The Price of Innocence

by Michael Russell

  On the morning of Wednesday 21 April 1999, Shirley entered the stark surroundings of the Glasgow High Court building, accompanied by most of her family. The family had been warned, as gently as possibly, that a guilty conviction would probably attract a fiveor six-year custodial sentence, which, Iain thought, would destroy not only Shirley, but probably him and the rest of the family too.

  From the beginning of the trial, Donald Findlay placed himself centre stage, but although still displaying an outward arrogance, by this time he had mellowed a little in Iain and Shirley’s company and that process had been assisted by the surprising strength of Pat Wertheim’s conclusions. Something of Findlay’s own vulnerabilities and his deep, contradictory nature had surfaced as he contemplated this very puzzling case which seemed to be making a victim out of a totally innocent woman.

  The advocate depute leading the prosecution was Sean Murphy QC, who sat quietly in court with his team. Outwardly he looked quite inoffensive, but of course, as Shirley knew, the power he represented was far from harmless.

  Shirley reported to the custody officer and soon she appeared in the dock, looking small and vulnerable, flanked by two police officers. The jury – seven men and five women – then filed in, looking apprehensive. The clerk called out ‘All rise!’ and Lord Johnston, resplendent in the robes of a Scottish judge, entered and looked down on the court before sitting down carefully. When he spoke to introduce the case, his voice was deep and resonant, with an air of establishment privilege. Educated at Cambridge, he had spent much of his legal career in the world of employment and medical tribunals, but he was renowned for his fair approach and attention to detail.

  The two opening addresses from Murphy and Findlay were conventional and outlined the case and Shirley’s rebuttal of it. Witnesses started to be called on that first day and amongst the early ones was Alan Dewar QC, the advocate depute who had prosecuted David Asbury and whose insinuations had so upset Iain and Shirley when she gave evidence in that trial. His attempt to discredit Shirley continued in the witness box. He was there to testify to how important Shirley’s denial had been, for the Crown argued that her alleged perjury could have resulted in the acquittal of David Asbury and, according to it, the thwarting of justice.

  Over the next few days, all the police officers who had been responsible for protecting the murder scene and ensuring that no one entered or left the house without being logged were brought to the stand and taken through their evidence. Obviously the hope was that one or more of them would say that they had seen Shirley go into the premises, or admit that they had been absent for long enough for Shirley to have made her way in unrecorded. Iain wondered how many of them had been given a talking to, or subjected to the same sorts of pressures that Shirley had experienced when she refused to admit that the print was hers. Perhaps one of them would turn out to be weaker than Shirley, and agree that he or she had seen or done something which would incriminate Shirley.

  Yet, to the great credit of those young officers, the questions produced only the truth. Not one of them had seen Shirley inside the house. Over the three weeks of the trial, nearly fifty police officers and forensic experts were to testify that Shirley had not been in the murder house when they were on duty.

  Next came evidence on the collection of fingerprints, blood, fibres and all the other debris found in the house. Much of this evidence was technical in nature, and at times it looked as if Lord Johnston was either snoozing or about to do so. With eyes closed and hands clasped he sat without moving, but when something significant was said it became obvious that he was paying close attention all the time.

  Such a moment came during the evidence of the officer Stuart Wilson. Earlier, the court had been told by Constable David Thurley how, on Thursday 9 and Friday 10 January 1997, he and his fellow scenes-of-crime officers Michael Moffat, David Ferguson and Graham Hunter had dusted for fingerprints at the murder house using aluminium powder. Mr Thurley had been examining the downstairs bathroom door surround near to where Mrs Ross’s body had been found. This process did not reveal the print subsequently claimed to be Shirley’s.

  Then Stuart Wilson recounted how, accompanied by Graham Hunter, he had redusted the door surround the following week using ‘black powder’, and that this had shown up the disputed print for the first time. Black powder, developed only in 1936, is noted for its coal-black colour and is used because it adheres to a latent print, but not to any background surface. In his evidence, Wilson offered the opinion that if the mark had been placed on the door surround after the aluminium powder (which was used on 10 January) then he would have seen it on top of the aluminium powder before he started to apply the black powder.

  Both Lord Johnston and Donald Findlay immediately grasped the significance of this view. Yes, Wilson agreed, if Shirley had been in the murder house and left her print, as alleged, then it must therefore have been before the aluminium powder was applied, and therefore before 10 January. Yet the prosecution had already conceded that this was not possible after having heard the evidence of the logging officers and the forensic scientists.

  Lord Johnston’s reaction to Wilson’s evidence was immediate and he took great care in going over and confirming with all the witnesses exactly what they had said.

  Every evening after they had returned to Iain’s home in Clarkston, the family would discuss the day’s evidence. That had been a gloomy process at the start, but by this stage they were beginning to dare to hope for the best. There had been a 24-hour police guard on the house from the moment Marion Ross’s body was discovered, and every police officer who had taken part in the operation confirmed that Shirley had never crossed that blue ring of steel. Now the scenes-of-crime officer had agreed that if she had been in the house, it had to have been before the first fingerprint examination. Yet even the prosecution accepted that that was impossible. Iain began to wonder if the prosecutors themselves would give up, faced with such clear evidence that the identification of the fingerprint was, in some way or another, now clearly seen to have been mistaken. However they had no such intention.

  As the second week of the trial began, the first of the two female detectives who had arrested Shirley was called to give evidence. Advocate Depute Sean Murphy QC led her through her testimony. She confirmed the early-morning knock on the door, her insistence on watching Shirley on the toilet and in the shower, the parading of Shirley through Ayr police station past her former colleagues, the instruction to hold Shirley firmly by the arm whilst she was processed by the duty officer, the intimate body-search and Shirley’s incarceration in the cells. These were all, according to the officer, routine procedures. There had been absolutely no malice; in fact their behaviour had been prompted by a caring concern, in order to prevent Shirley from harming herself.

  Donald Findlay stood up slowly to cross-examine the officer. Then, equally slowly and with cool and measured tones he took her evidence apart. Yes, she admitted, Ms McKie had been stripped to her underwear at the police station. Yes, she had been submitted to a full body-search at the police station. Yes, she had even watched her dressing at home, sat beside her all the way to the police office and accompanied her through the police office, during which time she spoke to and was contacted by no one. And yes, the charge was one of perjury.

  Again and again Donald Findlay challenged her to justify Shirley’s treatment, given this charge. Strip-searching, body-searching, intimate supervision, pinioning of arms . . . for perjury? Even Lord Johnston joined in, at one stage pushing his wig back and repeating Findlay’s incredulous words: ‘for perjury?’

  The defence lawyers could find no other instances of a police officer charged with perjury being arrested in a dawn raid and subjected to such humiliation. Every other officer in that position had been allowed to give themselves up at a chosen police office and at an agreed time, accompanied by their lawyer.

  Having made his point, Mr Findlay did not see a need to challenge the prosecution decision not to call Detective Superinte
ndent Malcolm, the architect of Shirley’s arrest and humiliation, to give evidence. Iain resented that fact, finding it frustrating that such an obvious bully should have escaped public examination for his actions, but Shirley accepted the good legal reasons for drawing a line at this stage.

  The day that Shirley dreaded the most came: it was the turn of experts from the Scottish Criminal Record Office to give evidence about their identification of her fingerprint. As a serving policewoman Shirley had regarded the evidence of such individuals as being tantamount to holy writ. Although she knew that they were wrong this time, most people in court – including the jury – would still, she was sure, view their evidence as infallible.

  Of the four experts who, according to the police, had signed off the print as being Shirley’s, only three gave evidence. One was ill and could not attend the court. Charles Stewart was the first to be called. A slightly stooping, grey character who looked like the archetypal scientist, he responded to the advocate depute’s opening questions by explaining the role of the SCRO as a centre of excellence for fingerprint identification and outlining his own role there. ‘Has the fingerprint identification evidence of the Scottish Criminal Record Office ever been successfully challenged?’ asked the advocate depute.

  ‘It has not, sir,’ he replied.

  After establishing from the witness that the fingerprint bureau was ahead of its time and certainly better than most, the QC asked Stewart about the chances of two people having the same fingerprint. Stewart replied that the possibility of a fingerprint recurring within the sixteen-point classification system was one in 10,000,000,000,000,000, or 1016. There was amazement on a number of faces at the jury bench. Clearly this was an impressive statistic.

  The advocate depute continued to take Stewart through his evidence and began to question him about an incident in 1993. Donald Findlay suddenly sprang to his feet, saying, ‘Don’t answer that question, officer. A matter of law arises, my Lord.’

  Lord Johnston instructed the jury members to leave while he heard argument from both QCs. The ‘matter of law’ related to evidence led by prosecuting advocate Alan Dewar during David Asbury’s trial that Shirley had once been accused of contaminating evidence by leaving her fingerprint on a polythene bag she had handled as a productions officer in a murder case in 1993. While Shirley had been sure she was wearing rubber gloves, at the time she accepted that given the SCRO evidence – evidence based on an identification done by Hugh Macpherson, the key SCRO expert in this case too – she must have been wrong. Dewar’s logic for bringing up this issue in the Asbury trial was to make the jury realise that she had been in trouble before for leaving her fingerprints where they should not be. Now Murphy wanted that information out in open court too.

  However, just before Shirley’s trial, Iain had passed Donald Findlay a copy of a Strathclyde police memorandum issued on 10 March 1998, which had been anonymously sent to him.

  The memo alerted officers to the fact that fingerprint impressions could be passed through the rubber gloves then in use by Strathclyde police and ‘strongly recommended’ that such gloves should be worn over cotton ones to ensure that there was no contamination of evidence. ‘Recent tests’, claimed the memo, ‘have shown that fingerprint impressions of the wearer can be pressed through these gloves, transferring a . . . fingerprint onto the item being handled.’

  It seemed clear that this information had been suppressed and that Shirley’s claim that she had been wearing gloves in the 1993 case was now vindicated. Indeed, Findlay had been waiting for the prosecution to raise the matter again so that he could make just that point.

  For the next hour the QCs argued the validity of this evidence, after which Lord Johnston ruled that the leading of the evidence was irrelevant and might equally be highly prejudicial to the defence. He sustained the objection and soon the jury were seated again.

  Stewart continued with his evidence. There was absolutely no doubt, he said, that the fingerprint he and his colleagues had identified as Shirley McKie’s was hers. There could be no argument as there was no possibility of mistake. It was as simple and definitive as that.

  Donald Findlay rose to cross-examine. As he had shown before, he was adept at lulling witnesses into a false sense of security, only to turn on them when they least expected it. He began by asking more about the sixteen-point system of fingerprint identification and his questioning was innocuous. Stewart explained that the system had been introduced as a standard basis for fingerprint evidence ‘in this country in the United Kingdom’.

  But then Findlay pounced. ‘That’s not entirely right, is it Mr Stewart? Not right at all.’ He went on to demonstrate his own knowledge of the science, eventually forcing Stewart to agree that the sixteen-point system had been introduced by New Scotland Yard when it had been taken in by forgeries from an expert called Bertillon.

  ‘So the sixteen-point standard was actually introduced because of deviousness, forgery or trick as it were,’ continued Findlay. Then, having raised the possibility that it might still be possible to deceive experts in this way, he continued by asserting that Stewart’s views on the probability of two fingerprints being the same were ‘neither realistic or helpful’.

  Findlay continued to chip away at the expert’s credibility by alleging that he could not see the similarities between the mark on the door surround and Shirley’s print, on which Mr Stewart had based his identification and his evidence. Then to add to Stewart’s woes, Lord Johnston proved that Findlay was not alone in this, adding that he too had great difficulty in seeing it: ‘looking at it with a magnifying glass it is just a fudge’.

  After nearly two days Stewart finally left the witness box, looking stressed and anxious. He appeared to know that he had not convinced the court and that his arrogance and inflexibility had been skilfully flagged up by Donald Findlay.

  After Stewart had finished, the court rose for lunch. Iain had left with the family, but he returned alone, taking a short cut through a nearby car park. There he observed what seemed to be a heated dispute between Stewart and his fellow expert Hugh Macpherson who was due to give evidence. Stewart was jabbing Macpherson in the chest with his finger and seemed very agitated.

  The next expert to go into the witness box was Fiona McBride. Of the experts, she had the least service and appeared even more hesitant and nervous than Stewart. Taken through her evidence by the advocate depute, McBride was extremely vague about exactly when and in what order she had carried out some of her examinations and whether she had signed certain productions. But of one thing she was sure – her identification was correct.

  Iain continued to be amazed at the poor quality of the photographic productions being discussed and failed to see how the jury could have any real idea of what was going on. He wondered just how often this pantomime had been repeated in the past with juries accepting the infallibility of the expert witness, despite being unable to follow their evidence.

  When Donald Findlay rose to cross-examine, Fiona McBride’s lack of experience was immediately exposed. She admitted that she did not attend conferences nor had she delivered any papers or published articles. Her expertise was based solely on her fourteen years of experience and yet she was willing to assert that she thought the system of fingerprint identification at the SCRO was ‘infallible’. When Findlay pushed her to confirm her identification of the print, McBride became more and more flustered. ‘I don’t want to express an opinion in court without my glasses and the correct size,’ she said.

  ‘You say’, countered Findlay, ‘you are unwilling to look at that and confirm what I suggest is obvious even to a layman like me . . .’

  McBride continued to prevaricate. ‘Yes, that is right, I am not willing to express an opinion on that in court.’

  ‘Well, there is no point in proceeding with that matter then,’ concluded Findlay, looking at the jury. They seemed to be getting the point.

  Hugh Macpherson, the last of the SCRO experts to take the stand, was no more impr
essive although absolutely resolute. ‘That fingerprint was the defendant’s,’ he stated and he would not be swayed from his assertion.

  The prosecution case then came to an end, and Findlay began Shirley’s defence. There had been much debate about whether she should give evidence, but she herself had been quite clear that her position would not waver no matter how distressed she became.

  She was called and Findlay reviewed Shirley’s police career, skilfully demonstrating that Shirley was a promising and very competent police officer who fully intended to make the police service her lifetime career.

  Then he took her through her part in the murder inquiry, step by step, clearly laying out the details of the murder investigation and the allegations against her. For the most part answers were confined to a simple ‘yes’ or ‘no’. He went out of his way to ensure the jury was well aware of the effect the past two years had had on her life. He also wanted to know whether Shirley had ever felt like telling a lie just to end the pain. ‘No,’ she replied. ‘You have no idea how I have been made to feel throughout this and the only thing that’s kept me going is the belief that I knew I was right and the support of my family and their belief.’

  All too soon, Sean Murphy rose to begin the cross-examination Shirley had been dreading. Yet, as had happened when giving evidence at the Asbury trial, Shirley grew in confidence as she spoke the truth. Her voice became clear and strong, she looked Murphy in the eye and there was a sense of peace about her. At such time she got strength from stating the facts in her own way. She was, for once, in control. Sean Murphy tried to make her admit a lie, then tried to make her admit a mistake. He eventually just tried to make her say anything that would diminish her in the eyes of the jury. He failed completely. Shirley resolutely denied all of the accusations he made.

  Donald Findlay had little more to do. He put it to her straight, ‘If there is a lack of truth in what you are telling us, if you are not telling us the truth, then honest to God, now would be the time to kill this once and for all. Are you telling us the truth?’