On the same day, Liam McDougall of the Sunday Herald also had a McKie-case scoop. He had obtained a copy of a second report to the lord advocate from the three Grampian experts. Despite the threat of disciplinary action hanging over them, they concluded that the SCRO had made a second mistake in identifying Marion Ross’s fingerprint on a tin found in David Asbury’s home. Although this report only confirmed expert opinion first voiced in 2000, it came at a time when the Scottish Executive and the Crown Office had ruled all discussion of the Asbury case sub judice and were working hard to give the impression that the McKie misidentification was the only mistake. As usual, the SCRO and Scottish Executive refused to comment.
The parliamentary inquiry took its first oral evidence three days later. Although at the outset it was hoped that the work could be completed by the end of June and the report published in the early autumn, in fact the committee was to hold eight oral evidence sessions in all between 26 April and 12 September, with twenty-eight and a half hours of oral testimony given by forty-eight witnesses – an average of thirty-six minutes per witness. The written report would not appear until 15 February 2007.
This was one of the largest inquires that any Scottish parliament committee had devoted to a single topic. The committee’s external advisor, Professor Jim Fraser from the Centre for Forensic Science at Strathclyde University, although not a fingerprint expert, was crucial in helping to guide the committee through complex issues. Because of the legal minefield that existed, the committee’s members were supplemented by a number of lawyers working in the parliament.
Yet with all this help, and despite being warned by their own convener at the outset not to get mired in the consideration of fingerprinting details (about which they possessed little knowledge and still less skill) the committee soon found itself floundering.
The first oral session was devoted to three sets of testimony – from the independent experts advising Mulhern, from the management of the SCRO (present and past, including Mulhern himself) and from the leaders of the Association of Chief Police Officers in Scotland.
The international experts were impressive. Danny Greathouse, Bruce Grant and Arie Zeelenberg all made important contributions to the committee. Arie Zeelenberg, who was scheduled to present his detailed findings later in the inquiry, explained how the mistake might have happened and addressed the issue of culture that he believed was a major cause of the SCRO denials. Bruce Grant was perfectly clear on the problems Shirley’s case posed for his profession – ‘In my thirty-seven years’ experience, I have never known a case involving two such polarised opinions. It is disturbing.’ But Grant, like the others, was honest about the need to resolve the matter, saying that he did not want this case to affect terrorism cases of his which were going through the courts.
Just as the session was ending MSP Alex Neil, who was present as an observer, although not a member of the committee, asked Arie Zeelenberg to confirm that he had stated that one of the SCRO presentations he had attended ‘had an element of criminality about it’.
‘I did not use the word criminality,’ Zeelenberg replied. ‘You ask whether it started as an honest mistake. Yes, definitely. Somebody made an error . . . The print was heavily disputed, and the SCRO should have revisited it. There are signs that that happened and that people’s conflicting opinions were suppressed . . . I do not know where and when the investigation became malicious, but I would say that, at a certain moment in time, the SCRO knew that it was not Shirley McKie’s print.’
The testimony of the present and past management of the SCRO provided an interesting insight into the culture of arrogance and complacency that been allowed to prevail in the organisation. John McLean, soon to retire as director of the SCRO and Euan Innes, head of the Scottish Fingerprint Service, faced a torrid opening from Bruce McFee and Alex Neil who challenged their claim that there had been vast improvements in the fingerprint service, pointing out that this was hardly likely when the very experts who had refused to admit their mistakes over nine long years were still working within the organisation.
Bruce McFee also pressed particularly hard about the letter sent to Lord Cullen at the Court of Session in November 2005, which was signed by over fifty SCRO personnel and circulated to their parliamentary colleagues by MSPs Ken Macintosh and Des McNulty. It seemed to him that the letter showed that there was no acceptance of the need to change among the majority of the SCRO staff. Tellingly, there was no regret or criticism from Innes or McLean at the letter being sent – only the excuse that legal advice had ruled out disciplinary action against the signatories. John McLean admitted that whilst this ‘collective revolt’ had resulted in no follow-up he had however instigated a disciplinary investigation against two members of the Fingerprint Service for speaking to the media – one being a whistle-blower from Grampian and the other an expert from the SCRO.
McFee tried to push further, expressing incredulity that the letter had not even merited a formal investigation. But then – for the first time in the inquiry, but not the last – Pauline McNeill stepped in as convener to save the witness from answering something embarrassing. ‘You have heard the answer to your question and can take a view on that,’ she snapped. ‘A process is under way against two officers and no disciplinary action is being taken against the fifty people who signed the letter. That is the position.’
However, Liberal Democrat MSP Mike Pringle later returned to the subject of letters being circulated, citing the letter to the lord advocate from David Russell on 28 April 2005 which was given to Mr Innes and circulated amongst staff. ‘Was that intended to motivate the staff?’ Pringle asked. ‘Reading the letter, it seems to me that it would do exactly the opposite.’ This letter of course had alleged that there was some form of conspiracy between Shirley, Iain, the Crown Office, the minister for justice, the media and various other organisations, and had crudely criticised everyone opposing the SCRO.
Innes’s reply was remarkable, saying the letter was a public document, that it was circulated freely and made available on the internet. ‘I gave it to the staff in each of the four bureaus because it contained the fact that other independent experts had been employed who agreed with the identification of the mark . . . During that time we tried to make all information available to all the staff.’
The reply was factually wrong. Innes had actually circulated the letter on or around 10 May, about ten days after the lord advocate had received it and twelve days before a copy of the letter was sent to Iain. Only then was it posted on the internet.
The next session of oral evidence, scheduled for 23 May, was to include testimony from Shirley herself, but during the weeks preceding it she became more and more reluctant. Why, she asked Iain and Michael, should she put herself through another trial presided over by politicians, particularly one that was not established according to the normal rules of justice, where the witnesses were not on oath?
In the meantime Iain had written to the convener reiterating his concerns about the material which the committee had seen fit to publish. He also sought an assurance that the remit would be adhered to and that the committee would not attempt to re-examine the whole issue of whether it was a misidentification or not. He finished the letter by indicating that he hoped that he and Shirley would not be put on trial when they appeared and that he would like all witnesses, including himself and Shirley, to be put on oath. In an exchange of correspondence that followed, the convener flatly refused to consider a further review of the offending material or to give any assurances about the way the inquiry would be conducted.
Two days before Shirley’s scheduled appearance, a new BBC Panorama documentary called ‘Fingerprints in the Dock’ was broadcast. It brought together new information, along with that already shown in the previous three Frontline Scotland and two Panorama programmes. In it Shelley Jofre presented another damning analysis of the SCRO findings.
Pat Wertheim was shown, explaining that the case had worldwide implications. ‘You cannot und
erestimate the amount of damage done to the science of fingerprints in the world today. It’s been published in articles critical to fingerprint science as a reason that you cannot trust fingerprint identification.’
For the first time David Asbury took centre-stage, describing his shock on being convicted of murdering Marion Ross. ‘It was terrible . . . I nearly fainted. I was in total shock. I couldn’t believe it. I thought I was gonna get found not guilty. Shocked, stunned, I don’t know how to describe it.’
Shirley described her feelings as the SCRO experts gave their evidence. ‘They were arrogant, and they stood there and said to a jury and to a judge, “Well, I know you can’t see the points of identification, but I’m an expert, and you just have to believe me.” It was an utter joke. And I just couldn’t believe that after all this time, that was their evidence – “I’m an expert, you just have to believe me.” ’
Once again the SCRO experts had refused to be interviewed on television to demonstrate how they had reached their ‘identification’ of Shirley’s print. Instead, Unison official Kath Ryall appeared in their defence stating, ‘If they demonstrated how they came to their findings to yourself on a television programme, it wouldn’t make any sense to you.’
Despite this put-down, minutes later Pat Wertheim showed the viewers just how easy it was to demonstrate that it was not Shirley’s print and then, one by one, the four English experts Jofre had consulted for the very first Frontline Scotland programme confirmed this finding. Reconstructing some of the conclusions of the Mackay report for the first time on television, Shelley Jofre also showed just how unscientific SCRO procedures had been.
David Asbury was allowed the last word. With the camera homing in on his face, Jofre challenged him. ‘Did you have any involvement with the Marion Ross murder at all?’ Without flinching, he looked her straight in the eye and said, ‘No, no.’ Shelley Jofre ended the programme by reminding the UK-wide audience that the killer of Marion Ross had still not been brought to justice.
On the morning of 23 May, flanked by Iain, her brother Stuart, Mairi and Andrew Smith QC, Shirley negotiated the familiar scrum of TV cameras, photographers and reporters and entered a packed Holyrood committee room.
Pauline McNeill first outlined the rules under which the inquiry was being conducted, then she welcomed Shirley, Iain and Andrew Smith who were already sitting at the end of the committee table and asked the first question: ‘Shirley McKie, as you are the person who is really at the heart of the whole matter; what would you like to say to the committee about your experience? What lessons do you believe can be learned about our fingerprint service in Scotland and the processes that we use?’
Shirley responded with a brief thanks to the committee and then said that, to be honest, she would rather be anywhere on earth than in that committee room. But, she explained, she was there ‘in a last-ditch attempt to ensure that the people responsible for what has happened are dealt with’. ‘I can tell the committee how it has affected me emotionally,’ she said, ‘but a lot of information has been kept from me to protect me so that I can go through this whole process. There may be questions that my father or Andrew Smith QC will have to answer. Your question is huge and I do not know where to start.’
After another brief question from the convener she continued. ‘In my heart of hearts, I honestly believe that there was a mistake initially, rather than some sort of conspiracy . . . I believe that there was a mistake because people were under pressure, as they are during any murder inquiry when a lot of evidence is taken. Perhaps a mistake was made in the hurry to identify a random fingerprint. I questioned that on day one and said that I was not in the house, so there must have been a mistake . . . The case was based on fingerprint evidence and if that mistake was not sorted out, the whole case would fall. You will have to ask the people at the SCRO why they did not go back and check or admit the mistake at that point.’
After a couple of questions from Bruce McFee, Conservative MSP Margaret Mitchell, whose party previously had been supportive of Shirley, for the first time displayed an inexplicable antagonism that was to continue for the rest of the inquiry. She also made an inaccurate and damaging statement about Shirley, presenting it as fact: ‘We have written evidence on this, with one constable alleging that he had logged you in.’
Of course there was no such ‘evidence’, only the second-hand gossip and innuendo published by the committee. Shirley’s voice shook with anger. ‘Thanks to my father, I have been protected from a lot of the malicious, nasty and filthy gossip which is included on the parliament’s website and which was one reason why I felt that I could not appear here today. After all this time, after what I have been through, and after all the reports and inquiries, quite frankly I cannot believe that these liars and disgusting people are even being entertained. I have put my neck on the line so many times, hoping for Scotland that this would be sorted out. I hoped that people such as yourselves who could do something about it would do so. Instead of that, I am harassed and disgusting rumours are spread. Obviously, I cannot stop that, but it distresses me so much that you would not believe it.’
Far from drawing back, Mitchell referred obliquely to a ‘previous incident’ that Iain realised was alluding to Shirley’s prints made through rubber gloves when working on an earlier case – the incident that had been thrown out by Lord Johnston at her trial. Of all the inquiry members, Iain found Margaret Mitchell’s patronising innuendo the hardest to take. She appeared to be determined to bring Shirley down, but she seemed to lack the basic integrity to come right out and say what she meant. It was only later that it was suggested to him that Mitchell had been briefed by senior police officers, and while Iain was never able to confirm this, it did make sense of her behaviour.
As the questioning turned to Peter Swann, Iain took the opportunity to express his reservations about Swann being invited to give a presentation to the committee, saying that he could not understand why the four SCRO experts were not being called to give the presentation. The convener rose to this criticism with a rebuke. ‘I should clarify,’ she said, ‘that how the committee decides to take evidence is a matter for us [to decide].’
Matters eventually moved on to disagreement about the identification of Shirley’s fingerprint and when Bruce McFee asked whether it all ‘comes down to a difference of opinion’, Iain responded, ‘I ask you to work out the statistical probability of four people in a row independently getting it wrong . . . I have in front of me, and would be happy to read out, every single report that says that the identification is wrong. It is not a matter of opinion; it is a matter of fact that the SCRO has got it wrong.’
Mike Pringle intervened, asking, ‘Is it possible that two people could look at one fingerprint and come up with a different answer?’ Iain responded that of course this could happen, but ‘if they are experts and they follow the procedures that are laid down, that should not happen. You cannot have two opinions on a fingerprint; otherwise, we might as well throw fingerprinting out the window . . . If two experts say different things, one of them must be wrong. Over the years, we have proven time and again that the SCRO is wrong. That must be the starting point.’
Once all the committee had had a chance to participate, the convener called the three MSPs who were attending but who were not formally members of the committee – the two Labour champions of the SCRO experts, Ken Macintosh and Des McNulty and Shirley’s supporter, Alex Neil.
McNulty, one of whose constituents was the SCRO expert Fiona McBride, was the first to speak. Blatantly ignoring the inquiry remit and Pauline McNeill’s promise that Shirley was not on trial, he pursued allegations that Shirley had concealed the presence of Peter Swann in her trial testimony with Andrew Smith, and criticised the fact that Malcolm Graham’s identification of the prints was not made available to the court. In fact, both Swann and Graham were known to the court, but before Andrew Smith could fully explain this, Shirley suddenly interjected. ‘Excuse me,’ she said. ‘Are you putting m
e on trial again? Are you actually questioning my integrity? I am here to assist the inquiry. I do not see the relevance of your questions and I am totally insulted by them.’ The convener quickly jumped in to try to pacify her but Shirley was determined to have her say. ‘Mr Swann was not used by the defence because he was wrong and incompetent, and I was unhappy about his being there. I answered every single question in my trial honestly, unlike some people.’
Despite this, McNulty was not going to give up. Harking back to Shirley’s trial he began to quote from her testimony verbatim, making the clear allegation that Shirley had lied at her trial. Neither Iain nor Shirley could believe that this was being allowed. The inquiry remit was being ditched without a word of rebuke from Pauline McNeill. Eventually she did intervene saying that she was not going to allow ‘any further questions on that point’.
That precipitated another angry exchange before the convener called for order and allowed Iain to address Mr McNulty. ‘If the evidence is read,’ Iain said, looking him straight in the eye, ‘you will understand, as our QC and everyone else understands, that my daughter did not lie at that trial. Further, the idea has been expressed that Peter Swann was hidden. Peter Swann was never hidden. Peter Swann was known to the prosecution at the trial in May 1999. In July 1999 I wrote a report to the Mackay inquiry, two pages of which were devoted to Mr Swann. That included his statements. Mr Swann was interviewed for HMCIC’s inquiry and he was interviewed for the Mackay inquiry. Mr Swann has been interviewed and re-interviewed, but he has never been used as a witness by anyone. Despite the multiple complaints that he has made to everyone, they have never been taken up.’
The Price of Innocence Page 21
