The Price of Innocence

by Michael Russell

  13

  ‘An honest mistake’

  Day 3,319

  The hearing was set to start on Tuesday 7 February 2006. Five days before, another settlement meeting took place between the legal teams. The Executive counsel indicated that it was about to make another increased offer, and the following day a tender of £600,000 was lodged. Andrew’s instincts were proving correct, so once again the sum was refused.

  The morning of the hearing arrived and the truth about the case that had dominated so many lives was about to be told. Shirley, Iain, Mairi and Shirley’s ex-police officer brother Stuart travelled to Edinburgh, apprehensive but optimistic. Allan Bayle, Pat Wertheim and Arie Zeelenberg were in the city too, ready to appear as witnesses. The precincts of the court, those historic cobbled squares and thoroughfares around St Giles, were teeming with journalists and cameramen, as well as the usual tourists and bystanders curious to find out what the fuss was about. But the hearing did not start as planned. The judge, Lord Hodge, had been told that negotiations for a settlement were continuing but that more time was needed. Iain and the others went to a nearby café while Shirley and Stuart waited nervously outside the room where the lawyers were haggling.

  The first offer was the sum tendered in court the week before – £600,000. It was refused. Half an hour later the offer was raised to £700,000 but this was also refused. Andrew had already made it clear where the bar was set and as Gordon Dalyell had noticed that the Executive team had arrived without the mass of papers that they should have been carrying, both he and Andrew believed that they intended to settle and did not want to go to a hearing.

  At 10.40 a.m. the Executive offered the full £750,000. Andrew and Shirley conferred. She was still unhappy that there was to be no admission of liability, but she also realised that if she refused and the trial took place, she could be locked into the biggest and riskiest fight of her life, battling against an Executive that had limitless resources and time. Even if she won, the court might not award as much and massive expenses might have to be paid. She saw that she had no option but to accept and she therefore told Andrew to take the offer. He did, but he insisted that it be finalised in open court.

  Stuart then dashed across to the café. ‘We have a settlement!’ he told the family, who were too relieved and delighted to do much except hug one another. Then they quickly went across the lane to hear the details of the settlement read out. Shirley was awarded £750,000, plus expenses, but without an admission of malice.

  In the forty minutes of negotiation the sum had risen by £150,000. That was, to put it another way, £3,750 per minute or £62.50 per second. The final figure was more than double that which had been on offer in autumn 2005. It was a stunning vindication of Shirley’s position over nine years and a complete admission of defeat by the Executive who, two years previously, had been confident they could stop the case ever going to court without having to pay a penny. Now, when it was clear Shirley was prepared to challenge them in open court, they had totally capitulated.

  Even at that moment of extraordinary joy, Iain wondered what it was they had to hide –whatever it was, it had been worth three quarters of a million pounds of public money, plus large expenses on both sides, just to stop it coming out. Obviously they were afraid of something.

  As Shirley emerged into the wintery Edinburgh sunshine, hand-in-hand with her brother Stuart, hugging Iain and Mairi and flanked by Pat Wertheim, Arie Zeelenberg and Allan Bayle, she was faced by a dazzling array of television cameras, photographers and reporters.

  With Iain’s arm protectively round her shoulder and with cameras going off all around her, the first question came from the BBC’s Elizabeth Quigley. But before Quigley had finished speaking, words just rolled out of Shirley. ‘It’s been hell on earth,’ she said, ‘it’s been a nightmare. I don’t how I’ve actually got here. I’ve felt for many, many years this day would never ever come. Huge relief . . . I just wish that someone had come to their senses a long, long time ago. No one should have to go through this . . . no one’s family should have to go through this.’

  Then there were more and more questions. The BBC website reported her as adding at some stage, ‘I do hope that the people responsible are made to be accountable for what they have done. There are serious criminal charges which should come from this. It has been obvious for years there were criminal goings-on in this case and it has been continually covered up.’

  Shirley and Iain stood for an hour responding to all the questions and then they made their way to a nearby pub, from where Iain phoned Michael. He had already heard though, for within minutes of the settlement in court he had been phoned by BBC Scotland and had done a live radio interview. He was surprised that the sum had been quoted to him as ‘breaking news’ as he had expected that it would be concealed under a confidentiality agreement with Shirley, but he was then stunned to discover from Iain that the Executive had not sought any such thing. By failing to do so, he felt sure they had guaranteed that the matter would run and run in the media and in the parliament.

  The Executive was clearly in some turmoil as it struggled to account for its massive pay-out. Its only formal response was to say, ‘This settlement has been made on the basis that the identification was an honest mistake made in good faith.’ The SCRO – the source of this supposed ‘honest mistake’ – was making no comment, but Unison, the union representing the experts, did have something to say. Anne Russell of the union was vigorous in her defence, asserting of the experts, ‘we believed them at the start of this and we believe them now. They acted correctly and had no reason to do otherwise. The matter was placed before the procurator fiscal and no action was taken – that’s because there was no case to answer.’ She added, ‘Staff were devastated when news [of the compensation award] came through.’

  The settlement was big news and it remained big news for weeks. The family organised an extremely well-attended press conference in the Scottish parliament on the following day, at which Shirley was strong in her condemnation of the way she had been treated. All the participants – including Arie Zeelenberg, Allan Bayle and Pat Wertheim, who spoke alongside Alex Neil, Michael Russell and Iain – called once more for a full judicial public inquiry. In what must be virtually unprecedented coverage of any legal story, articles about the settlement and its aftermath featured on the front pages of some papers almost every day for the next week, and continued to feature regularly for over a month. For four successive Sundays, it was front-paged by both the main Scottish Sunday titles. BBC Scotland’s flagship Newsnight Scotland programme covered the case every night for almost a fortnight. The Scottish media had shown and would continue to show that they were capable of forcing reluctant politicians to act, and of mounting a coordinated, sustained and effective campaign against injustice. The UK and overseas media were also giving the story prominence.

  All this coverage was fuelled by various factors: the complete inability of the Scottish Executive to explain why they had settled, regular leaks of information to journalists, and the growing number of prominent figures in Scotland who were supportive of the need for a full public judicial inquiry. It was also sustained by the clear public disquiet at what had transpired over nine years. Shirley, Iain and Michael were now often stopped in the street by strangers passing on their good wishes.

  The first direct question to the first minister about the settlement came on 9 February at the regular First Minister’s Question Time. Alex Neil – now the leading parliamentary expert on the case – asked Jack McConnell whether he would now order an independent inquiry into the Shirley McKie case and the issues surrounding it, pointing out that there was a ‘worldwide lack of confidence in the Scottish Fingerprint Service’ and that the Executive had ended up losing £2 million that could have been saved if the case had been settled at the right time. The £2 million figure was an aggregate of the settlement plus the estimated legal costs on both sides for Shirley’s civil action. It took no account of civil service time or a
ny of the other expenditures over nine years.

  In his reply, McConnell referred to investigations into elements of the case that had ‘proved that the fingerprint evidence used in this country [was] reliable’. But then he went too far, picking up the words that had been used in the official response to the settlement: ‘In this case, it is quite clear – and this was accepted in the settlement that was announced on Tuesday – that an honest mistake was made by individuals. I believe that all concerned have accepted that.’ It was a mistake that was to haunt him for months, for his claim was quickly to be challenged not just by Iain, but also by the SCRO experts themselves.

  The letters columns of the newspapers were also filling up with comment about the case. Amongst many others, Ian Hamilton QC, a doughty fighter for justice, wrote to the Herald: ‘The necessity for an enquiry into fingerprint evidence grows stronger every day . . . I find the lack of confidence in the SCRO devastating.’ An ex-detective from Prestwick, Bob Johnstone, added his voice to the clamour for a public inquiry, commenting that he thought ‘the silence from the SCRO hierarchy . . . deafening.’

  One rare dissenting voice came from another ex-policeman, former Detective Chief Inspector Les Brown. Nicknamed ‘Jackanory Tell A Story’ by some of his former colleagues because of his alleged story-telling powers, he was known to have a large ego and to be a regular source of information for Glasgow crime correspondents. Mr Brown was soon to push himself into the case and as a preparatory exercise he wrote to the Herald to assert that in his twenty-five years of dealings with the SCRO, he had ‘never had cause to question its identifications’.

  In addition to the public comments, there were lots of messages of goodwill arriving by post. Several were addressed to ‘The Fingerprint Girl, Troon’. Shirley was on a high after the settlement of course, but her long-term depression was still there under the surface and she was badly upset when she opened a letter which was full of abuse. ‘You are the scum of the earth and you and your dad deserve to be shown as you are,’ it read. ‘By the time you pay off your team of liars you will be left so little . . . God what low-lifes.’ Even though this was the only piece of hate mail she received, it was agreed that from then on her letters would be screened, just in case.

  On Friday 10 February Iain received a telephone call from Eddie Barnes at Scotland on Sunday. He had been sent a copy of an official summary of the full Mackay report on the police inquiries into allegations of malpractice and criminality completed in 2000. This was the vital report that the lord advocate had successfully covered up for nearly six years. The story would be front-page news on Sunday and the paper had also asked Michael Russell to write a first-person commentary piece as part of the paper’s intended coverage. The paper’s editor – the young and dynamic Iain Martin who would soon leave for a post with the Telegraph group – was committed to pressing for the public inquiry he was sure was now needed.

  The newspaper devoted several pages to the story, but it was the leader which thundered the paper’s condemnation of the way that Shirley had been treated. Martin’s editorial was blunt and to the point:

  Anyone who thought classic miscarriages of justice were limited to foreign legal systems will be shaken out of such complacency by the treatment of Shirley McKie at the hands of Scottish justice. Today we reveal the findings of an inquiry into her case which identified evidence of ‘cover-up and criminality’, ‘manipulation’ and ‘collective and cultural collusion’ among staff of the Scottish Criminal Record Office (SCRO). Yet the report’s recommendation that there was sufficient evidence to support criminal charges was not acted upon by the Crown Office.

  It concluded in a way that could leave no doubt about the paper’s view – a view it believed was shared by most of its readers:

  there is only one course that Jack McConnell can pursue: he must order a fully independent public inquiry . . . the McKie case is so grave a blot on our justice system and exposes so many lacunae in communication between officials and ministers that no lesser option will suffice.

  The front-page story had some interesting details. For example, according to journalists Marcello Mega and Arthur MacMillan, there was documentary evidence that ‘as long ago as the summer of 2001, government lawyers knew that she was the victim of a government agency prepared to stop at nothing to protect its flawed procedures from public scrutiny’. They also quoted Mackay’s report verbatim, including his damning conclusion that it was his view and the view of his inquiry team that ‘there was criminality involved in the actings of the SCRO experts . . . it should have been patently obvious to those involved that a mistake had been made and there were opportunities then for the mistake to be acknowledged and dealt with’.

  It seemed the press was now receiving a flood of inside information, presumably from people disgusted by what had taken place, and this impression was reinforced by the front-page splash in the Sunday Herald. Liam McDougall (who would, later in 2006, be short-listed for the prestigious Paul Foot award because of his coverage of the case) had his own scoop. Previously unseen documents indicated that six years earlier two leading fingerprint experts had told police that the forensic case against Shirley was ‘fabricated’ and ‘verged on malpractice’. These documents would, McDougall wrote, ‘expose how the case has opened up a massive rift in the Scottish Fingerprint Service [and] place a huge question mark over whether the Shirley McKie misidentification was an “honest mistake”.’

  McDougall had been passed the minutes of a presentation undertaken by two SCRO experts at the Scottish Police College at Tulliallan in August 2000. It was made to Arie Zeelenberg and Torger Rudrud, in their role as the outside international experts who were advising HMCIC during his investigation into the SCRO. Others present included James Mackay.

  McDougall also had a copy of the highly confidential international experts’ assessment of the SCRO presentation, which concluded, ‘a number of generally accepted principles of fingerprint comparison are ignored or at least not applied properly . . . the presentation of the SCRO has not altered our conclusion that the investigated latent is not from Ms McKie. In fact, the SCRO delivered additional proof of that.’ The Sunday Herald also quoted an unnamed source who said, ‘At first sight [the SCRO case] looks very impressive, showing forty-five points in sequence. When you look at it in detail, however, it’s just Disneyland . . . There are a lot of invented points and another three points where they have taken the grooves in the wood . . . It’s all fantasy. This is not the fingerprint of Shirley McKie and that’s been known by the SCRO for years.’

  Shirley was not keen on doing interviews but she did agree to appear on the BBC Sunday Live radio programme on 12 February – the day these stories were published. ‘It’s been nine years since this all started,’ she said. ‘They said the Scottish Criminal Record Office was correct and I was wrong. Now, all of a sudden they are saying it was a mistake. In the first few days, yes, it was a mistake, but since then it has been cover-up after cover-up after cover-up.’ She admitted that she could not quite believe that she had finally received compensation from the Executive. ‘It still hasn’t sunk in yet,’ she said. ‘This has been such a long time coming.’ Thanking everyone who had supported her, she admitted, ‘I’ve been very scared to think about what I might do in future.’

  In truth, Shirley’s every inclination at this stage was to escape as fast and as far as she could. The merest accidental contact with the case – a word from someone, or a phone call – could re-ignite her fears and plunge her back into a deep depression. She felt completely drained and exhausted and she was making it clear to those around her that she had no stomach for a further campaign. Indeed, she told every journalist who asked that if the public and the media wanted a public inquiry, they would have to fight for one. She could do no more.

  This was a crucial moment for Iain. He had set himself the objective of securing compensation for his daughter and clearing her name. He wanted a public inquiry because he felt it would achieve the latter a
nd expose the wrongdoing, not just within the SCRO, but also within the Executive and the Crown Office. But Iain too was worn out after nine long years, and a big part of him was keen to return to something like normality. If Shirley too was desperate for closure, was it right to keep pushing on?

  Regardless of Iain and Shirley’s feelings, it seemed the campaign was developing a life of its own, with the press and the public increasingly demanding answers. They seemed to be in agreement with Michael, who wrote that weekend:

  Governments don’t award such compensation because of ‘honest mistakes’. They offered everything that Shirley had sued for because they knew that allowing the case to proceed would have meant bringing into the public domain the real facts behind a shocking ministerial dereliction of duty. It would also have exposed acts of criminality at the very heart of the Scottish legal system, the Scottish Criminal Record Office.

  On 16 February Strathclyde Joint Police Board joined the call and at the beginning of the following week Cathy Jamieson, the justice minister – who had avoided any media interviews for the best part of a fortnight – hinted that she might support the idea of a parliamentary inquiry, although she was still set against a judicial one.

  Sunday 19 February brought more new revelations in the papers, including an allegation in Scotland on Sunday that Jim Wallace, when justice minister, had known that the SCRO officers had, according to Mackay, acted criminally. Once again the paper devoted its leader column to the matter, arguing the incontestable need for a public inquiry: ‘There can be no room for secrecy and cover-up in a situation that could have cost an innocent woman her freedom. Nothing short of a public inquiry can now restore confidence in our justice system.’