The Price of Innocence

by Michael Russell

  Meanwhile, the Sunday Herald devoted three pages to a major assessment of the case, with a new story revealing that three experts at the UK’s national forensic training centre in Durham which trains SCRO fingerprint analysts had – in a previously secret report – alleged ‘collective manipulation of evidence and collective collusion’ on the part of the SCRO experts to identify McKie. The Sunday Times in Scotland also demanded a public inquiry, suggesting that pressure on the first minister to deliver was now becoming ‘unstoppable’ and reporting that a whole range of Scottish politicians were joining in this chorus.

  The satirists were also getting in on the act. The BBC Radio Scotland comedy programme Watson’s Wind Up featured the justice minister in a tizzy about the matter and Scotland on Sunday’s weekly fictional diary of Mungo McKay, allegedly a junior minister in the Executive, was full of references to the McKie case including this entry:

  Poor old Cathy is getting very stressed out about McKie. ‘Ah’ve done everything ah was telt ever since ah came intae this joab, and still ah get hung oot tae dry. Why me?’ she moaned. Jack and Boyd spent most of the day locked in a room. There is to be a statement tomorrow.

  There was indeed a statement on 17 February – or rather a letter which the lord advocate wrote to the parliament’s presiding officer, George Reid, and which was simultaneously released for publication. This very strange method of putting information into the public domain appeared to be chosen to make clear that the lord advocate could not behave as others do and be open to question about his decisions. This point was of crucial importance, for in the letter, Boyd claimed that he personally took the decision to prosecute Shirley for perjury and also the decision not to prosecute the SCRO experts. Therefore, he implied, the matter was closed because legally and constitutionally he could not be questioned or held to account for such things.

  This pathetically transparent attempt to close down the matter had no effect. By 22 February – fifteen days after the settlement – the media campaign and public pressure had forced the Executive to try to do something more. On that day Cathy Jamieson and Colin Boyd appeared side by side in the parliament and made statements on the McKie case. The lord advocate spoke first. Looking extremely uncomfortable, he referred to his recent letter to the presiding officer. He went on to explain the background to the Mackay inquiry, referred to the Lockerbie case and finished by asserting that the real issue now was about ‘protecting the role of the independent prosecutor in the public interest’. He contributed nothing new and seemed very out of touch with the mood of the chamber and the public.

  After a brief account of the background to the case, Jamieson concentrated on the issues surrounding fingerprint identification and how it was carried out in Scotland. She declared her determination that ‘Scotland’s fingerprint service should be recognised as world-class’ and announced that she had instructed the interim chief executive of the Scottish Police Services Authority, Deputy Chief Constable David Mulhern, ‘to bring forward by the end of March an action plan to develop the Scottish Fingerprint Service as an integrated part of the new Scottish Forensic Science Service from April 2007’.

  She concluded with some words about the settlement. ‘I firmly believe that settling with Ms McKie was the right thing to do. Right for her – as fair recompense for all that she has been through. Right for our fingerprint service and its staff – to allow them to move forward as part of a new national forensic service and central police authority. And right for the Executive – as an appropriate settlement that is defensible for the public purse.’ Yet despite pressure from a variety of questioners, she could not account for the fact that this ‘right thing’ had taken the best part of six years to be achieved and that for almost three of those years she had been in charge. She was deliberately, it seems, creating some sort of balance between Shirley and those who, as she put it, ‘were alleged to have wronged her’. This approach to the matter was to be seen again in the work of the parliamentary inquiry, although, as expert Arie Zeelenberg rightly observed, lies and truth can never, and should never, be balanced.

  The statements may have steadied Executive supporters but they did nothing to satisfy the media or Scottish public opinion. The next day the Scotsman reported that the Criminal Bar Association, which represents Scotland’s most senior criminal defence lawyers, was leading calls for a public inquiry. Lord McCluskey, a retired High Court judge and former Labour solicitor general, argued, ‘The present miasma of secrecy threatens to choke the Scottish criminal justice system,’ and in a massive rebuke to the lord advocate, he emphasised that at issue was the internal faulty working of the SCRO:

  Did officers lie, or just make a mistake? If they made a mistake in such a matter – when the evidence repeatedly given to juries by SCRO fingerprint ‘experts’ is and always has been that the chances of a mistake are billions to one – how on earth could the McKie mistake have happened? When the mistake was challenged, and more particularly, when it was demonstrated by outside experts, why did it take years to acknowledge that a ‘mistake’ had been made? Are those who perpetrated this serious error, and those who backed them up in various ways, still presented to juries as ‘experts’ of unimpeachable reputation?

  Lord Mackay of Clashfern, who had been lord chancellor, as well as lord advocate, joined in a few days later, adding his massively influential voice to the demands for a full public inquiry. The press was getting stronger in its condemnation of the political handling of the matter and was digging even deeper into its implications. Iain Macwhirter, in a very thoughtful piece in the Sunday Herald, observed, ‘This is such an astonishing case, more bizarre and improbable than detective fiction . . . what it tells us about our criminal justice system [is] that it would rather destroy innocent lives and allow crimes to go unpunished than face up to its own fallibility.’ Eddie Barnes in Scotland on Sunday reported that Jack McConnell had sought out Iain in the parliament canteen in order to shake his hand and pass on his best wishes to Shirley. ‘A courtesy call or an olive branch?’ Barnes wrote. ‘One thing was certain in Holyrood last week: this retired police officer from Ayr had the leaders of the Scottish Parliament at his beck and call.’

  One of those who had questioned the justice minister after her statement had been Pauline McNeill, the convener of the parliament’s Justice 1 committee. It was clear that the committee was considering an inquiry into the matter, although McNeill was reluctant to be drawn in to it, seeing that it would require huge resources and much time. Cathy Jamieson was equivocal too, although to some it seemed that the Executive might find a bolt-hole from the pressure for a judicial public inquiry if it encouraged a much narrower parliamentary one which would have no legal powers or sanction. As February drew to a close, it began to look as if exactly such a compromise was being prepared behind the scenes, particularly as the pressure on the Executive was not easing, despite the passage of time.

  A new element adding to that pressure was about to come to the fore. On 1 March the Scotsman broke the news that the four SCRO experts had engaged the services of Les Brown, ex-detective chief inspector, and a group called A Search for Justice, to try to establish their innocence. SCRO expert Fiona McBride, apparently acting with the authority of the other three experts, commented, ‘The McKies have shouted and shouted about how dreadful things have been for them, but our reputations have been shredded in the media and we have not been able to say anything in our defence.’

  A Search for Justice had been founded by Bryan Davies in memory of his 84-year-old mother who was found dead in May 1998, lying behind her open door. The police concluded that she had fallen down the stairs and, despite Bryan’s protests, refused to mount a proper inquiry. But Bryan, with the help of Marion Scott, an investigative journalist, and Les Brown, had managed to prove that his mother had been a victim of crime. Nonetheless, the police kept contending otherwise until 2006 when they suddenly changed their minds and appealed for witnesses – some eight years after the event!

 
Iain thought highly of the work the justice organisation had done so far and he was surprised that it was prepared to take on the SCRO experts. Then he was contacted twice by journalists who claimed that a named source, who alleged he was speaking for A Search of Justice, had contacted them with what he said was ‘inside knowledge’ of the McKie case. This turned out to be a lurid repetition of the allegation that Shirley had been in the house with her married police lover, re-told with all the graphic sexual detail. The journalists regarded what they had been told as a crude attempt to blacken Shirley’s reputation.

  Iain immediately contacted Bryan Davies, who explained that he too was very concerned about the recent press reports. He confirmed that Les Brown had no authority to speak for the organisation and as far as he was concerned the group was not taking on the job of speaking for the experts or inquiring into the case. Bryan was also revolted by the sexual allegations made by someone claiming to be part of the organisation. He and Iain agreed on a statement dissociating the group from ‘the malicious information being spread about Shirley McKie and her family’.

  On 2 March, Iain, Mairi and Michael were back in the parliament to attend a debate on a motion, sponsored by the SNP but signed by the Conservatives and the Greens as well, which called on the Executive to address concerns about the case by means of a public inquiry. But the Executive parties – Labour and the Liberal Democrats – were if anything now more firmly against any such review. In a speech which Michael later described in print as a ‘deeply unpleasant illustration of all that is wrong with Scottish politics today’, the Liberal Democrat Jeremy Purves indulged in a barrage of political point-scoring, urging that the chamber support the ongoing work of the Justice 1 committee on the matter, though there was no such ongoing work confirmed at that time.

  In the debate Jim Wallace spoke publicly about the case for the first time since the settlement, claiming that if he were to have embarked on a cover-up, as accused, then he would not have come to parliament as soon as HMCIC had told him that the bureau ‘was not operating efficiently and effectively’. Tellingly, he did reveal why he failed to implement a settlement whilst he was in office, a matter which was well within his power.

  After the debate, Iain, Mairi and Michael went to have coffee with a number of MSPs in the parliament’s garden lobby. Another debate was getting underway, but half an hour later Michael observed most MSPs and ministers milling about at the foot of the steps leading to the chamber. The sitting had been suspended because a twelve-foot oak slab had suddenly swung loose from the roof, pivoting through a seventy-degree arc before stopping against a metal rod, inches from a glass panel above the Conservative back benches. No one was injured, but the incident, just seventeen months after the £414 million building opened, left officials and MSPs deeply embarrassed and looking for a new home until the damage was fixed. It also meant that a vote on the SNP motion could not take place that day. MSP Margo MacDonald’s later jocular comment that it was rumored Shirley’s prints had been found on the beam, while humorous, summed up the cynicism that was felt about the Executive’s duplicity.

  This hiatus, however, did not stop the almost ceaseless coverage and commentary on the case. On Saturday 4 March at the SNP National Council, Alex Salmond devoted part of his leader’s speech to the topic, claiming that the issues in the McKie case went ‘right to the heart of the justice system in Scotland’. The next day Scotland on Sunday – still allocating much space to the matter – had input from some of the country’s foremost lawyers who were increasingly concerned at the failure to resolve matters within the SCRO. Jim Keegan, one of Scotland’s busiest solicitor advocates stressed the concern felt by criminal court lawyers. ‘Over the past year or so, the suspicion has grown that there are chronic problems at the SCRO and that everything they handle has to be heavily scrutinised.’ The paper also quoted Shirley’s trial QC, Donald Findlay. ‘Fingerprint evidence used to be considered as sacrosanct. Now I would be more inclined to challenge it. For all we know, people may have been convicted wrongly on fingerprint evidence, and that is an appalling business.’ The following day the Scotsman took up the refrain, reporting that the lord advocate, the current minister for justice and Jim Wallace, former minister for justice, had all refused to give precognition statements to Shirley’s legal team, claiming that they did not have any ‘relevant evidence’. This might be construed, as Fergus Ewing put it, as a ‘refusal to do their duty as citizens’.

  The first minister now decided to fight back, and, taking up a theme which was much used in private by Labour ministers and members, was quoted as saying, ‘The calls for a public inquiry are politically motivated and designed to turn this into a political debate rather than a debate about the justice system. I’m concerned that those who are politically motivated are therefore, deliberately or otherwise, having an impact on the reputation of our justice system.’ Lord Mackay of Clashfern and Lord McCluskey were angered by his suggestion that there was any political dimension to their pleas for a public inquiry. The former responded, ‘I was not asking to have an inquiry about the Scottish Executive but to review practice in relation to fingerprinting,’ whilst the latter stressed, ‘My concern is that the criminal justice system is being gravely weakened by the secrecy lying behind the whole McKie saga and the total failure of ministers to come to grips with that.’

  Worse was to come for McConnell. On 8 March, Scotsman reporter Eben Harrell re-ignited the whole issue of a Lockerbie connection with the McKie case:

  The FBI met senior members of Scotland’s forensic service to ensure the Shirley McKie affair was ‘swept under the carpet’ and so avoid any embarrassment in the run-up to the Lockerbie trial, according to an investigator into the bombing. Juval Aviv, who was Pan Am’s senior Lockerbie investigator, said officers from the Federal Bureau of Investigation travelled to Scotland to pressure the Scottish Criminal Record Office into a swift resolution of the McKie fingerprint case. Mr Aviv said that during discussions with two senior members of staff in the fingerprint laboratory at the SCRO in 1999 or 2000, both told him they had misgivings over the evidence against Ms McKie but had been urged to ‘fall in line with the evidence’.

  Harrell went on to reveal that part of the case against Abdelbaset Ali Mohmed al-Megrahi involved a contentious fingerprint lifted from a travel document in Malta. ‘The fingerprint had only twelve matching points to suspected bomber Megrahi; many courts require sixteen matching points. Although the SCRO had nothing to do with identifying it, the credibility of the fingerprint was important.’

  According to Harrell, and as Iain had suspected previously, the timing of the two cases was crucial. ‘In 1999, a year before the trial was due to get under way at Camp Zeist, the McKie controversy blew up,’ Harrell wrote. From sources within the SCRO, Mr Aviv had heard about the McKie case and the FBI putting pressure on the labs. The FBI had visited Scotland and had met several times with people in charge to discuss falling in line with the McKie evidence. According to Mr Aviv, the SCRO ‘was under pressure from the FBI to manufacture evidence to suit this trial and convict the Libyan. [The FBI told it] any scandal that could taint this evidence could really interfere with Lockerbie and should be put under the carpet.’ Mr Aviv also said the FBI visit was part of a larger effort to gain consensus among Scottish investigators over Lockerbie evidence. The sources he spoke to were appalled. ‘That’s one thing that you do not do – interfere with a court case in The Hague and accuse two people who could get life in prison with manufactured evidence,’ said Mr Aviv. However, he would not reveal the SCRO sources nor allow the Scotsman to interview them, despite promises of anonymity. He also refused to provide details of which FBI officers visited Scotland and could not recall the exact date of the visit.

  Whilst these allegations were uncorroborated, the leading Lockerbie campaigner, Dr Jim Swire (whose daughter Flora had been killed when the Pan Am plane exploded over the Scottish town) felt there could be something to Mr Aviv’s claims. He told the Scotsman, ‘Juval A
viv’s comments seem to tally with previous reports that there may have been pressure brought on the SCRO by the FBI, which might have amounted to, or contributed to, a perversion of the course of justice in the McKie case, and that this pressure may have been motivated by an improper attempt to protect the interests of the burgeoning Lockerbie case at the time.’

  Harrell reported that the SCRO had admitted visiting the FBI around that time but that they claimed that this visit was ‘totally unrelated to the McKie case’. Iain was not the only one to find that comment impossible to believe, for the story was carried by news outlets across the world. At Westminster, Alex Salmond quizzed Tony Blair at Prime Minister’s Question Time and asked him to join in a call for an independent judicial inquiry following the Scotsman’s revelations. He declined to do so.

  The accuracy of Eben Harrell’s analysis of course depends on the veracity of his informant, Juval Aviv. When Mr Aviv’s Lockerbie investigation was published in the early 1990s, noted Harrell, several government agencies questioned his credibility, suggesting he had lied about his background. ‘Mr Aviv, a dual US-Israeli citizen, has said he was an agent for Mossad, the Israeli intelligence service, from 1968 to 1978. And in 1994, Mr Aviv was charged with mail and wire fraud after an investigation by the FBI . . . At the trial in 1995 in New York, Mr Aviv . . . was acquitted. The judge, Louis Stanton, questioned why the FBI had gone out of its way to prosecute Mr Aviv . . .’

  Were both Mr Aviv and Shirley charged in order to be silenced? Only time will tell if, as is hoped, the many mysteries of both cases are eventually revealed.