The Price of Innocence

by Michael Russell

  That letter might be said to be the start of Iain’s wider campaign for justice, a campaign that would run for the next seven years. His first priority was get his daughter reinstated and then, when that eventually became impossible, to get her the compensation she deserved. But beyond that, he knew, there were other issues that needed to be resolved.

  In his letter, Iain emphasised that Shirley’s costly prosecution had been flawed from the beginning. ‘I am left with the inescapable feeling that the prosecution appears to have been oppressive in the extreme,’ he wrote. ‘Much of this evidence should have been tested properly and objectively before such a costly prosecution was initiated.’ He went on to ask whether the SCRO staff responsible for the misidentification of the fingerprint were still working as Crown experts, whether their findings had been reviewed by independent experts, whether steps were being taken to prevent ‘other potential miscarriages of justice in respect of fingerprint examination, identification and the presentation of fingerprint evidence in the Scottish courts’. Iain stressed that these matters had considerable significance for the prosecution of crime in Scotland, and for the protection of innocent citizens.

  It took more than a month for the Crown Office to reply but eventually on 12 July Andrew Miller in the law officer’s secretariat responded. His reply was even more negative than Iain had expected. The lord advocate, wrote Mr Miller, ‘does not propose to publish the details of his investigations . . . [nor] to prevent the citation as prosecution witnesses [. . .] of the officers from the Scottish Criminal Record Office who gave evidence in this case . . . [nor] to instruct review of the findings of those officers in relation to other cases’.

  There was no recognition that the SCRO fingerprint evidence had been comprehensively rejected by judge and jury. There was no acknowledgment of Lord Johnston’s concerns about matters such as Shirley’s treatment by the police or the method of her arrest. In other words, thought Iain, the Scottish legal and political establishment had closed ranks. After the euphoria of the acquittal, Shirley and Iain were faced, once again, with the same arrogant and complacent behaviour that had so typified the case from its earliest days.

  But worse still, Mr Miller went on to assert that there were ‘other areas of the evidence which were in dispute and may have influenced the jury’s verdict’, which clearly implied that the verdict was not accepted by the Crown Office.

  Of course, the SCRO were also pushing this argument in order to muddy the water in their favour. In mid July, Superintendent Brian Gorman of the SCRO wrote to Chris Coombes, director of identification at New Scotland Yard, stating that ‘there were other areas of evidence in this case which were challenged by the defence’ and concluding that it might have been those areas that determined the jury’s verdict, rather than their rejection of the fingerprint evidence. After reassuring him that all was well within the SCRO, Brian Gorman warned Mr Coombes against ‘a great deal of disinformation’ which was being circulated.

  There was further confirmation that this official line was being coordinated across the agencies in a letter dated 8 July from Sir Roy Cameron, chief constable of Lothian and Borders Police, to the Police Federation, which had written to him expressing concern at the implications of Shirley’s case. On behalf of the Association of Chief Police Officers in Scotland (ACPOS), he reassured his colleagues in the lower ranks that everything was fine, insinuating that the verdict had more to do with the vagaries of the jury system than with any problems at the SCRO, which of course was supervised by the ACPOS.

  It was already obvious to Iain and to a growing number of journalists that the case had produced real concerns amongst lower-ranking police officers and some defence lawyers, as well as in the wider fingerprint community. Letters similar to those from Superintendent Gorman and CC Cameron were being sent to fingerprint agencies throughout the UK and also to ones overseas. Letters to the Israeli police, to the forces in Northern Ireland and the Republic of Ireland and to senior officers in England all contained the same reassuring message. Criticism of the SCRO or the Scottish justice system was firmly rejected. It was made clear that there would be no inquiry and few, if any, changes.

  However, it was not proving possible to allay all concerns. For example, in late August the head of the SCRO, Harry Bell, received a letter from the Devon and Cornwall constabulary, in which the head of the fingerprint bureau revealed that he had seen copies of the mark and Shirley’s print as used in the SCRO identification. From these copies he concluded that ‘the two were not made by the same person’ and that he could not come to any other conclusion about this. Bell acknowledged the letter of disagreement. Ominously it was filed away and no action was ever taken to examine how the English expert had reached his conclusion. Instead efforts were redoubled to ensure the ‘original’ material was kept hidden.

  The availability of information on the internet had been Shirley’s saviour when looking for a truly independent fingerprint expert. Now the internet helped in another way because, despite its best efforts, it was impossible for the SCRO to prevent the marks and Shirley’s print being circulated worldwide. It quickly appeared on the definitive American fingerprint site, www.onin.com, run by Ed German, who began his career with the FBI and is considered to be one of the most prominent and influential examiners in the world. He has played a major role in the research and development of fingerprinting as a forensic science and was to be instrumental in introducing Shirley’s case to a worldwide audience. These images sparked years of vigorous debate by experts across the world. Virtually all of them agreed that the SCRO was wrong.

  But it was not just the internet that was proving invaluable. The press had shown strong support for her during, and particularly after, her own trial. Now a further media opportunity arose, although it was one about which Shirley and Iain held strongly different opinions.

  In mid August, Shirley was approached by the BBC Frontline Scotland team who wanted to investigate her case, with her cooperation if possible. Frontline Scotland was and is BBC Scotland’s flagship current affairs series and over the years it has gained an enviable reputation in terms of digging beneath the surface of stories and discovering new truths. Shirley, still very frustrated that there were people who refused to believe her, despite the trial verdict, was keen from the beginning to work with the programme.

  Iain was less happy with the idea. In the latter part of his police career he had been the superintendent in charge of media relations for Strathclyde Police and he knew that, despite their reputation, most journalists were basically honest. However, he also knew that their job was to attract attention and boost circulation or viewing figures. He worried that if Shirley cooperated she would risk having her story sensationalised and might also alienate herself further from the force, which hated being in the media spotlight. Yet he also knew that if the press want a story, they will usually get it, with or without cooperation.

  A meeting was arranged but programme director Dorothy Parker and reporter Shelley Jofre were less than impressed when Iain presented them with a list of conditions under which Shirley would participate. In turn, a BBC suggestion that they get four or five independent experts to review the identification horrified Shirley. ‘How many more experts do we need before I will be believed?’ she asked.

  Eventually agreement was reached and research began, with Bill McFarlan working with the team to ensure Shirley’s interests were protected. This was the start of a seven-year relationship with the BBC that was to result in three Frontline Scotland and three Panorama programmes which forced action from an extremely reluctant justice system.

  Both Iain and Shirley found the initial contact very demanding. Many hours were spent with researchers going over and over established facts. Shelley Jofre and Dorothy Parker, while friendly, challenged every aspect of Shirley’s story, which she found very difficult. Shirley had to meet with new fingerprint experts, allow her prints to be taken again and again, and then had to wait for the outcome of their deliber
ations. At times it was like facing another trial.

  But worse was to come. On 22 October 1999, Dr McLay, along with John Dougan, the Strathclyde Police welfare officer, made a pre-arranged visit to see Shirley at Iain’s home in Glasgow. The purpose was to assess the possibility of her continuing in the police force, although no proposals had been made as to how that would happen, or where. His recommendation was unequivocal. Noting that ‘she was distressed throughout’, he concluded that ‘she must be considered unfit to continue as a police officer’.

  Soon a formal letter came from Sandra Hood, the assistant chief constable for personnel and yet another one of Iain’s former police colleagues. ACC Hood had rejected a proposal from Shirley that she should continue on sick leave, refused to change a previous decision to move her onto half pay and then – the sting in the tail – announced that Shirley was to be retired on medical grounds with effect from 19 December 1999, at the age of thirty-seven. Shirley’s police career was at an end.

  With Shirley out of the way history was being rewritten by the SCRO and the police. Pat Wertheim, who had allowed his original photographs of Shirley’s prints and the marks in the murder house to be used on Ed German’s fingerprint website in America, received an email from another international expert who told him that the SCRO was denying that these were accurate pictures. In fact, the SCRO was privately claiming that Wertheim had substituted other images in order to bolster his case.

  In January 2000 – some three years after the false identification – Chief Superintendent Harry Bell, the police boss of the SCRO who had taken control of all communication about the case, responded to an inquiry from the BBC by saying that the SCRO had revisited the case and ‘re-affirmed the identification’. Bell also told a Crown Office agent in the same month that the quality of the internet images did not meet that of the actual evidence, adding that any professional opinion relating to the case could only be based on the original Crown productions. Of course the original Crown productions were safely under lock and key, and therefore were not available for examination by anyone who might have a contrary view to that of the SCRO.

  But the internet debate continued to rage, with more and more international experts giving opinions that contradicted Mr Bell’s assertions. This international interest was, in part, driven by worry amongst fingerprint officers about their science and its worldwide reputation, which was increasingly under attack from American academics, like Simon Cole, and lawyers, including Robert Epstein. Cases like Shirley’s where experts refused to admit their mistakes not only served to give more ammunition to the critics but often had terrible consequences for innocent people whose fingerprints had been wrongly identified.

  Another factor affecting Shirley’s case was the Lockerbie investigation. Scottish justice was moving onto the world stage, with a Scottish court being established in the Netherlands to try two Libyan suspects in a case that had attracted huge American attention. Naturally, neither the US nor the Scottish authorities wished the Scottish forensic services to be seen as incompetent or flawed, particularly at that time.

  The possibility that the US and Scottish authorities were trying to hide aspects of Shirley’s case was highlighted in an email to Iain from David Grieve, editor of the Journal of Forensic Identification, and one of Shirley’s original defence experts. In his email, he described how, prior to the publication of his original editorial, he ‘was asked by a very high ranking person of the FBI not to publish anything about the case’. This came soon after David Grieve had been warned not to embarrass a ‘sister agency’ which had pending ‘very important and high-profile cases’ with international significance, which Grieve knew meant the Pan Am bombing. He replied that he could not ‘accept the explanation of some greater good being gained by burying this matter’.

  As they prepared to watch the Frontline Scotland broadcast, Iain and Shirley felt uneasy, despite Bill McFarlan’s involvement and the totally professional approach of the BBC team. The programme makers had made it clear that they would report what they found, not what suited either side, and Shirley had a great deal to lose if the programme makers got it wrong.

  They needn’t have worried. The programme began with a voiceover from Shelley Jofre: ‘She was once a promising young detective with Strathclyde Police. Now, Shirley McKie’s career lies in ruins. The reason: a single fingerprint, which experts said belonged to her. It was a David and Goliath battle, one woman’s word against the century-old science of fingerprinting, a science regarded as infallible in the eyes of the law, with experts who have rarely been challenged.’

  Then Shirley was filmed telling the story of her experiences, from the first accusations to the horror of her arrest. She described being watched as she went to the toilet and showered and then recounted what happened to her at the police office. ‘They gave me an an intimate body search which involved touching my private . . . you know, my chest, and my private parts.’ Civil rights lawyer John Scott, who later, along with his father, battled for Shirley’s cause and was to become a valued friend to the McKies, outlined how unnecessary the police action was: ‘I don’t need to think too far back for circumstances where other police officers were arrested in connection with charges that resulted in the High Court prosecution, and the circumstances of their arrest were entirely different. They were dealt with ultimate discretion and did not have to go through the degrading process that Shirley McKie did.’

  Then came the passage that to this day brings Iain close to tears. Her voice breaking, and struggling to keep control, Shirley told Shelley Jofre of her secret thoughts as her trial approached.

  ‘I’d actually thought about what I’d do if I got found guilty, what would be the easiest way to make it go away.’

  ‘And what did you think that would be?’

  ‘Well, it was really deciding what was the quickest way to kill myself, really. I’m not a brave person at all, and I couldn’t have coped. If I’d done something wrong, that would be different. But if I’d been found guilty for something I hadn’t done – no, I couldn’t have lived with that.’

  There followed a penetrating analysis of the circumstances surrounding Marion Ross’s murder, the police investigations and the SCRO findings. Experts Ron Cook and four English colleagues – along with, once again, Pat Wertheim – were unequivocal and unanimous. The SCRO identification of Shirley’s fingerprint was wrong.

  When the programme finished everyone sat in stunned silence. Then Shirley just smiled, for the first time in ages. Finally the facts were well and truly in the public arena. Surely, she thought, no one could fail to believe the truth now.

  To this day Iain and Shirley feel the importance of the programme cannot be underestimated. The BBC team showed just how effective the media can be in highlighting injustice and forcing action. Furthermore, after an exhaustive examination of all the facts, they believed her, and that belief sustained her and made her determined to fight on. Without the programme, the case would have been forgotten, but now other journalists started to pay attention and ask their own questions. The programme had also put the case into the political arena for the first time.

  Iain had already tried to make contact with members of the new Scottish parliament. Phil Gallie, the Conservative MSP for the south of Scotland – who later would prove a strong ally – had been equivocal when Iain spoke to him, willing to help, but obviously finding it difficult to believe that the police would behave in such a way.

  Iain had no nationalist leanings at all, but he was advised by a friend that he might try to speak to Michael Russell, another south of Scotland regional MSP with an office in Ayr. Russell had also heard of the case from Kay Ullrich MSP, Shelley Jofre’s mother. Consequently, he was happy to see Iain and Shirley and they met on the afternoon of Friday 21 January. This meeting was to be the first of many. It would result, more than seven years later, in this book, and in a firm friendship between Iain and Michael, expressed in almost daily phone calls and mutual support. But Russell was
also initially cautious. Although he very quickly concluded that Shirley was telling the truth, he could not understand why Strathclyde Police had failed to sort the matter out. He felt there must be elements about which he was not being told. Russell suggested that he write to all the parties involved, seeking their views. He warned Shirley and Iain, however, that there was no guarantee of success and that, whatever happened, obtaining responses, let alone making any progress, would be a lengthy matter.

  After some follow-up from the daily papers, the Sunday papers now began to take an interest. On 23 January, Ron McKay, in the Sunday Herald, reported that Michael Russell had written to Lord Hardie asking him to investigate the case of Shirley McKie. The piece flagged up the growing concern within the Scottish fingerprint community itself. In addition to the SCRO experts, there were sizeable bureaus in Edinburgh, Dundee and Aberdeen and the relationship between the fingerprint officers in these different offices was sometimes difficult. Even so, it was unprecedented for disagreements between them to emerge in public and therefore it was highly significant when, on 26 January, fourteen experts based in Edinburgh wrote to the lord advocate and the minister for justice. ‘At best,’ they wrote, ‘the apparent “misidentification” is a display of gross incompetence by not one, but several experts within that bureau. At worst, it bears all the hallmarks of a conspiracy of a nature unparalleled in the history of fingerprints.’

  Iain knew that these experts – who had not contacted him or Shirley – were taking a brave step. Their action was bound to infuriate the legal authorities, and in particular their own chief constable, who was also a senior figure in ACPOS. Therefore, Iain immediately wrote to Sir Roy Cameron, seeking an assurance that the Lothian experts would not be disciplined or threatened as a result of giving their clear opinion about a matter which was now firmly in the public domain. But Cameron’s curt reply indicated that he was far from happy and these experts were all put under severe pressure. At least one revoked her statement very quickly when faced with peer pressure and official disapproval. The effects of the BBC programme continued to be felt. The SCRO repelled inquiries about the facts and sought solidarity from other bureaus throughout the UK. The results of this were experienced by many experts, such as Allan Bayle.