During the long parliamentary summer recess, coverage of the case rumbled on in the media but there were no major fresh revelations. That gave Iain a chance to reflect on what he had felt since he came back from holiday. By this stage Shirley had completely opted out of things. She had no desire to know what the committee was doing or saying and she made it very clear to Iain and Michael that she did not support the publication of a book. She had been to Australia to spend time with a husband-and-wife filmmaking team who had approached her about a movie of her story, but she was not keen on that possibility either. She was in the process of buying a new house and was trying to put her life back in order. As far as she was concerned, the only way to break free from the events of the past ten years was to turn her back on them forever.
Consequently she was resolutely opposed to a public inquiry, saying that she would not appear before it or cooperate with it in any way. She had trusted the parliamentary inquiry – after being persuaded to do so by Iain and Michael. It turned out to be yet another ordeal that she did not want to repeat. She had let go of her case, and she never wanted it back.
Iain was also very disillusioned with the parliamentary process. Much of the attention was still focusing on the issue of whether or not the print was Shirley’s. It seemed as if there was a majority on the committee who, despite the best efforts of members like Mike Pringle and Bruce McFee and visitors like Alex Neil, had ditched the remit in favour of their own political and personal agendas.
Iain thought of saying all this and formally announcing that he was going to have nothing more to do with this inquiry. But he also realised that although any prospect of a full independent judicial inquiry had receded, it would be better to see if anything at all could be salvaged from the present process before finally drawing a line and moving on. So he said nothing, and instead started to let go, bit by bit – to concentrate on the book and what had happened, rather than on what was happening or what was going to happen.
As the parliamentary recess finished, press attention switched back to the committee. On 4 September, the Scotsman reported that Scotland was joining England in adopting a new non-numeric system of identifying fingerprints that was supposed to allow a more scientific analysis.
On 6 September the committee resumed its deliberations, hearing from Jim Wallace as well as Mr Mulhern and former HMCIC William Taylor. Taylor spoke first and gave a conventional account of his inspection of the SCRO and his report. The only controversial moments came when Macintosh tried to criticise the choice of Arie Zeelenberg as one of the independent experts in 2000, and then when Des McNulty suggested some sinister motive underlying Mr Taylor’s decision to keep the McKie family informed of progress.
Political interests seemed to be very much at play when the next witness, Jim Wallace, the former justice minister, was criticised by Margaret Mitchell and Mary Mulligan for making an early parliamentary statement and apology to Shirley when the results of HMCIC’s inquiry were first known in 2000. Their view that his actions fatally undermined the SCRO seemed perverse given that his action had been the only humane treatment Shirley had received at the hands of system in three years.
Wallace, however, had nothing new to say and he was unable to explain the length of time it had taken him and his successor to move towards a settlement. As a lawyer himself, he seemed to accept such timescales as inevitable.
Mulhern, who appeared with the Scottish Fingerprint Service training officer Joanne Tierney, had more to offer. He clearly laid out his progress report on his action plan, indicating that a much firmer leadership style was now in place at the SCRO and that changes in culture and performance could be expected. Importantly, he stood by his description of the ‘McKie print’ as a ‘misidentification’, at which point several SCRO staff members left the committee room, shaking their heads.
Just how different the SCRO was becoming was indicated in an answer Mulhern gave to a question by Ken Macintosh. Macintosh had suggested that the SCRO needed to get more assertive in the press to counter those who criticised it but Mulhern disagreed, claiming the SCRO should maintain a dignified position and not ‘punch the air’ when they got an identification right, nor deny emphatically any allegations that they had got an identification wrong without first reflecting on the matter. ‘It is not our job to challenge everyone who challenges us,’ he said, ‘we should act in a more professional and dignified way.’ This was change indeed.
The evidence session concluded in some acrimony, with spats between Alex Neil and Bruce McFee on one side and Ken Macintosh on the other. The polarisation that affected the fingerprint world was now also deeply rooted not just in the committee but in the parliament itself.
Around this time a number of journalists told Michael Russell that several senior Labour MSPs were asking them questions about the case. Apparently Macintosh was endeavouring to secure a block of Labour members who would speak out and attack the McKies and those who had worked with them, alleging an SNP conspiracy against his party. The journalists, many of whom had followed and reported the McKie case for years, advised those who came to them that this would be a foolish move, as Shirley was a genuine victim and that, as far as they could see, she and her family had no political axe to grind. Nor did they think that there was an organised SNP campaign – the SNP involvement had arisen for no reason other than Michael Russell’s long association with the case and his unswerving belief in Shirley and her cause.
The final evidence session on 12 September was devoted to the testimony of the lord advocate and the justice minister. From the beginning, it had been seen as essential to conclude with these two witnesses. This was also a rare occasion where the lord advocate was in a position to be quizzed. Consequently the committee room was packed. As had been usual during the inquiry, the SCRO experts were there in force, Fiona McBride appearing to enjoy the limelight and fussily organising the others. Iain sat with Ed Milne from Forfar, a regular attendee of the inquiry sessions who had been fighting his own personal injustice for many years.
Marlyn Glen’s haltingly read opening question addressed the lord advocate’s public statement about the case, which he had made during a lecture to the Howard League for Penal Reform in February 2002. ‘Allegedly, you praised the BBC programme Frontline Scotland by stating, “It helped uncover what were, at best, serious defects in the analysis of fingerprinting at the Scottish Criminal Record Office and forced the authorities, including myself, to act to ensure that such a case would not happen again.” Is that statement correct?’
When the lord advocate acknowledged that it was she continued. ‘My concern is about reacting to the media in a perhaps uncritical way . . . Was any thought given to the difficulty that might result from praising the media in that way, given that the Frontline Scotland documentary might have been one-sided?’
Iain by now was inured to such lines of inquiry, which concentrated on shooting the messenger rather than examining the problem with the message.
Margaret Mitchell was the first to raise the Mackay report issue. However, Lord Boyd would not give an inch on the matter, nor would he accept that there was any conflict in his dual role as law officer and cabinet minister, arguing that a conflict would only arise if he had a personal interest in the outcome, which, he stated, he did not. ‘I can go into the constitutional position of the lord advocate,’ he said, ‘although I am not sure whether you want me to do that. I was always conscious of any possible conflict of interest and avoided it.’ His statement was not challenged.
The convener asked him whether he was confident that the serious defects in the SCRO had been rectified, and of course the lord advocate replied that he was. Once again he was not challenged, although it should have been clear to every member that there was a huge discrepancy between claims of progress in 2001 and what Mulhern had found in 2006. Once more, as throughout the inquiry, important lines of questioning were left hanging and were not pursued.
Yet one or two of the members were much more sys
tematic. Bruce McFee asked the lord advocate about the current status of the Marion Ross inquiry and this brought about a fascinating exchange. First of all, Lord Boyd admitted, ‘Officially, the murder is unsolved. The matter is really for the police to deal with, but as far as I know, they do not have any new lines of inquiry and are not pursuing any new lines. Obviously, if there is a new line of inquiry, they will pursue it.’
‘So who murdered Marion Ross?’ asked McFee.
‘I cannot answer that, of course.’
‘You do not have to answer that question,’ the convener added.
‘The one person who has been forgotten in what has happened is Marion Ross,’ continued McFee. ‘That is an important point. Nobody has been convicted of her murder and it appears that there has been no ongoing investigation for some time to try to determine who murdered her. Will you confirm whether that is the case?’
‘As I said,’ replied the lord advocate, ‘whether the police will re-open an investigation is primarily a matter for them. I do not know of further matters that have been brought to their attention which would give rise to the investigation being re-opened, although I should say that if new information or evidence comes to the Crown Office, we might decide to instruct them to carry out an investigation.’
Aside from Pauline McNeill’s puzzling interruption, it was remarkable that neither the lord advocate nor one of his aides was able to further clarify the current state of the murder inquiry. Even more remarkable was his assertion that re-opening the investigation was a matter for the police, and not himself. Here was the head of Scotland’s prosecution service, a man who prided his power and independence, stating that whether or not this murder case – which had, in his own words, become ‘notorious’ – was re-opened was not a matter for him. If not for him, then for whom? Was he not aware of a whole series of allegations about the murder which were current in the press? Surely as a public servant he should have made sure that these were looked at?
Could it be that the police still thought Asbury was guilty and that they were making that point by doing nothing, and so leaving the real murderer at large? And was Lord Boyd complicit in that matter? Did he too really suspect that Asbury should have still been in jail, despite the clear evidence that he was innocent and the suspicions that he might have been framed?
Further missed opportunities for questions of this kind arose. Then the convener asked about the SCRO experts, who had not given evidence since the trial. ‘Will you confirm that the Crown does not intend to call them as expert witnesses in future?’ The lord advocate reported that the matter was under discussion, but that there were ‘considerable difficulties in that respect’ which had not been helped by the ‘unauthorised disclosure of Mr Mackay’s report’. He stated that he had ‘enormous sympathy’ with the four SCRO officers. ‘However,’ he continued, ‘my job is to ensure that criminal trials are properly conducted and that people have confidence in our criminal justice system. I have a concern that must be addressed. The position of the officers is now so notorious – I do not mean that in a pejorative sense, but the views that have been taken on them are well known – that if any of them were called as a witness, the trial concerned might well become a trial of the officer, rather than of the accused. I want to avoid that.’
Quite apart from having ‘enormous sympathy’ for the SCRO experts who had for ten years adamantly refused to admit two mistakes, one of which pushed Shirley close to suicide and the other of which resulted in David Asbury being sent to prison, the lord advocate also seemed not to acknowledge the overwhelming evidence of their culpability presented in various reports over the years. Equally interesting was his condemnation of the publication of the Mackay report. Once again, his concern did not arise from the allegations made against the SCRO in the report, but merely from the fact that the report had been leaked.
Des McNulty asked a question about the decision to prosecute Shirley and whether that decision would be made again today, given the same evidence. Lord Boyd thought not, but in a supplementary from Bruce McFee he made an assertion that was strange and very irregular. The exchange went like this:
McFee: I want to get to the nub of this. Is it your opinion that the perjury case against Shirley McKie stood or fell on the basis of the fingerprint evidence that was presented?
Lord Boyd: As it turned out for the jury, that is right. I do not want to go into this, because the matter did not come out in the trial, but it is fair to say that the advocate depute believed that there was other evidence that was supportive. It is not the aspect to which Mr McNulty referred, but another piece of evidence. The evidence did not come out as was expected.
Convener: You said that it ‘did not come out’. Is there a legal aspect to that? Did the advocate depute attempt to get the evidence in, but the judge would not allow it?
Lord Boyd: I think it is fair to say that the evidence that was given was not in accordance with what the advocate depute’s understanding of it was.
So the chief of the prosecution service was arguing that there was evidence that might have convicted Shirley, but that didn’t come to court and could not now be spoken of. So much for Shirley being cleared by a jury and by every subsequent inquiry – to Iain, the lord advocate seemed to be implying that she was guilty, but that he couldn’t prove it. And because this was not a legal, but only a parliamentary inquiry, Shirley had no lawyer there to protect her against such a smear. Further insinuations of this kind were to come.
The next exchange between Alex Neil and the lord advocate was direct and to the point. ‘Is not your credibility as a public prosecutor at stake?’ asked Neil. ‘You took the decision to prosecute Shirley McKie. In answer to Bruce McFee’s earlier question, you said that the jury’s decision hung on the fingerprint issue. However, as Lord Johnston’s charge to the jury makes clear, that is not the case at all. Three separate reasons were given – Lord Johnston described them as ‘‘hurdles’’: one was the issue of the fingerprint, the second was the forensic question, which could have been checked beforehand, of when the fingerprint was taken – the timing of the black powder or aluminium powder – and the third was the testimony of every single police officer who guarded the house at the scene of the murder, every one of whom went on oath to say that there was no way that Shirley McKie could have been in the house.
‘In addition to the issue of the fingerprint, surely,’ asked Neil, ‘you interviewed all those officers, checked the issue of the black powder and the aluminium powder and ascertained that it was physically impossible for the print to belong to Shirley McKie? You said that it had not, when you took the decision to prosecute, become clear that there was a dispute over the fingerprint. Once that became clear, surely you should have revised your decision to continue with the case.’
The lord advocate replied that he had exercised independent judgment on whether there was sufficient evidence to prosecute, and based on the evidence at that time, the decision had been the correct one. He went on to say, ‘The case went before a jury; it was a jury decision. When the evidence from Mr Wertheim and Mr Grieve came in, the advocate depute saw the SCRO officers and formed a view as to their professionalism, credibility and reliability. He also formed a view on the basis of the information that he had about Mr Wertheim and took the right decision to continue with the case.’
Another insinuation had just surfaced, namely that Pat Wertheim and David Grieve, who were highly regarded in their profession internationally, were not as credible or reliable as the SCRO experts. Furthermore, in saying this, it was clear the lord advocate saw the matter of confidentiality about decision-making as something which could be relaxed when it suited him to do so, and particularly when he was under pressure.
Alex Neil continued trying to get an answer to his question of whether or not the Crown Office had checked and interviewed the police officers on guard duty at the house. ‘Did they confirm that Shirley McKie was at no point in the house?’ Lord Boyd seemed unwilling to answer this –
‘I cannot recall what evidence was available and what was not’ – and instead referred to the fact that five unlogged officers went into the house, the implication being, as Iain saw it, that if this was the case, Shirley also could have entered the house. But in fact, as had been revealed at Shirley’s trial, those crime squad officers who did enter the house without being logged were seen by a number of people. No one ever testified to seeing Shirley there.
After seventy-five minutes the session was finished. The lord advocate had contributed little but he had attempted to cast doubts on Shirley’s truthfulness and her acquittal. That fact was picked up in an article published in the Scotsman the following month written by Lord McCluskey, the former solicitor general, in which he observed that Lord Boyd had ‘astonishingly told the Justice 1 committee there was ‘‘other evidence supportive’’ of the Crown’s perjury case against McKie, but ‘‘the evidence did not come out as expected’’. He did not disclose what it was. Was he suggesting, despite her acquittal and success in the civil action, she was guilty after all?’
The Price of Innocence Page 24
