He was of course, thought Iain, doing just that, in the hope of persuading the committee that he might have been right all along and that they could take a lead from that in their report, if they wished.
After Boyd came the final witness, Cathy Jamieson, justice minister since the 2003 election. Flanked by Christie Smith from the Scottish Executive Justice Department and Richard Henderson of the Scottish Executive Legal and Parliamentary Services Unit she explained the Executive’s position in relation to the print, which was that a mutually agreed settlement was made to reflect the Executive’s acceptance of the fact that a misidentification had occurred, but that there had been no malicious intent on the part of the SCRO officers.
Soon Pauline McNeill, the convener, was locked in a fruitless exchange with Robert Henderson, trying to find out why the Executive had not been prepared to defend the case in court. As the case was based on an allegation of malice, what was the evidence of malice? If there was none, why did the Executive settle rather than fight?
Then amazingly Pauline McNeill uttered a statement that made nonsense of the evidence presented to, and heard by, the inquiry to date. ‘In our inquiry,’ she said, ‘we have heard no evidence that there was malicious intent. We have heard suggestions of other things, but not malicious intent. However, if the allegation against the Executive was that there was malicious intent, I want to know what the issues were that made you decide to settle the case.’
This was a serious misrepresentation of the facts, for it was quite clear that a number of witnesses, including Arie Zeelenberg and Pat Wertheim, had stated in their evidence that they believed that the experts were aware they were wrong and had hidden this fact. In his written submission, Andrew Smith QC had laid out ten factors which he believed added up to malicious intent by the experts. Crucially, the inquiry, for reasons best known to its members, failed to obtain a copy of the full summary of the Mackay report – providing clear evidence of malicious behaviour leading to criminality – that was freely available on the internet.
Eventually Cathy Jamieson tried once more to explain how the settlement had come about. ‘As I understand it, at each stage of the legal process, people were trying to pin down exactly what the case against the Executive was. Over time, that became refined to the point at which we had very specific things that could have gone to court had we not made moves to settle.’ Although what those ‘very specific things’ were, she would not say.
Questioned on the MacLeod reports by Bruce McFee, the justice minister admitted, ‘The question of whether he would have described what happened as negligence is open to interpretation. If you look at the wording in the reports, you will see that he talks about there not necessarily being the due care and attention that would have been expected.’
Later in her evidence, the minister edged a little closer to clarity, saying, ‘I took the decision that the best thing was to try to make the settlement, especially given the length of time that had elapsed, and to move on. I did that for a number of reasons – partly because I was concerned about all the individuals involved in the situation and partly because I was concerned about the future of the Scottish Fingerprint Service and how we should move on. I did not think that it was in anyone’s interests for the process to continue and for no one in the situation to be able to move on.’
Yet this explanation, commendable as it might be, did not account for the extraordinary delays in the process, nor did it indicate when she had reached this view, nor whether it had been before or after the MacLeod reports had all but forced it on her. She had been minister for more than three years, so why did the settlement not happen at the start of her tenure, rather than towards the end of it?
Eventually the minister finished her explanations and the oral evidence part of the inquiry was closed. Now the committee would need to consider what it had heard, look at the vast pile of documents once more, and try to come to a conclusion.
Iain and Michael had discussed the inquiry several times with Alex Neil and with others. They felt that for a number of reasons it was fundamentally flawed. It was clear that some members were deeply partisan and it was difficult to escape the conclusion that party-political considerations had weighed heavily on some minds. There is little doubt that efforts had been made to put Shirley and her experts on trial with little protection being afforded by the chair.
Despite an undertaking by Pauline McNeill that the inquiry would not do so, it became enmeshed in a battle of experts’ opinions that raged over their heads, with members lacking the necessary forensic skills to effectively challenge witnesses. Even when it became obvious that lies were being told, the convener had failed to invoke her powers to put witnesses on oath.
Key witnesses, like Harry Bell who had been a central figure at Lockerbie and head of the SCRO, and William Gilchrist, the regional procurator fiscal, who recommended no prosecution, were not called. The inquiry had been too narrow in its remit in terms of examining political decisions, though it had also strayed too far from its remit when ludicrously trying to adjudicate on the key fingerprint; the very thing it said it would not and must not do.
At the outset it had been generally accepted that the inquiry would be putting the parliament itself in the dock in terms of public expectation given the high profile of the issue and its importance. If that had been so, then the parliament had failed to hold up to scrutiny.
Furthermore, as the weeks passed there was no sign of the committee’s report actually appearing. Other big stories to do with the case came and went. One was the proposal by Mulhern to offer the experts redeployment or early retirement so as to allow a fresh start for the SCRO. This was revealed in mid September by the BBC and the matter grumbled on through the autumn and into the winter as Unison tried to negotiate a settlement, all the while decrying the decision.
In early October, Lord McCluskey mounted an unprecedented attack on the lord advocate. In a Scotsman article entitled ‘Honey, We Shrunk the Lord Advocate’, he described Shirley’s case as ‘a picture of confusion, contradiction, injustice, mystery and rumour.’ ‘Justice has not been seen to be done,’ he wrote. ‘There is no transparency. The public purse has paid out huge sums; we still do not know why.’
He concluded:
If the Lord Advocate cannot find real ways to vindicate his independence on matters traditionally within his domain, especially those affecting the administration of justice and the independence of the judiciary, he will lose the confidence of those whose lives are spent in the courts. The Lord Advocate is traditionally the watchdog for justice; he is the only one we have. We don’t want him barking – but the occasional growl would be reassuring. It is late – but not too late – to start.
The following day the lord advocate suddenly resigned and despite his denials, the media speculated that it was in some way connected with the failures highlighted by Shirley’s case and pointed up by Lord McCluskey.
Colin Boyd was succeeded as Scotland’s top law officer by the solicitor general, Elish Angiolini. In a letter of congratulation to her Iain made three requests: that the Marion Ross murder investigation be re-opened; that a fresh examination be made into the circumstances surrounding the police investigations into the Marion Ross murder; and that every aspect of the actions of the murder teams led by Detective Chief Inspector Stephen Heath in both investigations be examined to ensure that there was no criminal or other improper conduct by any persons.
To date no reply has been received.
October and then November passed and there was still no report. Leaks to the press suggested it would now appear, at the earliest, in late January, over a decade after Marion Ross had been found dead. Such a late publication might preclude a full parliamentary debate on the report before the end of the session and, of course, the next Scottish parliamentary election.
As they prepared for Christmas 2006, Mairi remarked how it was yet another year when they would spend Christmas and New Year waiting for a report, another year when Scotla
nd’s most powerful people failed to speak out about injustice. But it did not feel quite that way for Iain. The committee process had finally destroyed any confidence he had that the full truth would eventually be known. In America the Mayfield case had just finished, with not only a multi-million dollar settlement, but also a formal apology which began with the ringing words, ‘The United States of America apologies to Brandon Mayfield.’
Iain knew he would never read a similar statement authorised by Jack McConnell. This so-called ‘best small country in the world’ had a government which could not accept responsibility and endlessly attempted to avoid saying sorry. People’s lives could be ruined, but the politicians and civil servants would simply increase the spin to twist their own way out of trouble.
There were exceptions of course, but at present they were voices on the margins. Scotland was dominated by a culture of excuse and evasion and had it not been for the superhuman effort of a few people who believed in truth, then that culture would have completely destroyed Shirley. It would have done the same to him too, he thought.
So it was probably time to be done with the whole thing, time to stop worrying about a report that was bound to be flawed, to stop obsessing about what others thought or read, to tell the story the way he saw it, and then to stop talking about it. It was time to give thanks that he had been able, with others, to achieve something for his daughter and to move on, happy to have survived everything that had been thrown at him and Shirley during a most extraordinary decade – happiest of all, perhaps, to finally have let go.
16
Some Questions and Some Answers
Ten Years On
The tenth anniversary of the murder of Marion Ross was on 8 January 2007 and on 11 February 2007 it had been ten years since Shirley was told by DI McAllister that one of her prints had been found at the murder scene. After over a decade, the murderer of Marion Ross has still not been brought to justice, nor has there been any full and adequate explanation which would account for the campaign of persecution that Shirley suffered and for the three years that David Asbury spent in prison.
So far, this book has been written in the third person, allowing, as far as is ever possible, the verifiable facts to speak for themselves. But we, the authors, have also been characters in this story and since it began we have been faced with more and more questions. Now, in conclusion, we are going to try to provide some answers.
As we have sought to demonstrate, we believe that the facts support our analysis of events. We also believe that the facts support the answers we are going to suggest to the seven key questions in the case. Of course we will not and cannot provide a set of responses so definitive that all controversy about them will cease. Some of what we write will have to be speculative but we have thought about these matters in considerable depth and will offer our honest opinion based on the relevant facts. Perhaps, in time, more information will come to hand and all of the mysteries surrounding the death of Marion Ross will be solved.
In addition, all of this is set down in the knowledge that we must avoid legal action against us by people who are still keen to have the truth suppressed. Nonetheless, this concluding chapter should, at the very least, offer readers some form of reassurance that there are answers available. The fact that they are not known is only because Scotland’s political leaders have refused to seek them out.
So let us begin with the first question.
What happened to produce two crucial fingerprint misidentifications in one murder investigation?
We have already looked in detail at the evidence given to the parliamentary inquiry by the four fingerprint experts who were at the centre of the misidentification of Shirley’s print. It seems likely to us that in the very early stages this original misidentification was indeed a mistake, and most probably an honest one at that. Those working at the SCRO had a huge workload, they were poorly managed and the culture of the organisation was oppressive and inimical to the maintenance of high standards. Over four hundred fingerprints from the murder scene had to be dealt with. Mistakes were inevitable.
Alas, however, there was also no mechanism for dealing with such mistakes in an open and constructive way. So what began as an honest mistake became something else when one or more fingerprint experts became aware that they might be, and probably were, wrong. We think that moment was, most likely, during the blind test, if not earlier, when it became clear that – despite the irregularities of the testing process and the attempts within it to cajole others to come to the same conclusion – the identification was far from unanimously agreed. Mr Macpherson, who played the central part in the events, may already have suspected that was the case, given the inconsistencies in his testimony when compared to that of Alistair Geddes and to the Mackay report timeline. On the other hand, experts like Ms McBride may never have realised it was an erroneous identification, either because of a failure of skill or a refusal to accept any view but her own. What is certain is that one or more experts knew the identification was wrong not long after it had been made, but, for a number of possible reasons, did not speak out.
Therefore the problems that Shirley then experienced did not occur as a result of the original mistake, but rather as a result of the failure to admit or accept that a mistake had been made once this became obvious. We shall return to that issue in terms of the attitude of the SCRO and the Executive later in this chapter.
The misidentification of the print of Marion Ross on the biscuit tin recovered from David Asbury’s house is not so easily explained, however. Until this print was identified, the prosecution case against Asbury was far from watertight. Independent experts have testified that this mistake is technically far worse than the one with Shirley’s print. This is truly a mistake that should never have happened – if, of course, it was a mistake. It has to be remembered that in the aftermath of HMCIC’s report in 2000, when the experts’ work over years on either side of the two misidentifications was checked by independent police service experts from outside of Scotland, it was found to be perfect.
The central question, then, is how could so many experts of proven competency suddenly make not one, but two catastrophic errors, especially as when all their previous and subsequent work was checked it was found to be error-free?
We believe there is evidence which would support the view that this ‘mistake’ was deliberate and that there may have been collusion, possibly between one or more experts and police officers, to create false evidence in order to convict Asbury.
On 29 January when the Marion Ross print was found on the tin recovered from Asbury’s house, the case against him became substantive; the much-needed evidence of a link between Marion Ross and Asbury had been acquired.
So when the thumbprint was identified two weeks later as Shirley’s, any conspirators could not admit a mistake: if they did there was a possibility that all the fingerprints in the case would need to be re-examined. That would have blown the Asbury case and perhaps have revealed severe malpractice, not to mention criminality.
At this moment two totally separate and unrelated actions were on a collision course. At first Shirley’s denials caused few ripples. As she had backed down once before when challenged on an identification by Macpherson, the expectation, no doubt, was that she would back down again. But it would soon become obvious to any conspirators that her continuing and very public denials were focusing attention on the accuracy of their work.
Given that in a century of such testimony in Scottish courts, fingerprint evidence had not been successfully challenged, the chances of another route to a discovery of the ‘mistake’ about the Ross print were remote. So it is obvious to us that if a police officer believed a suspect was guilty but did not have enough evidence, it would be possible for him or her, with little fear of being found out, to conspire with a fingerprint expert to falsely testify to a fingerprint identification.
Did that happen in this case? We have no way of being certain, but whilst we appreciate the seriousn
ess of any such allegation, it is no more serious than those allegations which resulted in prison for David Asbury and a ruined decade for Shirley McKie. It is a conjecture which also makes some sense of the inexplicable behaviour of some of the key players over a long period. It is a theory into which a formal inquiry should be made as a matter of urgency.
Why were the misidentifications not noticed and admitted higher up the chain?
The two prints now come together. If our theory is correct, then within the SCRO, the expert or experts responsible for the false claim about the Marion Ross print must have realised very quickly that if the McKie print was successfully challenged then the Crown might look more closely at the other prints in the case, particularly as the likelihood of convicting Asbury rested almost entirely on fingerprint evidence. Fortunately for them, given the culture of arrogance, bullying and intimidation that existed within the Glasgow bureau of the SCRO, it would have been no hard thing to ensure that colleagues and more senior management agreed with the ‘identifications’ and that any who disagreed would be silenced.
That stubborn and defensive refusal to accept mistakes not only existed amongst the experts, but was clearly encouraged by management who were lazy and incompetent.
All this was compounded by a prosecution hell-bent on convicting David Asbury, no matter the cost to Shirley. A number of senior police officers and prosecution officials were determined that, come what may, this ‘rogue officer’ was not going to threaten the conviction. Their efforts to silence Shirley played right into the hands of any experts and others who wanted to cover up their mistakes and criminality.
The Price of Innocence Page 25
