in Ayr. This was to be the start of five years of meetings with Zena.

  Then suddenly Dr McLay changed his mind and arranged for Shirley to be seen by one of Scotland’s leading clinical psychologists, the head of the Department of Psychological Medicine at Glasgow University, Professor Colin Espie. The examination was carried out on 30 July. The professor had been told to respond only to Dr McLay and Shirley heard nothing more. Little did she know how important this assessment would turn out to be, for Professor Espie had been convinced of her innocence and had written a report which said so clearly and concisely. Although this would lie hidden in her file in Dr McLay’s office for nearly five years, Professor Espie himself would come forward in her support at a later date, and do so in a crucially important way.

  But all that was in the future. Now there was still the unanswered question for Strathclyde Police – what should be done with Shirley?

  In August 1997 Dr McLay wrote once more to Shirley. Although he had seen the Espie report, he did not mention it or its contents. Instead he informed her that he was preparing a report about her condition for Assistant Chief Constable John Duncan. Iain had considered John Duncan, like many of the police officers he had worked with over the years, to be a friend. As he was to find out, for some there was little room for personal friendship when loyalty to the force might be called into question. The doctor wanted to know, as a matter of courtesy, whether she wished anything included and it is worth quoting Shirley’s reply in full, for it summarises exactly where she felt she was almost nine months after that fateful day when Marion Ross had been found dead in her Kilmarnock bungalow. She wrote:

  Dear Dr McLay,

  I refer to your memorandum dated 21 August. The origins of my condition, I feel, lie in the treatment I received, primarily from senior officers who treated me as a criminal. In so doing they pre-judged the issue and cast severe doubt on my honesty and integrity.

  They effectively challenged and impugned my whole character as a human being and a police officer. Had it not been for the continued support of my family and friends the personal consequences would have been much more serious.

  The fact that there was a criminal trial involved in this matter was in my opinion purely secondary in causing my distress and anxiety.

  Whilst the points you make in your memorandum are relevant, I feel the root of the problem lies in the initial and continued poor treatment by senior officers towards me. I would be grateful if you would try and incorporate some of the above comments in your report to ACC Duncan.

  The report went to ACC Duncan but still nothing happened. Shirley carried on receiving medication and found her visits to Zena Wight helpful. She still wanted to return to work, and as time passed she thought that doing so might be the best way to restore her psychological and physical health too.

  4

  Shirley’s Arrest


  Day 420

  As the summer of 1997 passed Shirley became more and more determined to return to work, believing that it would be a strong antidote to the alienation and depression she was suffering. She hoped that once she was there her superiors would see that she was not the rogue cop they seemed to think she was.

  However, those superiors remained adamant that she could not take up her duties as a detective constable again whilst the disciplinary process continued, although no one was willing to say exactly where that process had got to, or where it was headed. Apparently the matter was being considered by the Crown, which meant that the Crown Office, in charge of all criminal prosecutions in Scotland, was weighing up whether or not she should be charged with perjury. Until that was finished, there would be no decision on internal police disciplinary action. Her superiors also rejected her request to go back into uniform.

  There seemed to be a stalemate until, one day, an offer was made. She could, given her fondness for and knowledge of horses, take up a temporary post as a ‘strapper’ – someone who was involved in grooming the mounts, cleaning the stables and supporting those officers who appeared on horseback to control crowds or undertake ceremonial duties. Perhaps the offer was made tongue in cheek, but Shirley jumped at it. She needed something to do outside her home.

  The Mirror was among a number of newspapers who reported Shirley’s job move: ‘Murder Riddle Cop Back in the Saddle’ was the headline. The article outlined Shirley’s return to work – ‘A cop whose “bizarre” behaviour could have let a potential serial killer walk free . . . has been handed a dream posting to Strathclyde’s mounted division’ – and confirmed the story’s provenance with ‘a senior police source’ reported as saying, ‘We are all stunned by this. The mounted division is one of the most sought-after positions in the force. Her actions put the case at serious risk. It would have been a disaster had Asbury walked. In our opinion he was a serial killer in the making.’

  Of course there was not the slightest evidence that Asbury had ever been considered a potential serial killer. The irony of it all was not lost on Iain. He knew Shirley was an experienced and intelligent police officer who had steadfastly stuck to the truth, despite the oppressive bullying from some of her senior officers. Now the only job they could find for her was shovelling horse shit. A dream posting indeed!

  During the winter of 1997, Iain went to see his daughter at the police stables from time to time. His visits left him angry and frustrated. While Shirley seemed glad to be working again in association with the police, if not as a full part of them, it was obvious that she was being deliberately isolated from her colleagues and from those whom had she had regarded as her friends. And so she was cut off from the camaraderie of the force which can often help officers who are experiencing difficulty. Shirley wryly observed one day that the only regular conversations she had, apart from with her family, were with the horses. But on the positive side, she appeared to be settling down, she was less reliant on medication and as the days passed without any further indication of action by the police authorities, her hopes rose that the worst was now behind her.

  Whilst working at the stables and waiting for decisions to be made about disciplinary action, Shirley did not give up on her attempts to return to her old job, or at least to some real police work. As Dr McLay’s written discussion with the personnel department observed, officers in similar situations often experienced a deterioration in personality. Shirley, however, he noted, ‘was a conspicuous exception in that she had not taken refuge in sick leave’.

  Yet as 1997 came to an end, the lack of a decision from the Crown Office (more than six months after Shirley had appeared as a witness in the Asbury prosecution) and her clear determination to fight on and return to the job she loved encouraged Iain and Nancy to believe that the police might have seen sense. Perhaps normality would return.

  Winter turned to spring, but still nothing happened. Then on 5 March, on the day Iain and Mairi left for a short and much-needed break in Ireland, Shirley had a surprise visitor at the stables. Dr McLay turned up unannounced and stayed for about fifteen minutes, during which time he was very evasive and would not say why he had decided to call. Shirley had never had such a visit from him before. He asked her about her medical, psychological and emotional states and she stressed to him that she found working a good way of keeping her depression at bay. She also reiterated her desire to return to proper police work but he did not respond to that point.

  Shirley assumed she was giving all this information in the confidence of a patient-doctor relationship. Dr McLay did not offer any reason for his visit outside a medical context, nor did he give her any indication that the details of her discussion with him might be passed on to others. Yet on returning to his office, Dr McLay immediately submitted a confidential report to Deputy Chief Constable Jim Richardson about his discussion with Shirley. It seemed he had been asked to assess Shirley for a reason and that reason became obvious when he reassured Mr Richardson that ‘there was neither medical nor psychological reason why action should not be taken against her’.

  The following morning – 6 March 1998 – Shirley was woken at about 7.30 a.m. by the telephone. She answered and the caller hung up. A few minutes later there was a heavy knock on her door.

  Standing in the doorway was Superintendent Malcolm, waving an arrest warrant in his hand. Two female detectives whom Shirley recognised, Sergeant Morris and Constable Faulds, were standing behind him, and they quickly pushed past Shirley into the house.

  Shirley was seized with fear, but tried to compose herself. She was instructed to get dressed in order to accompany the officers to a police station. Despite her protests, she was not left alone for a second, and was watched by one of the female officers as she used the toilet, showered and put on her clothes. Then she was escorted out of her home, placed in an unmarked police car and driven straight to Ayr police office. There, colleagues who tried to speak to her as she passed through the main reception were brusquely told by her arresting officers to clear off.

  At the ‘charge bar’, Superintendent Malcolm pointed to a notice on the wall which intimated that prisoners should be held securely by the arms when being processed. ‘You had better hold her then,’ he growled at Sergeant Morris and Constable Faulds, who did as they were told as the charge was read out:

  On 28 May 1997 in the High Court of Justiciary in Glasgow, Shirley Jane McKie, being sworn as a witness in the trial of David Asbury, then proceeding in said High Court of Justiciary upon an indictment at the instance of Her Majesty’s advocate against him, deponed that she did not between 8 January 1997 and 14 January 1997, or on an earlier date unknown, enter the premises at 43 Irvine Road, Kilmarnock, the truth being she knew that she did enter said premises.

  Despite having been watched at every moment since she had been arrested, and despite having been accompanied everywhere by the three police officers, she was told that she would now be subjected to a body-search, which involved Shirley stripping to her underwear and having her breasts and genitals inspected by the female officers. Such a search usually takes place when charges related to drugs or other substances are involved. It is unknown in cases of perjury or so called white-collar crime, a matter that did not escape the comment of Lord Johnston at Shirley’s trial. The body-search, under Superintendent Malcolm’s direct supervision, was performed only to intimidate and humiliate Shirley.

  Afterwards, she was notified that she had been formally suspended from duty. Once photographed and fingerprinted, she was driven to Glasgow Sheriff Court and locked up in a cell until her appearance in court, over four hours later.

  During those four hours Shirley sat alone, numb and desperate, sobbing uncontrollably. The only people listening were her fellow prisoners in the adjoining cells. ‘Don’t let the bastards get you down, hen!’ one shouted kindly, not knowing, of course, that Shirley was a police officer, and therefore one of ‘the bastards’ herself. Iain was on a ferry returning from Irela
nd with Mairi when Shirley eventually phoned, having been freed on bail. ‘Dad, I’ve been arrested and charged with perjury,’ she managed to say before bursting into tears again. Then she blurted out the whole story of her arrest.

  A few hours later, Iain and Mairi joined Shirley in Troon. Everyone was crying. There seemed little else to do. The next day, Shirley’s medication was increased. The family members agreed amongst themselves to make sure she was constantly watched – everyone was afraid she might attempt to take her own life, so depressed and desperate was her mood.

  Over the next weeks, whenever Shirley turned to Strathclyde Police for help, she was shunned. For example, she quickly made an application, via her lawyers, to the deputy chief constable of Strathclyde, Jim Richardson, for funding to defend herself against the perjury charge. This was denied, Richardson’s reply, dated 27 March 1998, reading ‘my reason for refusing your application is that you were not acting in good faith in the intended execution of your duty’.

  Obviously, in refusing the application, DCC Richardson was prejudging the entire issue, seemingly oblivious to the principle of ‘innocent until proven guilty’. The whole case hinged upon a difference of opinion regarding whether or not she had been acting in good faith in the execution of her duty; to withhold the help which would allow her to prove her side of the matter was inexcusable.

  Subsequent meetings with the Police Federation were also unsatisfactory, with the secretary of the Strathclyde Police Federation concluding that any appeal against DCC Richardson’s ruling was unlikely to succeed. Loss of that appeal would also severely threaten Shirley’s defence at the High Court. Without a defence Shirley would end up in prison, lose her job and her pension, and forever be seen as a criminal.