The Price of Innocence

by Michael Russell

  ‘Yes,’ declared Shirley.

  ‘Have you ever wavered from that?’

  ‘Never.’

  It now seemed clear that the prosecution had failed to blacken Shirley’s name, despite their insinuations. But that was not the same as proving her to be innocent, so the next day’s evidence from the American experts Pat Wertheim and David Grieve was likely to be absolutely crucial.

  The moment Pat Wertheim entered the witness box, his slow Texan drawl and confident manner caught the attention of everyone in the courtroom. The contrast with the halting, defensive approach of the SCRO could not have been greater – here was a master of his science who had trained experts throughout the world and who was more than able to lead the court through the complexities of fingerprinting.

  After questions that dealt with his impressive CV, Mr Findlay quickly brought Wertheim to the point, asking him whether he thought the fingerprint had been made by Shirley’s left thumb.

  ‘Definitely not . . . absolutely not.’

  ‘And of that you are absolutely certain in your own mind?’

  ‘Absolutely certain!’

  The American’s evidence was a master-class in fingerprint identification, of a type that few Scottish courts had ever experienced. His charts and images were clear. Aided by Donald Findlay’s perceptive questions, he used them to show, step by step, how he had reached his conclusions regarding the false identification by the SCRO. Hour after hour, he patiently explained everything; even when being provoked, he made the process of analysis crystal-clear. Gradually he destroyed the SCRO evidence.

  It was soon obvious that Lord Johnston was fascinated by what Wertheim had to say. He asked a series of insightful questions which allowed the Texan to elaborate on his evidence and occasionally Wertheim left the witness box in order to better explain his various charts and drawings to Lord Johnston, the QCs and the jury. When he had finished there was almost a sense of regret in the court, and Shirley was beaming for the first time during the case.

  Sean Murphy then attempted to undo the damage to his case. He suggested to the witness that fingerprint evidence was only subjective opinion and depended on the expert’s judgment. He also tried to insinuate that because Pat had been a police officer he was somehow not the experienced expert Donald Findlay had painted him to be.

  Whilst the advocate depute had clearly done his homework, it was becoming clear that the only real weapon the prosecution had was to denigrate the competence of the witness in order to try to shake his conclusions. As the examination continued, however, this was looking like a somewhat unwise strategy, as it merely gave Wertheim further opportunity to display his expertise and show just how weak the SCRO experts’ evidence had been.

  Then David Grieve was called. Neither Iain nor Shirley had been allowed to meet him, but Iain recognised him as the tall man who, for the past few days, had been standing outside the court entrance chain-smoking.

  The contrast with Pat Wertheim could not have been greater. Instead of Texan showmanship, he displayed quiet, Midwestern academic intelligence. An expert for thirty-two years, Grieve had delivered training courses throughout the USA and in Europe, Taiwan and Israel. In establishing his credentials, Findlay dramatically read through the pages of conferences, seminars and courses at which he had made presentations or given papers. Past member of the Canadian Identification Society, president of the International Association for Identification, member of the Fingerprint Society of Great Britain, editor of the widely respected Journal of Forensic Identification – the list went on and on. Findlay made sure that the jury was aware of every single qualification, distinguished contribution and honour. It contrasted hugely with, for example, McBride’s cocooned life within the SCRO. Grieve, as he spoke, appeared to be challenging anyone not to agree with such reasonable and obvious analysis. His intelligent courtesy was clearly wrapped around an iron resolution and confidence in his own judgment.

  This time Murphy mounted no challenge to the expert’s qualifications and try as he might, with question after question, he could not shift the expert from his unequivocal opposition to the SCRO identification.

  Grieve was the final witness and it was time for closing statements from the QCs. Following these Lord Johnston began his address to the jury. The courtroom seemed charged with anticipation. The press, which had been present throughout what was an intriguing, if difficult-to-understand case, now appeared to think that something unexpected might be about to happen. The unprecedented rebuttal of official fingerprint evidence was creating an ever-widening buzz.

  Lord Johnston’s address was clear, logical and easily understood and it contained many challenges to the Crown’s evidence. Johnston’s first question was the obvious one: ‘If this is Miss McKie’s fingerprint, how did it get there and when did it get there?’ He pointed out that if the fingerprint had been in the house before the 10 January, then the Crown case would fail, so the issue of the fingerprint was the ‘first hurdle’ that the prosecution must surmount. The ‘second hurdle’ he described in this way: ‘Why would Miss McKie do this and stick to her position from day one, moment one . . . why should Miss McKie, for two years, against obvious pressure, in an isolated and lonely position, adhere as firmly as she has done to the denial of any involvement with the fingerprint?’

  He instructed the jury that they must be satisfied beyond reasonable doubt that she did enter the house, for only then would they be able to come to the issue of the fingerprint itself.

  If the jury, as he put it, ever got ‘this far’, then they must assess the fingerprint evidence by using their own eyes. He told them, ‘You have the photographs, you have the prints; make your own comparisons, you’re quite entitled to do so . . . if somebody says a blob contains something, you can accept that if you believe them. But, on the other hand, where the two comparisons with your own eyes reveal mismatches, then you have to start, I suggest, being seriously concerned about whether this really is Miss McKie’s print.’

  He then dealt with the conflict in evidence between the SCRO and the American experts, dealing first of all with the issue of distortion in the top third of the print, which had featured heavily in Pat Wertheim’s presentation, and which the Crown witnesses had dismissed, offering no reasons for why they were doing so other than, ‘It’s my opinion,’ or ‘It’s my judgment.’ ‘On the other hand,’ Lord Johnston reminded the jury, ‘what do the Americans do, particularly Mr Wertheim? He says you look at the prints and you find immediately, without more than a casual . . . glance, that there are mismatches between the top half of both prints. What does he do? He says, “Well, that places me immediately in doubt.” . . . But he doesn’t say, “It is my judgment.” He goes on to say, “I look for” – his words – “warning signs, signs of blurring, signs of movement.” . . . He finds none. So, what does he do? He goes back to his first base and says, therefore, this is a mismatch. And he bases that on reasons, not just judgment.’ He concluded by asking the jury to give ‘very serious consideration’ to whether or not they could safely say that the Crown, on the basis of their evidence, had established beyond a reasonable doubt that the print was that of Miss McKie.

  The jury retired at 10.26 a.m. on 14 May 1999, Iain’s sixtieth birthday. The trial had lasted over three weeks. It was 856 days since Marion Ross had been found dead in her hallway.

  Iain, Shirley and the family walked to the cafeteria in the court. An hour passed. Would it be a good sign or a bad sign if the jury was quick? Iain kept pacing back and forth. Shirley sat with her head in her hands, Nancy and Mairi stroking her back. Shirley’s siblings waited anxiously with other members of the family and Shirley’s friends. If found guilty, she was likely to be taken straight into custody from the dock, so this could be the last time they would sit with her for a while.

  They were told to return to court at 11.51 a.m. – the jury was coming back after less than an hour and a half. Was that good or bad?

  The men and women filed in with their heads d
own, giving nothing away. Shirley sat shaking, the pressure suddenly too much. Iain mouthed a silent prayer, ‘Please God, save my daughter.’ The clerk of the court spoke. ‘Ladies and gentlemen, will the person who speaks for you please stand.’ A man from the jury rose to his feet. ‘Have you agreed upon a verdict?’

  ‘Yes, we have.’

  ‘What is your verdict in respect of the accused Shirley McKie on the indictment?’

  For Iain and the family time stood still. Shirley said afterwards that she was too scared even to breathe.

  ‘Not guilty.’

  There was a moment of absolute silence. Then Iain shouted out, ‘Yes, yes, yes!’

  There was chaos in the public benches. Shirley looked up. Lord Johnston stilled the court with a kindly admonition, for the matter was not yet over.

  ‘Is that verdict unanimous or by a majority?’

  ‘Yes, it’s unanimous.’

  ‘Ladies and gentlemen, is your verdict correctly recorded as follows: the jury unanimously find the accused, Shirley Jane McKie (also known as Shirley Jane Cardwell) not guilty. Is that correct?’

  ‘Yes.’

  But even now, Lord Johnston had not finished. He turned to address Shirley directly and smiled as he said, ‘Shirley McKie, it’s not appropriate for me to comment on the jury’s verdict, nor to comment upon how you find yourself in the situation you have found yourself in, but personally I would like to extend to you my respect for the obvious courage and dignity which you’ve shown throughout this nightmare, as you’ve described it. I very much hope you can put it behind you. I wish you all the best. I discharge you and you’re free to go.’

  ‘Thank you,’ was all Shirley could manage in reply.

  The jury filed out, Iain mouthing the words ‘thank you’ as they did so. Some of them were crying, and some smiling. One shouted, in clear defiance of court practice, ‘Good luck to you!’ He was not rebuked.

  Then there was a memorable moment. Advocate Depute Sean Murphy walked across the floor towards Shirley. He said, ‘Good luck,’ and quickly left the court.

  The rest of the day passed in a whirl. Press pictures showed Shirley’s elation as she left the court building flanked by her overjoyed parents, her family and her friends. Even lawyers and ordinary policemen outside the court were grinning at such obvious happiness and relief.

  Shirley was sure that it was all over and that shortly she would be welcomed back into the police force. Iain was certain that soon the chief constable or the personnel office would write a letter and Shirley would be able to resume her career. All that was needed was for someone to say a mistake had been made and that they were sorry for it. It was now proved – legally proved – that Shirley had never been in the house and that the fingerprint was not hers. Life could get back to normal.

  That was how things stood on day 856, and day 857, and for several more days and weeks. But no letter came. In fact Shirley’s ordeal was not even half over and there were many difficulties still ahead.

  For example in early May 1999, just before Shirley’s trial, Iain had received information from a trusted journalist that ‘a senior police officer involved in the Marion Ross inquiry’ had briefed the press, alleging that Shirley had indeed been in Marion Ross’s house having sex with a police officer who ‘fancied her’.

  Other lurid and graphic details were provided, but Iain was also told that journalists had been rightly sceptical, and the information given at this briefing was never published. With the trial rapidly approaching, the matter was forgotten, but after the trial, when the family were recovering from the most dramatic three weeks of their lives, Iain received a phone call.

  The caller’s voice was familiar to him, as was his name. Bill McFarlan had been a Radio Clyde reporter in the early 1980s, when Iain was media relations officer for Strathclyde Police, and had gone on to become well known as a TV news and sports presenter.

  Bill told Iain that his wife Caroline had recently shown him an article about Shirley, in which she noticed a mention of Detective Chief Inspector Stephen Heath.

  ‘I could scarcely believe it,’ Bill told Iain. Since 1993, Bill had been fighting to reveal the truth about the role Heath had allegedly played in the discrediting of actor Eric Cullen who played Wee Burney in hit BBC comedy series Rab C. Nesbitt. Now Heath was in the middle of another allegation of injustice.

  Iain well remembered the controversy when actor Eric Cullen was jailed for possession of pornographic material, but eventually released following a high-profile campaign by Bill and Caroline McFarlan, journalist Dorothy Grace Elder and others convinced of his innocence. Tragically, Eric Cullen died in August of 1996, unaware that the BBC had decided to reemploy him as Wee Burney and that in most fair-thinking people’s eyes he had been severely mistreated.

  What Bill went on to say in his phone call to Iain was chilling. He claimed to have evidence that Heath had been engaged in a briefing campaign against Eric Cullen and he feared that ‘dirty tricks’ might also come into play in Shirley’s case too.

  Iain and Mairi met the McFarlans several days later at their Glasgow home, where Cullen had taken refuge three years earlier. What they had to say about Detective Chief Inspector Stephen Heath was explosive, as was the documentary evidence they produced to support their theories.

  Bill explained that in January 1995, just before Eric Cullen was to appear in court, Frontline Scotland agreed to make a programme about the injustice being done to him.

  On 11 January 1995, a TV crew spent almost seven hours interviewing Eric Cullen. The following day the crew was filming with Eric’s parents when executive producer Val Atkinson rang to tell them to stop filming immediately. Later that day, Val phoned Bill to warn him that she had heard from a reliable source that Eric had abused children. She refused to reveal her source to him.

  A few days later, Bill was phoned by a Herald reporter who asked him to comment on the news conference held the previous day at Strathclyde Police headquarters by Detective Chief Inspector Stephen Heath. He claimed that Heath had led journalists to infer that Eric Cullen had been a partner in crime to Francis Currens, a paedophile whom Eric reported to the police as having abused him. The previous year, Currens had been jailed for fourteen years for the sexual abuse of boys and sent to Peterhead prison.

  ‘I knew this was a lie,’ Bill told Iain and Mairi, ‘as Eric had been one of Currens’ victims. I couldn’t believe that they could have pulled off such a stunt just three days before Eric was due in court, but the facts were confirmed when Dorothy-Grace Elder and I contacted Herald reporter Jim Freeman, Yvonne Dickson from Radio Clyde and Frontline Scotland’s Dorothy Parker, who all attended Heath’s conference.’

  The police briefing poisoned the media against Eric Cullen. Some tabloids had a field day, labelling him ‘child-porn pervert’ and ‘Wee Pervy’. His career and life were effectively destroyed.

  Bill had then discovered from Strathclyde’s deputy chief constable Jim Richardson that on the day Val Atkinson withdrew the Frontline Scotland camera team, Heath had briefed her on the case. Bill pressed on with his inquiries and eventually got the lord advocate of the time, Lord Mackay of Drumadoon, to confirm what had happened and to say on record that he understood that Strathclyde Police had assured the regional procurator fiscal that steps had been taken to ensure that no such situation ever arose again.

  Thanks to the McFarlans, it was now clear to Iain that the old police culture still existed and that there were officers who would stop at nothing in order to bring Shirley down. Getting back to normal, as Shirley kept putting it, was not going to be as easy as she thought. But no one guessed that in the years of bitter struggle still to come former colleagues would once again make use of these sordid lies in order to blacken her name.

  6

  Christmas 1999

  Day 1,081

  Once the elation had died down, Iain and Shirley decided to look more closely at the outcome of the trial to see whether it gave any clues to what had driv
en the prosecution and what might have happened in terms of the mistaken fingerprint.

  It was obvious from everything that Lord Johnston had said that he had severe reservations about Shirley’s prosecution. More than once he had observed that an issue should be reviewed after the trial. The flimsiness of the SCRO case, the complete lack of evidence that Shirley had ever been in the murder house, the testimony of Stuart Wilson, a scenes-of-crime officer, which ruled out Shirley being in the murder house at the times alleged by the prosecution, were all signs that from the beginning the prosecution case had been full of holes. Yet the Crown Office had allowed it to proceed.

  The trial transcript showed that in his charge to the jury, Lord Johnston took almost three pages to deal with the fingerprint evidence. Within the strictures placed on a judge to remain impartial, his comments are remarkable for the way they cast doubt on every aspect of this evidence. The conclusion of the case had shown that, without a doubt, the fingerprint had been wrongly identified by SCRO ‘experts’ Charles Stewart, Fiona McBride and Hugh Macpherson, who gave evidence at both trials, and Anthony McKenna who had been ill and did not appear as a witness. In addition, there was clear confirmation from the trial that Shirley had indeed been persecuted, isolated and abused by senior police officers from the start of her ordeal. Something would need to be done to right to those wrongs, and the best step forward, as far as Shirley was concerned, would be for Strathclyde Police to make speedy arrangements for her to return to the work she wanted to do.

  Yet whilst this was Iain’s priority too, he also wanted to make sure that the lessons learned from her experience were not forgotten. He thought long and hard about his next step and then, on 9 June 1999, three weeks after Shirley’s acquittal, he drafted a letter to Lord Hardie, the lord advocate at that time, in which he laid out his thoughts about the way forward.