Taking all matters into account, therefore, Wheatley declared himself satisfied that Shirley should be entitled to an inquiry on her claim that she suffered a malicious prosecution without reasonable and probable grounds.
There was one final issue that Wheatley found it necessary to address and that was the efforts by the Executive to have the evidence of James Mackay and Scott Robertson disallowed. His judgment was short and to the point: ‘I disagree with this submission. The findings of this independent police inquiry could, in my view, have a direct bearing on the circumstances of the defenders’ examination and comparison of the fingerprints in question.’
The relief that the legal team, Shirley, Iain, the family and all those who were supporting them felt at the judgment could not be overstated. After endless disappointments, there could finally be a full examination, under oath, of the positions of the key players. The truth would surely come out and with it there would come a resolution of a mystery which was – like Marion Ross’s unsolved murder – now seven years old.
Yet Iain knew that they had been given the benefit of the doubt by Lord Wheatley. It was a lucky break at a time when the Scottish Executive, using taxpayers’ money, was still trying to thwart Shirley’s case. Hundreds of documents were being withheld and access to witnesses frustrated. The whole power of the state was arraigned against them. No leeway was being given and clearly it was to be a battle to the finish. An Executive appeal against the Wheatley judgment was likely, but Shirley and her team would have to fight, as Andrew Smith put it, with one arm tied behind their backs.
Iain was desperate to get the lawyers to address what he saw as the shortcomings in the case. He had a developing fear that should the civil hearing result in expert being pitted against expert, Shirley would lose, not because her experts would be outgunned but because courts were notoriously fickle when it came to contrary expert testimony without any other supporting evidence.
This frustration was not directed specifically at Andrew Smith or the other members of the legal team, whom Iain liked and admired and who were working tirelessly on Shirley’s behalf. Rather it reflected his resentment at the slow pace and deeply introverted procedures of the Scottish legal system. Now, after seven years of the case, Iain had accumulated sufficient knowledge to make him angry at the way that the law in Scotland treated those people it was meant to serve. He became an ever more active player in the preparations, for, although he had confidence in Shirley’s legal team, the consequences of losing another court action were too awful to contemplate. However, Iain’s request to bring Michael Russell into the consultative process was refused and their continuing media campaign caused friction as Jimmy Cassels made it plain to him on more than one occasion that in his view this could alienate the legal establishment. He just wanted the legal process to run unimpeded by any publicity, but Iain and Michael saw the matter otherwise. To them it was a war, and all weapons needed to be deployed.
After seven years of stress it was perhaps not surprising that a man – even a man as fit as Iain McKie – should begin to break down. Iain had been due to give a presentation at Derby University on 12 March and was finding life extremely stressful. Wrongly, he kept much of this to himself. Two days before leaving for Derby while walking in town he had a shivering attack. A urine infection was diagnosed and a dose of antibiotics prescribed. The evening before he was due to leave, he complained of a burning feeling in his chest, nausea and pains in his arms. Mairi phoned the ambulance and he was rushed to Ayr hospital. A little later, at the reception, a nurse told Mairi that Iain was ‘in resuscitation’, being treated for a heart attack, and that he wanted to see her.
At four in the morning, with Iain settled into coronary care, Mairi had the tricky decision of when to start phoning the family. What if he died before she did so? Who should she tell first? Then, as she tells it, ‘About seven a.m., after a sleepless night, the phone rang. I couldn’t believe it. It was Iain, large as life and still in denial. “Why are you on the phone?” I asked, but it was as if he wasn’t listening. “The nurse let me. I’m fine.” ’
He wasn’t fine, however, and during the mid-morning ward round the pain suddenly returned with a vengeance. He was bundled into an ambulance, and, under police escort, they drove to Glasgow, where staff of the coronary care unit at the Western Infirmary worked to stabilise him. Days of tests followed and a heart attack was confirmed. During his time in hospital, Iain had lots of time to reflect. The love he felt from his family shouldn’t have surprised him but it did. It was a time to contemplate his mortality and reassess his priorities.
After eight days – and a few hours before he was due to leave for home – Iain was being counselled on living after a heart attack. Major life changes were involved. At this time, his consultant Professor Henry Dargie approached. He still had some concerns and wanted to perform a MRI scan of Iain’s heart. The scan gave good and bad news: he hadn’t had a heart attack, but he was suffering from myocarditis, a viral infection of the heart, and the prognosis was difficult. Complete recovery was possible but there would need to be a lot of monitoring and more MRI scans. He was warned to take it easy.
Mairi and Iain drove back to Ayr, marvelling at the quality of the medical care he had received but wondering what the future held. It would be impossible just to carry on as before. However, other positives were flowing from his sudden illness. He realised more than ever that a great deal of his motivation came from his feelings of guilt about his behaviour as a parent and the way in which he had pursued his police career at the expense of family life. His separation and divorce had put huge further strains on his relationship with all his children. He needed to continue to re-establish the bonds which had been damaged, but not in a way that inflicted damage on himself and on those around him. He and Mairi had a precious marriage which he must nurture, and whilst he knew he had to continue helping and supporting Shirley, he must share that task with others and not hold it to himself.
Shirley too had looked into the abyss. Now her fears were not about losing the civil case but about losing her father before the scars caused by the years of struggle could be healed. Even though Shirley understood why Iain, in their fight for justice, had been forced to push her into situations in which she would rather not have been, it had resulted in a distance between them. More than anything, she wanted her dad back.
11
A Policeman Calls with a Bill
Day 2,646
Iain spent the last weeks of March and the first week in April recuperating. But the latter part of the month was clouded with more worry. The Strathclyde police board had resolved to pursue recovery of their legal expenses arising out of Shirley’s failed civil action against the police two years previously and had – out of the blue – asked for at least £13,000 which it described as ‘non-disputed’. Other sums in the case might bring the total amount to over £20,000. Shirley did not have this money – the present legal action was being undertaken without fee, with the hope that a win would result in costs paid by the Scottish Executive. Shirley was earning nothing apart from a small pension.
She took the news about the imminent police demand very badly. On top of everything else, it meant that she was now facing the prospect of bankruptcy. She was frequently in tears over the next few days. Her sense of fear and helplessness was compounded a few days later when two sheriff’s officers arrived at her door with a payment demand.
Iain and Michael decided that publicity would be the only effective weapon against this and Michael alerted the Herald, for which he was working both as a cultural columnist and as a contributor of a series of policy pieces. They commissioned a special feature which was published on 7 April 2004 in the same edition as a prominent news story which exclusively revealed the police’s financial pressure on Shirley. The tone of outrage in Russell’s article – he described the whole matter ‘as the disgraceful signs of a forensic system in crisis, a judicial system devoid of integrity and a government without a basi
c sense of decency’ – was taken up by most of the press. Coverage appeared on radio and television too. The story of the police demand headlined BBC Radio Scotland news that morning and there was a strong public reaction to it. In Glasgow that afternoon, Russell was approached by several strangers, all of whom were sympathetic to Shirley. One man simply said, ‘It’s a disgrace what that woman has had to put up with.’
Shirley concurred but she put it more graphically, telling the Sunday Herald feature writer Susan Flockhart that it seemed to her as if she was being ‘assaulted, abused and raped by Strathclyde Police and the justice system’. Flockhart’s piece, which appeared on 11 April, was perceptive and sensitive. She had been at school with Shirley, in the year above her and remembered her as ‘a bright, pretty girl with an impish grin’. She noted that in Shirley’s face now was the weariness and haunted fear of ‘someone who felt she had been humiliated, violated and brought to the point of suicide by the Scottish justice system’.
That week Iain and Michael met Jimmy Cassels who was very nervous that the publicity would hinder the delicate legal discussions going on. Iain, didn’t reassure him, making it clear he was not going to be stifled or forced into line by legal niceties.
They also discussed the pending appeal against the Wheatley judgment, which the Executive had lodged at the very last possible moment in late February. Now a lot of work was going to be required to strengthen the case and ensure that the Wheatley arguments prevailed.
Iain and Michael appeared on Newsnight Scotland that evening. The programme rigorously examined the case once more, highlighting the extraordinary pressure that Shirley was under and the additional burden of the new financial demand from the police. As ever, the Scottish Executive refused to take part, citing the sub judice rule.
At the end of the programme, Craig Williams, the programme editor, took Iain aside and gave him a piece of paper. On it was the name and phone number of someone who had phoned during the programme and who was offering to pay the full expenses demand by the police. Another such offer was received the next day via Bill McFarlan, the journalist who now ran a media-training company and who had long been a strong supporter of Shirley’s case.
Shortly afterwards, Jimmy Cassels, who took charge of the negotiations, was able to tell Shirley that a gift from an anonymous donor had ensured full payment of the police bill. Shirley and Iain were bowled over by the generosity shown by a complete stranger, and a great weight was lifted from Shirley’s shoulders.
Some time earlier, a further case which involved disputed fingerprints and unreliable work by the SCRO had brought the central Scotland regional MSP and former SNP leadership contender Alex Neil into the issue of forensic sciences, and as a result he had become interested in Shirley’s case. He also lived in Ayr, had met with Iain and had started to raise matters associated with the case in the Scottish parliament.
On 9 April he made a public plea for a parliamentary inquiry into the whole affair and argued for the separation of forensic experts from the police, in order to make the justice system more open and accountable. Criticising the Strathclyde Police decision to demand money from Shirley he added, ‘Far from claiming legal costs, they should be paying Shirley McKie compensation for the damage to her health and the loss of her career, which Strathclyde Police and the SCRO, with the latent, if not actual, connivance of others in the Scottish Executive, have caused.’ As time went on, Neil became the principle parliamentary advocate for Shirley. Within the Byzantine maze of internal SNP politics, Mike Russell and Alex Neil had been widely perceived as somewhat edgy adversaries. Now, united in Shirley’s cause, they were to exert even more pressure on an increasingly beleaguered Scottish Executive.
A settlement was also under discussion by the lawyers. Andrew Smith believed it was right to seek out an opportunity for both sides to discuss the basis of their cases and see if there was common ground that could lead to a conclusion. A joint consultation took place on 12 May but the result was a derisory offer which Andrew was not even prepared to consider. So the lawyers on both sides carried on with their preparations for a full hearing which would require several weeks in court. Given the timetable of the Court of Session and the fact that an appeal against Wheatley was still pending, that full hearing was likely to be many months away.
There was a time when the General Assembly of the Church of Scotland acted as both court and parliament for the nation, and whilst its annual meeting in May was now considerably diminished in role, it still had much standing in the country and received substantial publicity.
Shortly before the 2004 meeting, Iain was contacted by Findlay Turner, a church elder. He felt that the church had been silent on an injustice that shamed Scotland and he sought his permission to raise the case on the floor of the Assembly. The Assembly did debate the matter on 17 May. Shirley and Iain watched from the public gallery and heard Findlay Turner, in a moving and passionate speech, describe her as ‘a martyr for the truth’.
‘Shirley was accused of perjury and a young man spent time in prison for a murder he did not commit,’ he said. ‘He might still have been there if Shirley McKie had not stood up. One might expect that the gratitude of society is due. But no. Some seven years after the event, she has lost her job, she had to fight to preserve her pension, she is still severely traumatised and unable to work, and has been placed in the position of having to sue for compensation . . . The trouble here is that for many of us, justice has not been seen to be done.’
The Kirk’s moderator, Dr Alison Elliot – the first woman moderator in its history – added that she hoped that Shirley’s family would ‘feel encouraged by the concern that the Assembly ha[d] shown’. But the lesson to be drawn was also wider, as it proved that concern at the injustice was, as Michael Russell put it, ‘being shown right across the spectrum in Scotland’, and this made nonsense of the restrictions on parliamentary debate about the issue.
Cardinal Keith O’Brien of Edinburgh was also concerned about the case and raised it on behalf of the Catholic Church with the first minister, amongst others. But the Scottish Executive seemed determined to ignore all such views and to continue with its legal defence of what many saw as the indefensible. It was of course such obstinacy that drove Iain and Shirley on and led them to constantly seek new ways of presenting their point of view.
For a number of years the American fingerprint websites run by Kasey Wertheim, the son of Pat Wertheim, and Ed German had been proving just how successful the internet could be in opening the debate. Hundreds of experts across the world had given their opinions and had made life very uncomfortable for the SCRO and the Scottish authorities. Iain thought it was now time for the campaign to have its own website and Bill McFarlan offered to create it through his company, the Broadcasting Business.
After a few weeks it was up and ready to run and www.shirleymckie.com was formally launched on 20 September at yet another press conference, held in Craigie Hall in Glasgow.
The main theme of the discussion was the need for the Scottish Executive to make an early settlement with Shirley and for a public inquiry to find out just what had happened since Marion Ross’s murder. Allan Bayle also presented new evidence from Kasey Wertheim in America using technology developed by LumenIQ, Inc., which he claimed would show the non-experts, as he put it, ‘what the experts have seen for years – that the SCRO experts were wrong’.
Radio and television carried reports throughout the day and the following morning Damien Henderson in the Herald quoted Winnie Ewing, a former criminal defence lawyer herself, surmising why the Executive might not want a public inquiry. ‘I can only think of one reason,’ she said, ‘and that is that there are doubtless languishing in the country’s jails many people convicted on fingerprint evidence alone, and these people will be looking at a public inquiry and then an appeal in their own case. That is what they’re scared of.’
All that had been done was making some difference. The following month Iain was at Sheffield University as a
guest at the annual conference of the International Centre for Advanced Research in Identification Science (ICARIS), where he spoke to a mixed audience of forensic scientists, barristers and expert witnesses about the problems that can occur for innocent people when experts get it wrong. Afterwards, experts queued up to assure him how hard they worked not to get it wrong and – if that ever happened – how quick they were to ensure that any damage was remedied. Most seemed horrified that this was not the case in the SCRO. That month, it was also announced that Shirley and Iain had been short-listed for the Herald’s Campaigner of the Year award, a new accolade which would be presented as part of the prestigious Herald/Diageo Scottish Politician of the Year ceremony.
Some days before the ceremony Iain, Michael and Shirley had met the cross-party group of MSPs in parliament at a meeting arranged by MSP Alasdair Morgan to investigate the possibility of creating political pressure for a settlement. There were representatives of every party and they were joined by the Labour MSP for Glasgow Govan, Gordon Jackson, who was also one of Scotland’s top criminal lawyers. His presence indicated that Labour might be softening its stance.
The meeting discussed an all-party delegation and it was agreed that this would take place if possible. Jackson, without being explicit, made it clear that there was a growing view within the Executive that a settlement would be preferable to full court action. The same position had been hinted at by the justice minister herself in a seemingly accidental conversation with one of Shirley’s prominent supporters some weeks before. Clearly there was a little movement behind the scenes, although why was not yet clear.
Jackson, as a highly experienced lawyer, asked Shirley what her bottom line was. Would she compromise on £750,000? Was she seeking an acknowledgment of liability? If the answer was no to the first and yes to the second he suggested, very subtly, then no deal would be possible. All Iain and Shirley felt able to say was that after seven years, disgusted as they were by the behaviour of the Scottish Executive, they were tired, and the time had come to negotiate an end to the pain. Shirley added, though, that she had to be satisfied that they accepted that she had been telling the truth and that this point was non-negotiable.
The Price of Innocence Page 15
