In May 2001, the chief inspector of constabulary published a further report on the SCRO which concluded: ‘Taking into account the performance of the SCRO as a whole, HMCIC considers that in terms of Section 33(3) of the Police (Scotland) Act 1967, the SCRO is efficient and effective.’ This surprised many people, not just the McKies. It seemed impossible that, only a few months after the most damning indictment of a UK fingerprint bureau ever delivered, the same author could now be saying that everything was fine, particularly as the SCRO management and staff were still refusing to acknowledge that they had made any mistake whatsoever. The culture of the organisation had not changed, yet it was now ‘efficient and effective’. That was highly unlikely, but confidence within the SCRO was certainly rising again, especially about the growing likelihood that no proceedings would be taken with regards to the Mackay report.
In fact, in a meeting on 1 June 2001, the SCRO executive committee, under its chairman Willie Rae, was already preparing for exactly that outcome. The minutes record that the director of the SCRO, Harry Bell, ‘stated that if the Crown decides on “No Proceedings” they might write to SCRO and identify issues of concern. This might identify issues for disciplinary proceedings and would require careful consideration.’ Then, on 20 June 2001, Mr Bell told other colleagues that Mrs Simon, a leading employment law specialist from lawyers Mackay Simon, had been approved by the SCRO executive committee to represent the SCRO in relation to the McKie case.
Whilst in Scotland the SCRO was preparing for what it assumed would be vindication, in England another victim of fingerprinting was about to go on trial at Manchester Crown Court. Over several days in late June, the prosecution and defence experts presented their evidence regarding Alan McNamara’s fingerprint. Pat Wertheim and Allan Bayle argued that while the fingerprint was Alan McNamara’s it could not have come from the jewellery box as claimed by the prosecution. In turn, the prosecution experts claimed that it most definitely had come from the box.
As Iain followed the trial in evening telephone calls, it seemed clear to him that in the absence of any motive for the crime and without any other evidence but this single disputed fingerprint, the trial was likely to descend into an abyss of confusion where experts argue with other experts with the jury as bystanders. Surely that must mean that the jury would have to reach a verdict of ‘not guilty’, given that the case was not proved ‘beyond reasonable doubt’.
Iain was wrong, for on 25 June it took the jury just two hours to reach a unanimous verdict of ‘guilty’. McNamara was then released on bail, but told to return for sentence on 17 July.
Shelley Jofre’s Panorama broadcast on 8 July dramatically covered the events and reactions of Alan and the experts from the time of his arrest in 1999 through to the court’s ‘guilty’ verdict. The camera recorded Alan and his wife Lisa’s stunned expressions as the consequences of the ‘guilty’ verdict sunk in. ‘I’ve just right now got to think about how I’m going to break this to my family because they’re going to fall to pieces, absolutely fall to pieces,’ said Alan. ‘My whole life is going to fall to pieces.’
On camera, Pat Wertheim expressed his shock at the verdict, inviting world fingerprint experts to look at the prints and form their own opinions about the case. But Alan had been convicted. With absolutely no other evidence linking him to the crime, with two of the world’s most experienced experts raising doubt about the locus of the print and with common sense throwing doubt on the whole investigation, a guilty verdict had still been reached. That the case had by no sense of the imagination been proved beyond reasonable doubt didn’t seem to matter.
When Iain examined the judge’s summing-up speech some time later he found that the jury had been asked to decide which experts they believed without any direction. They had chosen to go with the police, presumably assuming that the police were infallible in such matters. It was that same assumption of infallibility that Shirley and her lawyers had fortunately managed to challenge and overcome.
Alan McNamara was given thirty months in prison for a first offence. The verdict and sentence were greeted with shock by everyone associated with Alan, but from that grew a new determination by him and his family – and by many others – to see this through and prove the truth. Iain and Shirley quickly became part of that informal support group and tried to help and advise as the family struggled to find grounds for appeal.
The McNamara case was one of the matters on many lips at the International Association for Identification conference held in Miami, Florida in July. Some months earlier, in recognition of the importance of what was now called politely ‘the McKie case’ (and impolitely ‘the Scotch botch’), and of his own campaigning role, Iain had been invited to make a presentation on the misidentification of Shirley’s print.
The FBI was well represented and their number included Steve Meagher, the head of the FBI fingerprint bureau who addressed a session looking at the ongoing ‘Daubert hearings’ which were proving to be America’s own challenge to fingerprint evidence. Representatives from the UK was also numerous, and those attending included David Charlton, the editor of the Fingerprint Society magazine Fingerprint Whorld, who, along with a colleague from Sussex Police, was keen to discuss the issues thrown up in light of Shirley’s case.
Iain was nervous about having to present to some of the world’s foremost authorities on fingerprinting, but he addressed two packed sessions. Although the questions were challenging, the response to his talks was warm and the conversations away from the formal conference room were equally positive. Meeting a number of key experts for the first time, including David Grieve who had been a witness for Shirley at her trial and Ed German whose website www.onin.com had publicised her plight across the world, reassured him that the international fingerprint community was behind Shirley in her fight with the SCRO.
It was clear that Shirley’s case had had an international impact on the fingerprint profession and the encouragement Iain received from a number of key figures in this profession was a welcome difference from the official reaction in Scotland.
As August passed into September there was still no word from the Crown Office about the Mackay report. Shirley’s civil action was well underway, but Andrew Smith remained convinced that this would be made easier if there were prosecutions.
Eventually William Gilchrist, who was now working in the Crown Office in Chambers Street in Edinburgh, wrote to Iain and Shirley, inviting them to meet him there. His conclusions were short and to the point. After nearly a year of inquiry, no criminal charges would be laid against anyone. No reasons were given, and no further inquiry would be made.
The Crown Office decision was immediately seized on by the SCRO, not only as proof that the experts had done nothing wrong but that their identifications were sound. While the flaws in the decision would eventually be revealed, for now all Shirley and her supporters could only hope for was an independent disciplinary inquiry that would help to reveal just what had gone wrong. Sure enough, a formal report now went to the Strathclyde Joint Police Board, suggesting that as employers they consider how to move towards disciplinary action. The board was required, according to the clerk, ‘to put in place a procedure which will be perceived to be fair and which can meet any objective test of natural justice’. This promise of a fair and independent investigation was reinforced in a letter from Jim Wallace: ‘What is being proposed is to identify people who are at arm’s length from the Board, Strathclyde Police and SCRO, and who would act as investigating officer’. It appeared that these criteria had been met when Harry Bell informed Chief Constable Andrew Brown (now the chair of the SCRO executive committee) on 15 October that Mr James Black was appointed as investigating officer, with Mrs Doris Littlejohn as the chair of the scrutiny panel. Black had worked in industry for many years and was considered an expert in disciplinary inquiries. Littlejohn had recently retired as chair of the Employment Tribunal.
As the uncertainty continued, Shirley was living alone in her flat in Troon.
She was now desperately lonely and depressed. She felt that her life would be on hold until the legal battles were over. Although family and friends were there for her, the constant need for support and total truthfulness from any prospective partner was making relationships impossible. In addition, she felt she had lost Iain in the trauma of the past years. Whenever they met, he would turn the conversation round to the very last thing on earth she wanted to discuss. Instead of providing a father’s comforting presence, Iain became a constant reminder of the struggle yet to come. She had one positive in her life, however, and that was the powerful and healing bond with her horse Abby, which gave her a focus in life and something to care for.
Iain too had his problems, for although he was now working as a counsellor and in a strong relationship with Mairi, he knew that the strain of the last five years had affected him and he worried about what would happen if he suddenly became too ill to keep hammering away at the case.
One thing that united father and daughter, however, was the hope that Shirley’s tormentors would finally accept she had been wronged, settle her civil case and leave her free to get on with her life, whatever that was going to be.
Yet again, their hopes were dashed. On 15 February 2002, Shirley’s Edinburgh solicitor Gordon Dalyell phoned Iain to tell him that Lord Emslie had dismissed Shirley’s civil action against Strathclyde Police. Apparently, according to Lord Emslie, the action was ‘fundamentally irrelevant’ because Shirley was unable to show that her ex-colleagues had acted with malice.
However, when Iain pored over the written judgment, the issue was not as clear-cut as it first seemed. The core argument was that, while no one disputed the facts of Shirley’s treatment on arrest, Shirley’s lawyers would have had to prove ‘relevant averments of malice in terms of the authorities’. To Lord Emslie, therefore, there was a presumption of legality in such an arrest, unless malice could be shown to have motivated the arresting officers. ‘Applying these considerations to the facts and circumstances relied on by the pursuer in the present action,’ he wrote, ‘I am not persuaded that a relevant case of malice has been pled against any of the three police officers who were involved at the time of her apprehension and subsequent processing.’
However, while Emslie still had considerable problems with the relevancy of Shirley’s case as presented to the court, he added that if a relevant case for malice had been pled against any of the officers, then he would not have been prepared to dismiss everything that happened during her arrest as irrelevant. For, as he observed, ‘it seems to me that the intimate watching of the pursuer as she prepared herself to leave the house, the holding of the pursuer for ten minutes at the charge bar at Ayr Police Office, and the intimate nature of the search carried out there, could all conceivably be held, depending on how the evidence came out, to have gone well beyond what was necessary in the circumstances and to have amounted to assaults on the pursuer for the purposes of a civil claim.’
This conclusion, although welcome, was deeply annoying. It threw up the question of whether a differently presented case might have succeeded. It seemed to acknowledge, albeit tacitly, that there was something wrong in the way that Shirley had been treated, but that the chance to make Strathclyde Police take responsibility had been missed. There had been a failure, not in the facts, but in the way the facts had been presented – something which seemed to negate the concept of justice.
The case also said something else. In the absence of more evidence, the chance of Shirley gaining compensation was looking more and more unlikely. The police and the legal establishment controlled the flow of information, and provided they sat tight, Shirley would simply be pitting her word against theirs. They would just deny everything, sure in the knowledge that no one would break ranks as she had. Her plight was, after all, a dreadful warning to any officer who might wish to take an individual and principled stance.
Shirley took the judgment very badly. Having been brutalised and degraded by the force she had served for thirteen years, she now had to confront the possibility that she would never have final closure, a point at which she was recognised by the police as having been in the right. For her, that prospect was as horrifying as the thought that those who had persecuted her found their careers not only intact but continually enhanced, whilst hers had been destroyed, along with much of her life.
Shirley’s lawyers lodged an appeal against the Emslie judgment, but the appeal failed a year later, to no one’s surprise. Lords Kirkwood, Caplan and Marnoch were even more sympathetic to Shirley, saying in their written judgment that they had ‘given anxious consideration to the averments’ but it was obvious to them too that these averments on Shirley’s behalf ‘fell short of what would be necessary to be capable of justifying an inference of malice’.
The real task, Iain now saw, was to focus exclusively on the action against the SCRO officers who had made the initial misidentification. He forcefully suggested to Shirley’s lawyers that they concentrate on that in such a way that took account of Emslie’s judgment. Not to do so, he argued, would make the chances of success in this second and final action even more remote than they presently seemed.
During this period, Michael Russell had been continuing to press Shirley’s case with the Scottish Executive. He tried to get the minister for justice to realise that time and resources would be better applied to settling the matter, rather than defending the civil action, particularly as Jim Wallace had already privately acknowledged that Shirley would need to have compensation of some sort. Russell’s strategy was to keep up the public pressure whilst making it clear that a private resolution was what Iain and Shirley wanted. Wallace seemed to understand this point in back-channel conversation, but his civil servants seem determined not to give an inch, arrogantly implying that if Shirley pursued any legal route, they would use all their resources to defeat her. As this stance became more and more obvious, Russell began to consider ways to bring the matter to the floor of the parliament again, to demonstrate that it was becoming an issue which was discrediting not just Scottish justice, but also Scottish self-government.
Other players were also making some noise. At one stage, Russell received a pager message asking him to call a number he did not know. His pager was rarely used and he was surprised, when he placed the call, to find himself talking to Peter Swann, the expert initially consulted by Shirley’s lawyers, who had wrongly concurred with the SCRO identification. Mr Swann advised Russell to be cautious about the case, saying that Shirley McKie had not told the truth and insisting that the print was correct. He also implied that there were matters about Shirley which Russell was not being told by her or her family.
Similar ‘friendly warnings’ were given to Russell by high-ranking police officers on a number of occasions, including at a party in Ayrshire when a serving Strathclyde police senior officer took him aside to tell him that Shirley was lying and that whilst everyone admired Russell’s tenacious pursuit of the case, he was likely to find himself ‘embarrassed’ when the truth came out. Similar messages were also passed to him by other MSPs, including some from other parties, and these usually turned out to have been inspired by conversations with senior police officers. In contrast, many more junior and retired officers were openly sympathetic to Shirley and those parliamentary security staff who were ex-police – and there was quite a number of them – often talked to Russell about the matter and were very supportive of Shirley and Iain when they came to the parliament to see him.
There were also cracks appearing in the solidarity of the fingerprint establishment. Out of the blue, Iain was invited to speak at the 2002 annual conference of the Fingerprint Society, which was held in Cardiff in March. This was surprising because the society had not only kept a rather edgy, and not entirely sympathetic, neutrality on the issue, but it also had within it some prominent SCRO supporters, including Martin Leadbetter and other friends of Peter Swann, who himself was a fellow of the society.
The invitation had been secured by Davi
d Charlton, editor of Fingerprint Whorld, who had talked with Iain in Miami the previous year. Amongst those attending would be a number of foreign top-rank experts, including Steve Meagher of the FBI fingerprint unit, whom Iain had also met in Florida. Intriguingly, Iain noticed when he got the delegate list that Peter Swann was intending to be there.
Someone else who was planning to be present was not on the list, however. Shelley Jofre was preparing a Panorama programme on fingerprinting for the BBC and had asked for permission to film at the conference. She had been refused but she had decided to come anyway and her crew filmed Iain and Mairi arriving at the conference venue. That was probably a mistake, for as soon as the cameras were seen, the atmosphere turned distinctly icy. In addition, the distinguished American journalist Michael Specter, who had come especially to the event to write an extended feature on the current turmoil in the fingerprint community for the New Yorker, was told – as a result of the fear about Panorama – that he could not be present for Iain’s talk. However, Iain arranged for Allan Bayle to take him into the hall as Iain’s guest and he was not challenged.
Iain began his lecture by applauding the society for being inclusive enough to invite him and he paid tribute to the UK and US experts – Allan Bayle, Ron Cook, the fourteen Lothian and Borders staff members, Pat Wertheim, David Grieve and Ed German – for their contribution. He suggested that the solution to problems created by experts could be remedied by other experts, providing the will was there. All that was needed was to shrug off the mantle of infallibility and to welcome any challenge that required an honest and constructive response. Indeed, so essential was a rigorously ethical and self-critical approach that the society, Iain added, should ensure that those who failed to demonstrate such an approach had no place among its members.
The Price of Innocence Page 11
