The Price of Innocence

by Michael Russell

  The question session afterwards was polite but unchallenging. The chat in the bars that evening was much livelier, however. As Michael Specter later wrote, ‘the corridors and conference rooms were buzzing; it was as if somebody had challenged the fundamentals of grammar at the annual meeting of the Modern Language Association’.

  Iain was initially a little disappointed in the aftermath of his contribution. It seemed to him that the secrecy and lack of self-criticism which had characterised the UK fingerprint community’s response so far was still much in evidence. Even those who agreed with him did not seem willing to rock the boat, perhaps out of fear about what would happen to them.

  He was surprised when a small group approached him later in the day speaking quietly so as not to be overheard. They were fingerprint officers from Aberdeen and, while they had been warned not to discuss the case, they did want Shirley to know that many Scots experts agreed with her and wished her well. Iain thanked them politely, but he suspected they would remain cowed and quiet. Years later he was to be proved very wrong.

  The tendency of professionals not to criticise other professionals was a constant problem. But courageous individuals, who knew that their area of expertise could only suffer if error was allowed to go unchallenged, were still to be found. It was such individuals who were often able to make the most difference to Shirley and her prospects.

  Deep in depression over the failure of her case against Strathclyde Police, Shirley was surprised to be phoned by Professor Colin Espie, who, in July 1997, almost five years before, had carried out a psychological assessment of her for her police employers.

  Colin Espie explained that, since that examination, he had been concerned about the way Shirley had been treated. But more importantly, he could not understand how it had happened because his opinion – which he had given to Strathclyde Police verbally and in writing at the time – was that she had been speaking the truth when she said that she had never been in the murder house. As a leading figure in his field, he had supported her, but that opinion appeared to have been completely ignored. Now he wanted to know why, and he asked Shirley’s permission to write to the minister for justice to seek an answer. Shirley and Iain were quick to agree, for not only did this raise big new questions, but it added to the view that something very wrong had happened within Strathclyde Police with regard to its treatment of Shirley.

  In his letter to the minister of justice, dated 22 March 2002 and headed ‘Thinking the Unthinkable’, Professor Espie explained that following Shirley’s examination he was convinced of two things: ‘First, that she was psychologically normal and second, that she was telling the truth.’

  Espie then quoted from his report to Dr McLay, the Strathclyde Police medical adviser:

  ‘[She] does not have any history of mental disorder. In my view she is not suffering from any current psychiatric or psychological disorder. She presents with symptoms of stress which are, in my view, a consequence of events of the past few months. There is no evidence of personality disorder, nor any history of pathological lying. I can presume, therefore, that she maintains her convictions as a matter of principle. This may have been at the expense of self-preservation so, if anything, she has an air of naivety rather than guile. I would regard her as a reliable historian and her story has a ring of truth about it rather than any psychiatric basis.’

  Espie informed Wallace that he had been so concerned about the situation that he had telephoned Dr McLay after he submitted this report and had told him personally that Shirley’s behaviour and attitude ‘could not be explained by mental disorder or characterological traits’. He had suggested that the most obvious scenario was that there must have been some mistake in the fingerprint evidence. But Dr McLay had immediately responded that such a mistake was an ‘unthinkable’ explanation, because of its implications.

  Espie remained, he said, convinced that Shirley was speaking the truth, but it appeared to be a truth which was as unthinkable to the authorities now as it had been five years before. He had always hoped that the system might wake up to that truth and to the consequences of its mistake. It had not.

  In the conclusion of his letter he noted that Shirely had scrupulously maintained her honesty throughout the whole affair. ‘She emerges,’ he wrote, ‘as the respectable, decent, courageous and, I think, exceptional person she was at the outset.’

  Iain and Shirley were stunned by the letter when they saw it. Here was clear and unassailable evidence that in July 1997, well before the horror of her arrest and trial, one of the most highly respected clinical psychologists in the country had, after exhaustive examination, come to the conclusion that the prosecution case against Shirley could be deeply flawed. But when Strathclyde Police had been confronted with such evidence, they had merely responded that the idea Shirley was right and the fingerprint evidence wrong was ‘unthinkable’. In other words, Strathclyde Police had already judged her and found her guilty of perjury.

  A key question, of course, was what Dr McLay did with this information. From documents that Iain was able to obtain through Freedom of Information legislation much later, he subsequently discovered that in March 1998 Dr McLay did (in a letter to the deputy chief constable) admit receiving the letter from Professor Espie in August of the previous year, but, crucially, when reporting to the deputy chief constable the same month, at least on paper, he did not refer to the professor’s conclusions that Shirley was speaking the truth, or to the telephone call.

  And again, in a precognition given to Strathclyde Police on 4 October 2000, Dr McLay refers to the report from Professor Espie but says nothing about the telephone call and the professor’s belief that Shirley was speaking the truth.

  So if the information had been suppressed, then Strathclyde Police had questions to answer, which surely the minister would raise with them. And if this was, as it appeared, important new evidence in support of Shirley, perhaps it would be enough to persuade the minister to push his civil servants towards discussing a settlement.

  Seven weeks later, hopes were dashed again. The justice department responded, but the reply was merely a curt acknowledgment of Professor Espie’s letter.

  9

  The Return of the Experts

  Day 1,897

  The appearance of Colin Espie was a stroke of good luck for Shirley, but it accompanied yet another major set-back. On 18 March 2002, a few days before Espie’s letter was sent to the minister for justice, James Black presented his disciplinary report regarding the SCRO experts in the McKie case to the SCRO scrutiny committee. Then on 21 March Andrew Brown outlined the conclusions of the Black report and the decision of the scrutiny committee to Iain. It was crushing. The first paragraph of its conclusion stated, ‘no matters of misconduct or lack of capability have taken place in the work surrounding the fingerprint comparisons of the McKie and Asbury marks and prints’. To add insult to injury, it also recommended that all the experts and the two supervisors who had been temporarily moved to non-operational roles be returned to their duties without any disciplinary action.

  This was an extremely important decision for the experts. They had now been cleared of both criminal and disciplinary offences. This allowed them and their supporters to continue to claim that they had done nothing wrong and to further (and quite erroneously) claim that their identifications had been vindicated. So, their argument went, all the problems were just down to personally or politically motivated troublemakers like the McKies, Michael Russell and – later – Alex Neil, the Scottish National Party MSP for central Scotland.

  Harry Bell, the beleaguered head of the SCRO whose actions in the Lockerbie case were coming under increasing scrutiny, quickly took advantage of the report, circulating to all Scottish chief constables and to the Scottish Executive a press release which reiterated that no matters of misconduct or lack of capability surrounding the fingerprint comparisons had been identified. And, as Andrew Brown, replying to a letter from Michael Russell the following week, was keen to stre
ss, not only was Mr Black independent, but so were his advisers. The Black report gave the SCRO the break they needed.

  Although the report itself appeared far from conclusive and its methodology was highly suspect, it was impossible to verify at the time as Iain’s request for a copy under the Freedom of Information Act was initially refused. A sudden change of heart by the Strathclyde Joint Police Board some time later allowed the report to be examined in detail.

  The first myth to be shattered, when Iain read the report, was that it was independent. The only persons who were not involved in the appointment of the supposedly neutral investigator James Black and the setting of the rules under which he worked had been Shirley and her legal team. The SCRO, the experts’ union Unison, the Scottish Executive, the police and the joint police board had all been consulted in these vital decisions – and all of them, to a greater or lesser degree, had much to lose if the report found evidence against the SCRO experts.

  In addition, James Black provided no evidence of having spoken to anyone other than the SCRO experts and their immediate supervisors. While he had apparently visited New Scotland Yard and Manchester fingerprint bureaus there was no indication that he had discussed the validity of the identification with them or any of the many experts who disagreed with the SCRO. As his report made clear, he had paid little or no attention to any of the other many reports which criticised the experts, at times making a bizarre virtue of this state of ignorance, saying that he was ‘not . . . a fingerprint expert’ so could not ‘in any way be a final arbiter’. Furthermore, the various reports and internet forums, he noted had ‘played no part in the analysis of this report or its recommendations’.

  However, at the time the report was actioned – and crucially not made public – it was impossible to know about these flaws. Later, Freedom of Information legislation and then the evidence given by James Black to the parliamentary inquiry in June 2006 allowed the reality of the ‘clearing’ of the experts to be put into context.

  For a start, it is obvious from the previously secret minutes of the SCRO executive committee meetings that it was Harry Bell, the head of the SCRO and the main apologist for its experts, who was the central coordinating figure liaising with the Executive, the police, unions and lawyers to determine who would be the investigating officer. This incestuous situation was somewhat different from the picture of the ‘independent inquiry’ portrayed by chief constable Brown and Jim Wallace.

  How different was further confirmed by Mr Black when he told MSPs at the parliamentary inquiry that his background was not in criminal justice but in business and industry and that he had been approached by means of a phone call from Mrs Simon to say that Mackay Simon solicitors were acting for the SCRO and needed an investigation officer. ‘She asked whether I would like to submit my curriculum vitae. The CV went to Kath Ryall [a Unison official who represented the four experts], to the four experts and to the management of SCRO, and they agreed that I would be the investigating officer under the ad hoc investigation procedure that they had set up.’ In other words, he himself knew he had been appointed by the very people and organisation he was meant to be investigating.

  He then went on to say that he had been briefed by Harry Bell with staff from Mackay Simon. ‘One of the employment law solicitors was assigned to give me advice on what I should be doing on the legal side and Harry Bell advised me on what I might like to look at.’

  Iain McKie later commented to the press that relying on Harry Bell to advise on issues to be examined was like asking for turkeys to prepare a case for an annual festival called Christmas.

  The narrow focus of the subsequent inquiry was underlined when Mr Black went on to admit that whilst he had visited New Scotland Yard and Manchester fingerprint bureaus he had only been interested in the processes used in fingerprint identification and the procedures which were adopted when mistakes were made. The ‘McKie identification’ had not been examined in that context. Then, when he spoke to the SCRO experts themselves, as well as their colleagues and supervisors, he had indeed asked them about the disputed mark, but he had never sought other information about it, still less information from independent experts who disagreed with the SCRO. In effect, his evidence about misconduct or the lack of it was solely derived from interviews with six people in the SCRO.

  The nub of the problem became quite clear during the later parliamentary inquiry, following a suggestion from Liberal Democrat MSP Mike Pringle that Mr Black might have widened his inquiry within the SCRO. Black replied that he wanted to know whether the experts had correctly followed the process as it stood at that time. He said, ‘It seemed to be the case that they had done that; they had signed things and looked at things professionally . . . Obviously a lot was going on in the SCRO at that time and I found that other looks had been taken at the fingerprints, but I did not think that I needed to go and ask people whether they agreed that the fingerprint was so-and-so’s. I needed to find out what the processes were at the time and if they had been followed. It seemed to me that they had.’

  In other words, Mr Black had merely cleared the experts of general incompetence. He had not investigated whether the experts’ conclusions were right or wrong or whether they had covered up their mistakes. His only concern was that procedures had been followed. The disastrous results of their actions were not relevant.

  But none of this was known at the time the report was presented to the scrutiny committee. On the day of the announcement, Shirley phoned Michael Russell, a thing she seldom did. She was distressed and could hardly speak. She seemed to feel that no one was able to help and that there would be no vindication of her position. Why, she wanted to know, did no one have to face up to what they had done? It was clear to Michael and Iain that Shirley couldn’t take much more of this pressure.

  Russell left his office at about seven o’clock that evening. Walking through the deserted lobby of the parliamentary office building on George IV Bridge, he came across, by accident, the minister for justice, Jim Wallace. He took him aside, into an open corridor with glass walls which was outside the chamber office, and recounted the conversation he had just had with Shirley. Wallace seemed very sympathetic and when Russell stressed with him how worried he was about Shirley’s ability to keep going, fearing a breakdown or self-inflicted harm, Wallace assured him that he personally wanted to see a settlement of some sort and that he was keen to prevent any further distress.

  Although Shirley hated the limelight into which she had been unwillingly thrust, she had a personality which attracted journalists and her story was compelling and full of human interest. Often they were her key allies in her search for truth, and Iain’s experience of the media was a huge added bonus. As ever, this new twist to the story provoked a new flurry of coverage, and on Monday 25 March – five days after the devastating blow of the Black report – Jim McBeth penned a feature interview with Shirley in the Scotsman. It was a perceptive portrayal of what she was going through and who she actually was and it even picked up on the unexpected positives of her position, such as her recent improved relationships with her family and especially her father.

  It also revealed that Shirley had a new relationship in place, with a man who, as McBeth put it, fulfilled ‘her need – demand – for honesty’. ‘We adore each other,’ she was quoted as saying. ‘We met through mutual friends. He did not know who I was and accepted me as I am. Now he does know, and he has become another rock . . . He is a very special individual. Believe me, he has to be.’

  Yet alas, as so often before, it was not long before the deep-seated feelings of mistrust which had been so exacerbated by her bullying and mistreatment by her colleagues came to the fore and brought even this relationship to an end.

  McBeth glimpsed something else in Shirley too, something which always gave her family hope. For, no matter how bruised and battered she was, she was determined to survive. In the interview she described herself and her feeling in this way: ‘I don’t want revenge. I want justice
. . . I became a police officer because I believed in justice and integrity. I knew what I wanted, and I knew it meant turning my back on domesticity, children, marriage. As I approach my fortieth birthday, I have been left with none of these things. They stole my life, my career.’ And she added, ‘A few nights ago, I was lying pummelling the floor in despair. Today, I’m ready to fight on. And I will.’

  And she did fight on, with the help of 129 experts from the international fingerprint community, who in early May sent a statement to the minister for justice via Michael Russell:

  It can be easily demonstrated and proven that the SCRO experts were clearly wrong in identifying the mark as Shirley McKie’s, and this makes the SCRO defence that it is a matter of opinion false and untenable . . . If not admitted it will further undermine fingerprint evidence, the Scottish judicial system and the position and credibility of the SCRO.

  At the same time as he was helping to coordinate this international response, Michael Russell was convinced that, given the conclusions of the Black report, the McKie case needed to come to the floor of the Scottish parliament chamber for a broader airing than it had yet received.

  Part of the reason was to find ways of drawing in support across the political spectrum, for, despite Russell’s role as an MSP representing Shirley, there were some suggestions that this was all a ploy by the SNP to embarrass the Executive. Michael Russell and Iain McKie were keen to quash that suspicion as firmly as possible. Other members from other parties needed to be given the chance to join in the discussion and show their support.

  Russell asked the SNP business manager Fiona Hyslop to propose his already tabled motion on the McKie case for members’ business at the weekly parliamentary bureau meeting. Hyslop did not find this straightforward, as there was a clear worry from Labour and the Liberal Democrats regarding the potential for embarrassment given the choice of subject. However, after Russell had altered the motion at the suggestion of the presiding officer, Sir David Steel, to avoid sub judice problems, it was eventually agreed that the debate would take place on 15 May. Under pressure from Sir David Steel, Russell agreed to provide him with an advance copy of what he intended to say.