The Price of Innocence

by Michael Russell

  It was noteworthy that already the organisation was trying to downplay the significance of what had happened, with Mr Rae adding that there did not appear to be ‘an inherent problem’, and stressing that the McKie case had been the only successful challenge to the system. ‘It is very rare that people have been convicted on fingerprint evidence alone,’ said Rae.

  Four days after the parliamentary statement, and with the papers still full of material about the case, Iain wrote to Jim Wallace, thanking him for his public apology, and to HMCIC William Taylor, thanking him for treating Shirley and her family with ‘respect and humanity’. But he also challenged both about a failure to address broader matters, including the issue of criminality.

  After the parliamentary statement, Iain and Michael were convinced that although Shirley had already indicated that a proper apology was more important than compensation, the state must now recompense Shirley for the loss of her job and career. They were less positive, however, that the many other issues raised by the case would be tackled.

  In his letter to Jim Wallace, Iain summarised the matters he felt now needed to be addressed:

  1. That the Crown Prosecution of Shirley McKie was ill-conceived and oppressive and that officers of the Crown Office failed to take action on matters raised before, during and after her trial which clearly pointed to her innocence and the possible guilt of the SCRO and its officers.

  2. That the behaviour of officers of Strathclyde Police in the investigation, interrogation, arrest and subsequent treatment of Shirley McKie was oppressive and contrary to natural justice and resulted in emotional and psychological distress and financial loss to Shirley McKie and her family.

  3. That the SCRO ‘experts’, namely Charles Stewart, Hugh Macpherson, Fiona McBride and Anthony McKenna, should be investigated in respect of possible perjury and criminal conspiracy committed by them at the trials of David Asbury and Shirley McKie.

  4. That the organisations and persons responsible for supervising the SCRO failed to carry out their responsibilities and as a result failed to identify serious shortcomings in the operation of that organisation.

  5. That many question marks surround the police investigation following the death of Marion Ross and that the said investigation should be independently reviewed.

  But the minister and the lord advocate remained sceptical. For example, on 7 July 2000, the lord advocate wrote to Michael Russell, referring to Iain’s correspondence and protesting, ‘His complaints have moved, perhaps not unnaturally as events have developed, from suggesting the SCRO fingerprint experts were incompetent, to accusing them of possible perjury or making allegations of criminal conspiracy.’ Yet Iain had been raising this issue ever since the trial, which the lord advocate should have known.

  No matter how seriously the Crown Office was having to take such matters (for formal complaints of this nature normally demand investigation, particularly if made by an ex-superintendent and backed up by a major TV documentary), it was also clear that it saw huge problems in so doing. Colin Boyd indicated as much to Michael Russell during a meeting in the Crown Office, when he took down a book and read to Russell the legal definition of perjury, implying that there was no way that such a charge could succeed against the SCRO staff. The Crown was even vague about who should take responsibility for the actions of those staff, for that matter was far from clear and was inhibiting investigation into the actions of the fingerprint officers.

  Iain also had other concerns and turned his sights on Sir John Orr, the chief constable of Strathclyde. Writing to the justice minister, he complained about the recent promotion of two of Shirley’s main tormentors, Detective Superintendent John Malcolm and Detective Chief Inspector Stephen Heath: ‘My daughter’s allegation is that she was ostracised, arrested and brutalised. To see two police officers who might have played a part in this being rewarded and promoted . . . is hard for me to stomach as a father.’ He also accused Sir John of ‘arrogance and failure to act despite mounting evidence of Shirley being bullied’ and asked whether the chief constable was ‘any longer accountable to anyone’.

  But that, though serious, was a side issue. The ACPOS presidential review of the SCRO was now up and running and, as a result of Iain’s persistence and the Frontline Scotland evidence, the lord advocate had been forced to ask the procurator fiscal in Paisley, Mr William Gilchrist, to investigate possible criminal conduct by Strathclyde Police and the SCRO. A dedicated investigation team from Tayside Police was soon put place, led by James Mackay, the deputy chief constable, and Mr Scott Robertson, the detective chief superintendent of that force.

  Shirley and Iain met them shortly after they had been commissioned to undertake their difficult task and immediately established a rapport with them. Everything was explained openly and promises were made that were never to be breached. On 23 July Iain submitted a 183-page statement, summarising all the work he had done to date on his daughter’s defence. The statement concluded that the collective weight of evidence against the Strathclyde Police, the SCRO, the lord advocate and the Crown Office lead him to the inevitable conclusions that Shirley and the truth had been ‘victims of a conspiracy and interrelated mistakes and failures which strike at the very heart of the Scottish judicial system’. Furthermore, he added, the Scottish prosecution system had ‘moved heaven and earth in an effort to pressurise, humiliate and psychologically injure [Shirley] to the point where she was contemplating suicide.’

  The pace of review, investigation and progress continued to quicken. Other important developments were also taking place. It would later become known that the Dutch expert Arie Zeelenberg and his Norwegian colleague Torger Rudrud, who had reported the SCRO ‘misidentification’ to HMCIC, were subject to what they believed to be a deliberate falsification or misrepresentation of material from the case by the SCRO experts at a meeting in Tulliallan during August 2000. During that month two Danish experts commissioned by the Crown Office also became involved and came up with crucial conclusions when they reviewed prints from the Asbury case.

  On the vital Marion Ross print allegedly found on the biscuit tin – the print that had convicted Asbury – Kristian Rokkjaer and Frank Rasmussen from the fingerprint department of the Danish police reported, ‘Some of the entered and numbered details cannot be seen on the fingerprint from the tin, and likewise there are details on the tin which are not entered and cannot be seen on the fingerprint taken from the deceased, Marion Ross.’ Their final conclusion was that the SCRO identification was wrong.

  They then went on to examine some other material presented to them, including a fingerprint alleged to be David Asbury’s on a £10 banknote. This SCRO identification had never been contested. Now it was, for in their report they stated, ‘On the photograph marked QD2, at least four clear details were seen. These details cannot be found on David Asbury’s right little finger, nor on his other fingers as indicated in the SCRO’s report . . . the fingerprint marked QD2 does not originate from David Asbury.’ And whilst this print had no direct relevance to Asbury’s conviction, evidence of yet another mistake by the SCRO experts raised further vital questions about their competence or lack of it.

  The Danish report had an immediate and dramatic effect, however. The Marion Ross fingerprint identification, the most critical piece of evidence against David Asbury, was obviously wrong and on 22 August 2000 – after over three years in prison and only three months after the Frontline Scotland programme – Asbury was granted interim liberation at the High Court in Edinburgh. Nearly two years later, on 14 August 2002, he was to have his conviction quashed, with the Crown offering no evidence and the court accepting that the fingerprint evidence was ‘unreliable’. His action for compensation has still not been settled as this book goes to print but it is worth noting that the SCRO officers involved continue to assert that they were right, just as they do with regard to the Shirley McKie case.

  When HMCIC William Taylor’s full report was finally published on 13 September it was welcomed
on all sides. Jim Wallace immediately pledged a ‘radical overhaul’ of the SCRO, whilst BBC news reported on the reaction of Chief Constable Willie Rae, the ACPOS president, who said that Mr Taylor’s study marked a ‘vital step forward’ in restoring public confidence in fingerprint procedures. But Mr Rae wanted to go further, and he told the BBC that, without waiting for the report, ACPOS had agreed that he should meet the McKie family and offer apologies for what they had been through. ‘Consequently,’ he said, ‘I recently met Shirley and her father Iain and apologised to them. I am personally saddened that they had to endure such torment, but anyone who has met Ms McKie will be impressed by her courage and fortitude. She is determined to do all she can to ensure her experience is never repeated and she generously welcomed my apology.’

  William Taylor’s report was unequivocal in respect of the SCRO identification of Shirley’s print. Arie Zeelenberg and Torger Rudrud confirmed their interim findings, stating firmly that ‘the mark was not made by Shirley McKie’ and observing that, in their view, ‘this decision could have been reached at an early point in the comparison process’.

  The report made twenty-five recommendations focusing on every aspect of the bureau’s work, including supervision, training, competency testing, quality assurance, transparency and accountability. It concluded that ‘a centralised model for a national fingerprint service should be considered’; it called for ‘a national guidance manual on fingerprint standards and procedures’ to be issued and suggested that ‘an independent review process to deal with all erroneous and disputed fingerprint identifications’ be developed. It also urged that all fingerprint experts within the SCRO fingerprint bureau undergo competency testing, to be provided and managed by an external body, as soon as possible.

  At the time of the interim report, and in the following months, ACPOS established various groups to oversee the implementation of the changes. In effect, a blueprint for the future of the Scottish forensic services was emerging.

  Unfortunately, despite the claims of successive ministers for justice, lord advocates and chief inspectors of constabulary, claims that everything was effectively tackled, and that a new regime was implemented after the report, little actually changed within the organisation with regards to the all-important matters of management and culture. Those at the centre of the fiasco believed that they were still right and that everyone else was wrong.

  Startling proof of this failure to act was to emerge in 2006 when the Executive-sponsored ‘Mulhern Action Plan’, created to solve the problems at the SCRO, called for ‘immediate action’ on many of the cultural and management problems of the SCRO – the very same cultural and management problems highlighted by HMCIC in 2000. This six-year hiatus was the cause of much further suffering for Shirley, for it held back a settlement of her case and poisoned the debate on fingerprinting. The people who had committed the first error stayed in post and defended their stance, and they were aided by the actions of successive ministers for justice, the lord advocate and many civil servants.

  In reality, the assertion that all was now well within the Scottish justice system and that lessons had been learnt was a smokescreen which allowed – and perhaps even encouraged – the SCRO management and staff to continue their cover-up, and it ensured that many important reforms would not be implemented, or would not achieve their full effectiveness.

  But even Iain and Shirley were misled by the flurry of activity. Iain remembers thinking that HMCIC’s report and the ACPOS response marked more or less the final stages of his campaign and as 2000 came to a close he believed that the last piece of the jigsaw – the awarding of compensation to Shirley – could only be a matter of months away. As for his other key points, whilst he wanted to pursue them, he realised that the impetus towards doing anything about the actions of the police and the SCRO officers was fading. Perhaps future radical change in the system might be the best he could achieve.

  8

  Legal Battle is Joined

  Day 1,716

  Surprisingly there had never been, in either Iain’s or Shirley’s mind, absolute clarity about what compensation settlement they would be willing to accept.

  Initially, Shirley merely wanted an apology and the chance to return to the career she loved, and which she believed offered her many prospects of promotion. Even when she had been retired on medical grounds, a part of her still hoped that a way would be found for her to return to work as a policewoman.

  By the autumn of 2000, however, even that vague wish had evaporated. It was becoming clear that suing for compensation for her loss of employment and suffering was the only way left for Shirley move on.

  Shirley’s uncle, Jimmy Cassels, who had his own firm in the centre of Glasgow, offered to act as her solicitor and a new legal team prepared to work without immediate payment was engaged. Andrew Smith QC was her advocate and Gordon Dalyell of Digby Brown was the main Edinburgh solicitor. They were to offer invaluable help in the years to come, although the time frame turned out to be even longer than they had expected.

  Towards the end of 2000, with James Mackay’s police report submitted to Regional Procurator Fiscal Gilchrist and no sign of a Crown Office decision, Andrew Smith advised that the time was right to start planning civil action to secure Shirley’s future.

  As that fourth anniversary of Marion Ross’s death drew close, it was also becoming obvious that her killer was probably still at large. The conviction of David Asbury, who was now released on interim liberation, was looking more and more unsafe. Although this had initially been difficult for Shirley to come to terms with, she now accepted that if he was not guilty then the culpability of the senior officers in charge of the murder hunt was all the greater. They had concentrated on getting a conviction which now seemed to be, at best, doubtful, and in so doing they had put much energy into attempting to break her down, to prevent her putting the case at risk. They would have been better occupied, Shirley believed, looking for the real murderer. Yet, even now, there was no new investigation being undertaken. The officers in question, and the force as a whole, were still not prepared to admit that anything was amiss.

  This attitude also pervaded the most senior levels of the other Scottish forces. In early 2001 Iain was told, privately, that some of the Lothian and Borders experts who had come out in support of Shirley twelve months before had quietly been ‘dealt with’.

  In February 2001, DCC James Mackay retired from Tayside Police, and he wrote to Iain and Shirley thanking them for their assistance in his inquiry. Iain and Shirley responded by telling him that he had restored their faith in the police, given his painstaking approach and his courteous manner. There was still, however, no word about action in light of the Mackay report, which presumably was still being considered within the Crown Office.

  Now Andrew Smith recommended to Shirley that she commence two civil legal actions – the first against Strathclyde Police for the way she had been treated before, during and after her arrest, and the second against the SCRO experts. Shirley was very reluctant to take legal action, still wanting an amicable, out-of-court settlement, but Andrew persuaded her that, given no one was offering even to talk about such a settlement, the only way forward was to prod the various parties concerned, a task for which legal actions were well suited. Accordingly, Shirley gave her assent.

  Immediately, however, a problem occurred. There was some doubt about who exactly was responsible for the SCRO and its staff. In legal terms it would be necessary to serve the papers on the body which was responsible for them, but the Executive at first would not admit to such liability. The chief constable of Dumfries and Galloway Police, Willie Rae, wrote to Justice Minister Jim Wallace after lawyers had made initial approaches to ACPOS, the Executive and Strathclyde Police in order to find out who was responsible. He urged that compensation should be paid, arguing that ‘ministers and the public will not be impressed if it appears that progress to a settlement is being impeded because of a dispute over who has responsibility for SCRO
’. These statements turned out to be very prescient indeed but it took several months to obtain from the Scottish Executive an agreement to take what is called vicarious liability for the SCRO. This evasive attitude, which Iain and others saw as the obverse of the stance that was expected from a responsible government, would set the tone for the Executive’s approach to the legal action over the next five years.

  Meanwhile, the BBC remained very interested in Shirley’s case. However, they realised that once full legal action was underway they might be constrained in what they could report. Shelley Jofre, who had moved to the prestigious network series Panorama in August 2000, was now researching a programme which would look at some wider questions of fingerprint reliability, focusing not only on Shirley and on David Asbury, but also on Alan McNamara.

  McNamara, a Bolton businessman who had been charged with burglary and theft after his print was allegedly found on a jewellery box after a robbery in Rochdale, had been protesting his innocence since his arrest in October 1999. He had got in touch with Iain after the first Frontline Scotland documentary and had then contacted Pat Wertheim and Allan Bayle. They had looked at the print and confirmed that it was McNamara’s – but they were also of the opinion that the print could not have been lifted from a jewellery box as the Manchester experts contended, rather that it had definitely come from a rounded object like a vase.

  The major problem was trying to determine how McNamara’s fingerprint had found its way onto the scene of crime without Alan being in the house. The most persuasive theory was that as he sold vases and other similar goods in his local discount store he had transferred his print onto one of them at work. However, the police were adamant that they were correct and a trial date was set for June 2001. Shelley’s programme would be broadcast shortly thereafter.