The Price of Innocence

by Michael Russell

  The Lockerbie connection later arose in another way. In a June 2006 interview on Al Jazeera TV, Dr Hans Koechler, the United Nations-appointed international observer of the Lockerbie trial, made the link between the two cases when he was reported as saying, ‘In light of the revelations in the British and Scottish media about the tampering with evidence, planting of evidence at the crash site, lack of reliability of forensic experts, interference of intelligence services, lack of credibility of key witnesses etc. in the Lockerbie case, and in view of the recent McKie fingerprint scandal (involving Scottish police), a thorough review of the conduct of the trial and appeal proceedings at Camp Zeist in the Netherlands will be indispensable in order to restore confidence in the Scottish judicial system.’

  Whether or not there was a Lockerbie connection may never be discovered, but it certainly helps make sense of the perplexing behaviour of the police, the lord advocate, the Crown Office and the Scottish Executive, and also of why Shirley was treated as she was. It is tempting to conclude that there was such a connection, and it seems possible that Shirley became a victim of the effort to keep the reputation of Scottish forensics unblemished as, with the world looking on, Scottish justice prepared to adjudicate on this horrendous act of terrorism.

  Jim Swire and Iain had never met, but they got the chance to do so in Edinburgh at the Court of Session on 9 March, where Iain was attending a hearing concerning enhanced expenses for Shirley’s legal team. Although this was refused on a technicality, it brought a further spotlight to bear on the delaying tactics of the Executive. After the hearing Iain and Jim Swire took part in a press conference during which Dr Swire said, ‘I do believe that [the McKie and Lockerbie] cases between them reflect crucially on the international reputation of Scotland’s criminal justice system.’

  After the press conference they attended a bad-tempered session of First Minister’s Questions. The night before the delayed vote on the SNP-sponsored call for a public inquiry had resulted in a 51 to 64 defeat and the first minister used this as a reason ‘to move on’.

  It was now clear that McConnell was determined to resist whatever pressure came for a genuine independent look at the matter. Even though a recent Herald readers’ poll had put support for an inquiry at ninety-three per cent of respondents, he was presumably calculating that the fuss would die down well before an election.

  Nicola Sturgeon, deputy SNP leader, better reflected the public mood, reminding the first minister of continuing disquiet which had been further fuelled by another BBC Frontline Scotland documentary, ‘Shirley McKie: The Whole Truth’, broadcast the previous evening. She also reminded the first minister of revelations that the Crown Office had withheld vital evidence from the defence in another case – that of Nat Fraser who had been sentenced in 2003 to twenty-five years in prison for allegedly killing his wife Arlene, a crime he continued to deny.

  Scotland’s notable figures were also not giving way – The Sunday Times now ran pictures of twenty-one of them, including Lord McCluskey, Donald Findlay QC, actors and directors Hardeep Singh Kohli and David Hayman, author Ian Rankin and Lord Mackay of Clashfern who all, according to reporter Kenny Farquharson, now supported a public inquiry. In a fullpage spread under the headline ‘Memo to Jack: Can all of these people be wrong?’ he commented, ‘Apart from the crowd belting out “Flower of Scotland” at Murrayfield, it is almost unknown for such a disparate group of prominent Scots to be found singing the same tune.’

  If such disquiet was not enough, on 16 March Nicola Sturgeon broke the news that Grampian expert Gary Dempster, who along with two colleagues had so courageously submitted a report showing the SCRO’s identification of Shirley’s print to be wrong, was now facing a disciplinary inquiry for speaking to Frontline Scotland.

  All this set the context for the next meeting of the parliament’s Justice 1 committee, which was now increasingly likely to take on some form of inquiry, partly to save the Executive’s face and partly to meet at least a little of the clamour for some answers. The key issue for the committee at the outset, however, would be the breadth of its remit. Whilst opposition members, the press and the public were calling for a comprehensive review, the Executive – backed by the Labour members of the committee – were talking of means by which the number of witnesses might be limited and the scope of the inquiry restricted. Off-limits would be any discussion of political responsibility and the apportioning of any blame. Similarly forbidden would be any examination of court cases or decisions by the lord advocate.

  Iain was present when the committee met in a modern, bright room at the parliament building. The committee consisted of seven MSPs. Convened by Pauline McNeill (the MSP who had disgusted Shirley by shouting ‘Rubbish!’ when Michael Russell’s debate was cancelled in May 2002), the other Labour members were Mary Mulligan and Marlyn Glen. Mulligan had been chair of the parliament’s education committee from 1999 to 2000, had then been the aide to ill-fated first minister Henry McLeish and subsequently a junior health minister. Glen, elected in 2003, was an unknown quantity, but had apparently privately told colleagues that she was too busy to spend a lot of time on the McKie case.

  The Liberal Democrat was the independently minded Mike Pringle, who had won Edinburgh South from Labour in 2003 and who was therefore not close to his coalition partners. The Conservative, Margaret Mitchell, was also from the 2003 intake and whilst she had made a speech supportive of Shirley in the parliamentary debate, she was soon to be identified as being hostile to her and her case.

  The two SNP members were Bruce McFee and Stewart Stevenson. McFee, a former SNP leader on Renfrew Council, had recently announced that he was not going to stand again, although he had only been a member since 2003. He was believed to find the parliament stifling and unproductive and it was rumoured that he wanted to re-enter local government. Stevenson, a close ally at one time of Alex Salmond and the member for Salmond’s old seat of Banff and Buchan, was a maverick, highly intelligent but completely unpredictable.

  Mike Pringle outlined his proposal for a remit which, whilst not touching on the matter of political responsibility or the decisions of the lord advocate, was broader than that proposed by the committee clerks. But Bruce McFee then explained that he thought the remit should go wider still, ‘in order to understand fully the background to the loss of public and international confidence in the Scottish Fingerprint Service, if not in the Scottish justice system itself’. Brian Adam (standing in for Stevenson) and Margaret Mitchell also indicated that they wanted a broader remit, but opposition from the Labour members was firm.

  The convener made an additional and very prescient plea in support of her desire for a more restricted remit, suggesting that the committee should not be made the forum for a public inquiry, as it did not have the skills to examine forensic evidence presented and adding, ‘The minute that we take a view on the reason for the misidentification or that there was no misidentification, we take a view on whether the court decision was right or wrong . . . That decision is a given. The court decided to accept the evidence that the fingerprint did not belong to Shirley McKie . . . I, for one, will put my hand up and say that although I regard myself as a competent politician, the forensic examination that would be required to go through the evidence and make a determination on it would be a step too far.’

  Unfortunately she did not stick to these early principles and allowed her inquiry to be fatally undermined.

  Eventually the committee voted and the Pringle view prevailed. There would be an inquiry, and it would not be as narrow as Labour had wanted, although it would not be as wide as Iain thought essential. But he was a little heartened by McNeill’s assertion that this would not be a substitute for a public inquiry, nor would it be a re-trial of the fingerprint evidence. He and Michael decided that they would not oppose the parliamentary inquiry, though they would also not give up on the campaign for a full, independent judicial one.

  When the call for evidence was published the inquiry remit was laid out:r />
  to consider the efficient running of the Scottish Criminal Record Office and Scottish Fingerprint Service; the implications of the McKie case; the operation of SCRO and within that the fingerprint service and public confidence in the standards of fingerprint evidence in Scotland; to scrutinise the implementation of recommendations of Her Majesty’s Inspectorate of Constabulary primary inspection report of 2000 and to ensure that their service is efficient and effective; and to scrutinise the action plan announced by the minister for justice for improvements in fingerprint and forensics services in Scotland.

  It was asked that evidence be brief (normally no more than four sides of A4 in total) and it was stated that evidence including defamatory statements or material would not be published or considered by the committee. The deadline for receipt of written submissions was set for 27 April 2006.

  Regrettably the committee completely failed to adhere to its own published rules. In the lead-up to the inquiry’s first oral session, written submissions were still being published and this continued until September 2006 as witnesses sought to justify themselves in the face of the evidence as it unfolded. Not only was the submission date being flouted but the guideline length was totally disregarded by many of the witnesses. A major offender in this respect was Peter Swann’s lawyer, David Russell, who was allowed to flood the inquiry with dozens of documents and papers attacking anyone opposing his client and the SCRO. In his first two-part submission, he forwarded 158 pages, including a 16-page statement from his client Peter Swann, and in another submission published on 13 July, Mr Swann submitted a total of 87 pages.

  As Iain waded through these documents he quickly realised that David Russell’s submission was full of selective quotations, half-truths and innuendo. A classic example appeared in a submitted statement from his client Peter Swann where it was alleged that a complaint Iain had made about Swann to the Council for the Registration of Forensic Practitioners (CRFP) had been withdrawn because Iain and Shirley had made false statements and therefore could not be relied upon as witnesses.

  The truth was somewhat different as Mr Kershaw, the chief executive of CRFP, explained when Iain drew this material to his attention, saying, ‘Mr Swann’s references to the content of my letter to Lord Lofthouse appear to be selective and represent a very small part of the whole. That is regrettable but we cannot, of course, control Mr Swann’s activities other than in circumstances where he commits a breach of the Code of Conduct.’

  David Russell’s derogatory letter of 28 April 2005 to the lord advocate (which had been circulated within the Scottish Fingerprint Service by Euan Innes and had been a major factor in the Grampian experts preparing their reports) was also published. A number of other submissions also gave real cause for concern and that of ex-police officer Les Brown, who had taken up the cause of the SCRO experts earlier in the year, was particularly offensive. Not only did he falsely accuse Iain of closing down the organisation A Search for Justice, but he went on to say that eighteen months ago he had submitted reports to the chief constable of Strathclyde Police and the Crown Office. The reports claimed he had been told by a retired police officer that while on dock duty a constable from Kilmarnock had stated he might be in trouble because he had allowed Shirley McKie into the murder house, but at her request had not logged her in. When the now-retired officer asked him why, the constable had allegedly replied, ‘Because I fancied her.’ Les Brown concluded by stating, ‘I have yet to meet an officer serving or retired who believes Shirley McKie’s account.’

  This was an uncorroborated, hearsay allegation that Shirley had been in the house and therefore must have committed perjury at her trial. Aside from having absolutely nothing to do with the inquiry remit, this gossip was being published under protection of parliamentary privilege. It was also being published by the parliament, in direct contravention of its own rules. Another submission recounted a conversation a person had had with a man in the back of his cab who said that he knew someone who claimed to know about a young cop who had let Shirley into the murder house. No names were given nor any dates or other information.

  Most of the media steered clear of these wild and strange assertions but the Daily Record did run a piece under the headline ‘McKie “Was in Murder House” ’, which contained quotations from Brown’s submission, and in the Scotsman Louise Gray reported that a former colleague of Shirley’s had said that he allowed her into the home of the victim ‘because he fancied her’. Gray phoned Iain for a comment about the quote. His response was short but angry. ‘I am appalled by a government that has gagged the truth . . . but is now party to the publication of unsubstantiated lies.’ The committee was being refused access to key documents by the Executive, including the mysterious 2004 report by John MacLeod, which appeared to have precipitated the idea of a settlement and the critical Mackay report.

  The more Iain read the more he realised that no real attempt had been made to monitor the submissions and avoid the publication of defamatory material. That this material once again sought deliberately to harm Shirley did not appear to occur to the committee members, nor did they think of making any attempt to legally protect those who were being traduced in this way, whereas a full judicial inquiry would have done so.

  Iain wrote to both Pauline McNeill and George Reid about the matter, but neither would take any action, with Reid washing his hands of responsibility for what was a clear abuse of parliamentary privilege, as well as a blatant breach of the parliament’s own guidelines.

  Reservations about the committee was also being raised in other quarters. The distinguished Labour lawyer and life peer Lord Macaulay of Bragar branded Scotland’s first minister, justice minister, and lord advocate as a ‘weary, intransigent trio’ and he dismissed any idea that an inquiry by MSPs would be appropriate saying that ‘such investigation should be carried out within the Scottish legal system’.

  But this barrage seemed, if anything, to make the first minister more intransigent, because, with immaculate timing, just as the committee got underway, a new life peer was announced – none other than Lord Boyd of Duncansby, the title taken by Colin Boyd, the lord advocate, on his elevation.

  Meanwhile Shirley’s story was the subject of a feature report in the Guardian, written by the highly respected investigative journalist Eamonn O’Neill who had published exposés on Lockerbie, the IRA and corruption in UK police forces. His article related the tale to a wider UK and international audience and included some perceptive comments from Michael Mansfield QC, who told O’Neill that the case was ‘hugely important and damaging.’ He was reported as saying, ‘I don’t think the McKie case should ever have been prosecuted in the first place. I know from past experiences in disputed IRA cases, such as the Danny McNamee bombing case, that the whole so-called “science” of fingerprinting needs to be re-examined . . . More quality control is needed. Fingerprint science isn’t infallible.’ That was certainly true, although whether the majority of the parliamentary committee yet believed it, or would be open-minded enough to come to believe it, was uncertain.

  14

  Truth and Lies

  Day 3,394

  The first full evidence session of the parliamentary inquiry was scheduled for Wednesday 26 April. Five days before, Cathy Jamieson revealed the Action Plan for Excellence she had commissioned from the interim chief executive of the Scottish Police Services Authority, David Mulhern. The launch was full of the usual commitments to a ‘world-class’ service, but the real issue for Iain was whether the Action Plan would acknowledge that the SCRO identification of Shirley’s print was wrong. Anything less would, in his opinion, make nonsense of any commitments to restore the reputation of Scottish forensic services.

  The opening sentence of the report stilled his fears.

  The misidentification of a fingerprint as Shirley McKie’s in 1997 has understandably caused considerable public concern ever since about the quality of the work done by fingerprint experts in Scotland – an issue which is central to mainta
ining public confidence in the Scottish criminal justice system.

  The rest of the report laid out a comprehensive series of actions which were needed to achieve that aim. Mulhern had sought international help to produce and implement his 25-point plan. American Danny Greathouse had, over his forty-two years as an expert, been involved in many headline incidents, including the Oklahoma bombings and the Waco siege. Bruce Grant, head of counter-terrorism forensic services with the Metropolitan Police, had been in fingerprinting for nearly forty years and had gained his excellent reputation through involvement in international crimes like the Madrid train bombings, Lockerbie and the IRA attacks in London. Arie Zeelenberg had, in addition to everything else, been chair of the Interpol European Expert Group on fingerprint identification. The inclusion of Arie had come as a surprise to Iain and a shock to the SCRO experts and their supporters who asserted in private that he was in the McKies’ pocket. Mulhern had also called upon the services of Sir David O’Dowd, a retired chief constable of Northamptonshire Police and a former HMCIC in England, whom he had asked to assess progress within the SCRO after the Scottish HMCIC’s 2000 report which had found the organisation ‘not fully efficient and effective’.

  The plan anticipated a critical review of the leadership, culture and training within the Scottish Fingerprint Service and intended to look closely at the way in which fingerprint identifications were verified to ensure a consistent system. These were vital issues which had been pushed to one side during the last few years, when most internal effort went into pretending that all was well and that no errors had been made. Mulhern also announced the establishment of a ‘safe-line’ telephone, where concerns could be voiced confidentially.

  The Executive, however, was not displaying such a desire to achieve openness and accountability. Three days before the inquiry began its work, Eddie Barnes reported in Scotland on Sunday that the Executive were holding expert John MacLeod to a confidentiality agreement he had signed, in order to prevent him speaking about his reports at the inquiry. Barnes noted that MSPs were powerless to insist that MacLeod spoke, but that the committee was considering going to the Court of Session in order to get his report and testimony released.