The Price of Innocence

by Michael Russell

  McBride made, in this answer, a remarkable admission that the committee were not slow to grasp. She had confessed that she wrote the initials of experts Charles Stewart and Hugh Macpherson on the back of the photograph, confirming their identification, along with the date of examination – 11 February 1997.

  Bruce McFee was clearly less than satisfied with this explanation. ‘It seems strange for somebody to put somebody else’s initials on an important piece of evidence that ultimately resulted in a perjury trial,’ he said. ‘Was it normal practice for people to sign for other individuals?’

  According to McBride, this was not standard practice, just something she had noticed another expert doing, and which seemed to be a good idea. In fact, she told the committee, she was glad she had initialled it. ‘Mr Robertson’s timeline does not mention when Charles Stewart checked the mark and it has me checking the mark on a separate day from Hugh Macpherson,’ she said. ‘Thankfully, I put the initials on the back, so I know when I saw it and that I saw it after Charles Stewart and prior to Tony McKenna. So, thank goodness for that information being here today.’

  But why did the experts not sign the photograph themselves at the time they identified it? When and why did Ms McBride see fit to add their initials? Was it at the time of her identification, or could it have been later, in reponse to the police inquiry timeline? Were Charles Stewart’s initials on the photograph or were they added later? When the timing of the identifications and confirmations by other SCRO experts is so critical, these revelations throw the experts’ testimony into even more doubt, and they open the door to some even more sinister explanations.

  What if someone knew, as we now suspect, that the Marion Ross print, identified some eleven days before and the major clinching evidence against ‘killer’ David Asbury had been fabricated? Then came along the possibility of a very public challenge from a policewoman to a fingerprint identification in the same case. If that mistake is admitted, might it cause the fiscal or the Crown Office to order a precautionary re-examination of all the prints? Might the ‘fabrication’ be discovered? A great deal was suddenly at stake.

  That is, of course, not to say that Mr Macpherson or any of the other experts were guilty of anything but the inconsistencies and strange assertions that came out of their evidence. But those inconsistencies and strange assertions intrigued Iain and Michael, not least because the inquiry failed to notice those things, let alone probe and resolve them. A judicial inquiry with witnesses under oath would have done so, but a parliamentary inquiry was obviously not the place where such progress could be made.

  But progress was being made outside the parliament. In June 2006, Independent Counselling and Advisory Services (ICAS), one of the world’s leading providers of employee support and behavioural risk management, reported on its examination of personnel and other issues within the Scottish Fingerprint Service. Their findings revealed the true position within the SCRO and were an indictment of the management, the police, HMCICs and the politicians who had been saying for years that everything was once again ‘efficient and effective’. ‘Feelings in the Glasgow bureau were running very high,’ reported ICAS. ‘There were signs of low morale and a resigned and even desperate air in some individuals. Others were resentful with barely suppressed feelings of anger . . . there was a strong degree of cynicism as to whether this would lead to any substantial improvement for them . . . A considerable number are clearly feeling very stressed . . . Some individuals are only just managing the increased workload for now but feel that they may not be able to continue for much longer. Relationships at work are strained, individuals are behaving out of character, and there is some unacceptable behaviour, especially examples of aggressive behaviour from some managers/supervisors.’

  Mulhern’s action plan had also recognised these severe problems and was committed to tackling them. While these revelations were undoubtedly positive for the future of the Scottish Fingerprint Service, they seriously called into question the findings of successive HMCIC reports from 2000.

  For example, in May 2001, only months after one of the most critical reports ever published into a fingerprint bureau, HMCIC revisited and miraculously concluded that all was well. Subsequent inspections, up to and including that published by the new HMCIC, Andrew Brown, in March 2005, reported steady progress within the SCRO as the changes were implemented.

  It should be remembered that Mr Brown, when he had been chief constable of Grampian Police and chair of the SCRO Executive Committee, had often acted as the main apologist for the SCRO. Time after time, he had expressed his satisfaction at their functioning and had exhibited an indecent haste to move on from the torrent of criticism that followed his predecessor’s inspection in 2000.

  Not surprisingly, when it fell to him to report, he presented a glowing picture of progress at the SCRO and within the Scottish Fingerprint Service. While things remained to be done, the problems of the past were well behind them, he claimed. The challenges he saw were mainly concerned with structure and finance and he commented favourably on absence management and other personnel initiatives. Highly significantly he said that ‘all of the recommendations and suggestions which remained outstanding from [the inspection of 2000] have been examined and can be discharged’.

  Of course they hadn’t been, as both Mulhern and then ICAS had found. Only now was there the beginning of real and necessary change, and the price was still being paid by the SCRO staff as well as by the Scottish justice system.

  Iain was getting weary of all this subterfuge and evasion. He remained heartened, however, by the ongoing support that came from so many places, sometimes completely unexpectedly, as in the case of Scottish folk singer Michael Marra who, having had his own fingerprints taken on his way into America for Tartan Day, wrote and recorded a song about and dedicated to Shirley. Soon the song was being played regularly on the radio and Marra promised that all proceeds from it would go to a fighting fund for a judicial inquiry which Iain had set up some time ago and which was being administered by Bill McFarlan.

  15

  Letting Go

  Day 3,465

  In mid June Iain and Mairi went to Italy for a fortnight’s holiday given to them by Shirley in thanks for all they had done. For the first time in almost ten years Iain did not take a mobile phone away with him, nor did he seek to hear Scottish news or find out how the campaign or the inquiry were going. He ate, slept, walked and enjoyed Mairi’s company in a superb hotel by Lake Garda, returning refreshed but thoughtful. Increasingly, he was of a mind to start letting go, to disengage from a case which had dominated his life for a decade.

  Part of that process was already underway, for, with Michael Russell, he had begun to talk about writing a book, believing that he must outline his experience in order to aid other campaigners. He also wanted to put on record what he thought the facts of the case actually were, particularly as those facts kept getting distorted by the political process.

  But the inquiry hearing of 7 June, before Iain went to Italy, had also contributed strongly to his disquiet about where the debate was going and where it might end up. The committee was to hear presentations from both Arie Zeelenberg and Peter Swann, and then allow panels supporting each expert to be questioned, although in the end it overran so badly that the pro-Swann panel had to be recalled for a later date.

  Iain had opposed such a session vigorously. It seemed to him to be defective for three strong reasons. Firstly, it elevated Swann’s discredited views to the same level as Zeelenberg’s, which were supported by numerous inquiries and reports and by hundreds of experts across the world.

  Secondly, it was inevitable that the inquiry members were going to be drawn into an expert versus expert debate, for which the remit did not allow and on which they were not qualified to adjudicate. The convener Pauline McNeill was about to preside over a debate she had earlier expressly warned against, and this created even more suspicions that political agendas were now in play.

  Thirdly,
Shirley’s innocence had been established in 1999. The court’s verdict had been justified by every independent report since then. Now, by allowing Swann and the SCRO to claim they were correct after all, this unqualified inquiry was about to open up the whole matter again.

  Another issue concerned Iain greatly and that was the fiction being perpetuated by the inquiry that there had only been one mistake made by the SCRO experts. As everyone knew, they had also botched the Marion Ross print, and yet this was not even being discussed. The fact they had ruled the second mistake as sub judice and unable to be considered made the whole exercise surreal and might invalidate any conclusions the inquiry reached,

  Zeelenberg’s presentation was highly technical and it was obvious that some members had difficulty grasping the considerable detail within it. But that did not matter to MSPs Macintosh and, in particular, McNulty, who in questioning sought only to discredit the fingerprint service in the Netherlands and imply that there was something wrong with the decision to bring in ‘foreign’ advice. Margaret Mitchell alleged that Zeelenberg was a McKie supporter and therefore lacked objectivity. Afterwards, Zeelenberg was of course furious with the way he had been treated. A strong admirer of Scotland, he privately regarded the Scottish political process, as he witnessed it, as immature and dangerously partisan. It seemed to have difficulty valuing truth and striving to get it.

  In contrast, Swann was listened to politely, and although subject to vigorous cross-examination was not deliberately insulted. His presentation, which with its use of marked-up boards was in sharp contrast to the technical wizardry of Zeelenberg (not least because Swann kept getting the boards upside down or in the wrong order), stressed his belief that the mark was Shirley’s and poured scorn on any other view, especially that of Pat Wertheim. Yet he had difficulty explaining some of the obvious discrepancies between Shirley’s print and the mark on the door frame, and his claim that these differences could be accounted for by a moving of the impression did not seem to make much sense even to the supportive members of the committee.

  He was also fatally undermined early on in his presentation when he admitted that the fingerprint he was using for comparison had been taken from a photograph on the front page of the Daily Mail. Later he was forced to admit that he had not taken any prints of Shirley himself before he examined the fingerprint evidence, relying on those provided by the SCRO. On returning to his seat, he dropped all his boards once more, and Fiona McBride had to leap forward to rescue them and him from the chaos. It was all slightly sad and pathetic and Iain wondered why this once-respected expert was allowing his reputation to be so damaged in his twilight years.

  The questioning of some of the other experts called to give evidence did, however, throw more light on the issues contained in the remit. Pat Wertheim, who had flown in from the States, and Allan Bayle from London were joined by John McGregor from the Aberdeen bureau, Ken Clacher from the Dundee bureau and Jim Aitken from the Edinburgh one. All of them were sure that the print was not Shirley’s, but significantly the Dundee bureau had not taken part in the dispute before. It was made very clear that the overwhelming majority of Scottish Fingerprint Service staff outside Glasgow regarded their colleagues’ identification as mistaken and were fed up with the constant defence put up by SCRO management – also based in Glasgow – which they believed was damaging them and the work that they did.

  As Iain and Michael had feared, these sessions were becoming conflicts of experts’ opinions, with confusion rather than clarity as a result. In addition, precious inquiry time had been wasted in debating matters totally irrelevant to the inquiry remit. What was clear, however, was that the inquiry had given the SCRO experts and their supporters an important platform for their discredited opinions.

  Afterwards, many of the visiting experts felt that they had been brought before the inquiry under false pretences and had been opened to ill-informed abuse by MSPs like Macintosh and McNulty, with little protection from the inquiry chair. The general feeling, certainly among the outside experts like Pat Wertheim, Arie Zeelenberg and Allan Bayle, was that they would think twice before offering assistance in the future.

  The session was by now considerably running over time, and after hurried consultation it was agreed to reconvene at a later date.

  The Mackay report was still not officially available, and the lord advocate and the Executive was steadfastly refusing to let it be seen. However, a leaked copy of the full summary had already been extensively quoted from in the media, and the BBC and others had made copies available on the internet. Strangely, the inquiry members, although making noises about legal action (which never materialised despite prominent backing within parliament for such a step), appeared happy to continue the fiction that they could not access it.

  At the meeting held on 20 June, the committee heard from Doris Littlejohn and James Black about the internal disciplinary inquiry that had ‘cleared’ the SCRO four and that evidence has already been dealt with earlier in the book. The main focus, however, was on James Mackay and Scott Robertson, who gave evidence alongside the Strathclyde chief constable, Willie Rae, formerly head of ACPOS. Rae focused on the history of the case, and in particular the Mackay inquiry, but Mackay himself, in an opening statement made also on behalf of Scott Robertson, laid out his difficulty in helping the committee, given the legal constraints to preserve the confidentiality of the unpublished Mackay report.

  In the discussion that followed, however, both witnesses made it crystal-clear that they stood by every word in their report. Mike Pringle asked James Mackay, ‘Would you say that your inquiry was as robust and detailed as it could have been and would you still stand by it?’

  ‘I stand by the inquiry,’ Mackay replied. ‘We felt that we were objective throughout. We conducted a comprehensive review . . . To give a brief answer to your question, our inquiry was comprehensive and full and I felt that, throughout it, the officers whom we used were experienced and remained objective.’

  Scott Robertson added his agreement. ‘It was an extremely thorough investigation and highly experienced officers were involved in conducting it. I stand by the investigation.’

  As everyone in the room who had read the condemnation and accusations of criminality contained in the leaked summary was well aware, although they had been prevented by the lord advocate from saying anything about the report, they had in fact said everything.

  An extra witness session took place on 26 June, and began with evidence from John MacLeod, whose report – long withheld by the Executive – had finally now been released to the committee and was therefore in the public domain. Once more, the focus of the session centred on the minutiae of Shirley’s print – just the subject the committee kept saying it wanted to avoid. John MacLeod was subject to a long cross-examination involving every member of the committee and the additional MSPs who were present, but he stuck firmly to his view that the print was not Shirley’s and that there was negligence shown by those who identified it as such. A crucial line of questioning came from Mike Pringle, who sought, and received, confirmation from John MacLeod that the Executive had asked him to do another report subsequent to his initial July 2004 one. This second report was presented to the Executive in October 2005, and was more detailed than the initial report – in fact, whereas the first report showed four discrepancies, the second showed fifteen differences between the Y7 print and Shirley’s thumbprint.

  Mike Pringle then asked John MacLeod, ‘You presented your second report in October 2005. Do you think that that is why the Scottish Executive decided to settle?’

  ‘It looks very like it.’

  ‘Is that your opinion?’

  ‘Yes.’

  ‘As a result of your second report, the Executive thought that a mistake had been made and it was not going to win in court, so it should settle with Shirley McKie.’

  ‘I think so.’

  Mike Thomson, the head of the National Fingerprint Training Centre in Durham, then gave evidence. His ce
ntre had looked at the mark in 2000 and had concluded it was not Shirley’s. He maintained this view throughout questions from the committee, despite some implications that he was too closely associated with ‘McKie-supporting’ experts to be truly impartial. He also gave the committee some valuable insights into training and processes.

  In the afternoon the second round table assembled. Mr Swann first of all delivered a critique of Arie Zeelenberg’s presentation, which rapidly became a question session as first Stewart Stevenson and then the convener pressed him on details of his analysis. Swann also had to defend himself against allegations that he had misled the committee with regard to two statements he had made in his first appearance – one which claimed that a New Zealand expert had been wrongly added to the list of world experts who had written to the justice minister, and another in which he had incorrectly asserted that no expert had ever disagreed with his presentation on the McKie case. Individuals who had read Mr Swann’s evidence had emailed members of the committee contradicting both those comments.

  Then he was joined at the committee table by Alistair Geddes, Alan Dunbar, Robert Mackenzie and Terry Foley from the Glasgow bureau of the SCRO, as well as by retired fingerprint technician John Berry and former fingerprint expert Malcolm Graham.

  Berry had retired in 1991 and was now eighty, but he still published a magazine devoted to fingerprinting. He described himself as a ‘bystander’. Graham, on the other hand, had supported the identification when it was first made, but had subsequently apologised twice to Iain for his actions, making it clear that he had been wrong and had even written to the Herald confirming that view. Now for some reason he had swung back towards backing the SCRO position but his vacillation had robbed him of all credibility. Mackenzie and Dunbar had been closely associated with the four experts who had made the misidentification and had been added to Shirley’s legal action as defendants after Lord Wheatley’s judgment. Mackenzie was deputy head of the Glasgow bureau while Dunbar now worked as quality-control officer and it was he who had the last word after a gruelling six-hour committee session. He attacked Shirley and all those who had supported her, as well as all the official bodies which had been involved, concluding, ‘The only thing that the SCRO officers are guilty of is telling the truth.’ It seemed that even nine and a half years after the murder, six years after Shirley’s acquittal, and almost five months after the settlement the key players within the SCRO were still no closer to accepting their mistake, honest or otherwise.