The Price of Innocence

by Michael Russell

  Iain decided to write directly to Jim Richardson. ‘For months,’ he wrote, ‘I have sat and watched with growing disbelief and anger as the inhuman and coldly calculated behaviour of representatives of Strathclyde Police helped bring my daughter Shirley to breaking point and caused anguish and grief to myself, my family and friends . . . Angry as I am, I hope you never have to stand by helpless and watch Strathclyde Police, the organisation to which you devoted thirty years of your life, hurt and undermine your family and threaten to destroy one of your children.’ He went on to appeal to Richardson to intervene to help Shirley. The letter produced only a curt response in which Mr Richardson claimed that the matter was now sub judice, writing, ‘You will understand that I cannot comment further.’

  Despite all this, Shirley and Iain still felt that DCC Richardson’s decision had to be appealed. The appeal was heard on Tuesday 11 August 1998 by the Legal Assistance Appeals sub-committee which sat in the City Chambers in Glasgow. As was to happen time and time again when independent individuals had the opportunity to listen and consider Shirley’s case, the result was positive. The sub-committee saw the need for public funds in terms of helping her to mount a defence. The appeal was allowed and it was arranged for Shirley to be represented by Peter Watson of Levy and McRae, the Police Federation lawyers. This was a step forward and a warning to Strathclyde Police that it was not going to have things all its own way.

  While meetings with psychologist Zena Wight and continuing medication helped take the edge off Shirley’s despair, Iain was feeling under more and more pressure to protect her from the day-to-day realities of the case. Contact with the outside world was carefully monitored and, as much as possible, bad news was kept from her.

  Unknown to Shirley, Iain had been contacting various experts in the UK, looking for an independent opinion to counter the seemingly ‘irrefutable’ fingerprint evidence of the SCRO identification. However, the search was not going well. Few seemed willing even to discuss the controversial case openly. Eventually one English expert recommended contacting Peter Swann. This ex-chief of the West Yorkshire Police Fingerprint Bureau had held an advisory and research role at the Home Office and was a fellow of the Academy of Experts, a fellow of the Fingerprint Society, a member of the International Association for Identification and a member of the Forensic Science Society. He was one of those experts who threw doubt on crucial fingerprint evidence which helped free Danny McNamee who had been jailed for twenty-five years following the 1982 Hyde Park bombing, and he had been involved in the ‘Yorkshire Ripper’ investigation.

  In early October Shirley accompanied Iain to Wakefield in Yorkshire to consult Swann. He agreed to come to Glasgow and examine the police evidence, specifically undertaking to establish whether the mark found on the door frame had been forged or otherwise fabricated, which still seemed the most likely explanation. Shirley confessed to feeling apprehensive about Swann. ‘Dad, we should find someone else,’ she said. ‘He is too old-school, too much stuck in his ways.’ However, they decided to stick with him and keep looking for alternative experts.

  In December, Peter Watson of Levy and McRae, Shirley’s Federation solicitors, arranged Shirley and Iain’s first meeting with Bert Kerrigan QC, who was to represent her in court. Polite and businesslike, he discussed details of Shirley’s case and Shirley and Iain’s theories of what had happened, which again rested heavily on a possible forgery or fabrication of the print.

  Yet Shirley not was comfortable with Kerrigan either. Being believed had become very important to her. When she tackled Mr Kerrigan, asking him directly, ‘Do you believe me?’ he merely repeated the mantra she had already heard from Peter Watson: ‘It doesn’t matter whether I believe you. Lawyers have to be objective and cannot afford to be subjective.’

  He and others failed to understand what she was asking. After all she had suffered, Shirley needed to be believed for, she thought, if her own legal team didn’t believe her then what chance was there of a jury doing so? Moreover, if her own legal team didn’t believe her, then she would find it difficult to trust them. Iain realised, however, that success would depend on more than trust. For him, the key to destroying the prosecution’s case was to prove that the fingerprint found in the house did not belong to Shirley.

  Shirley had recently begun a computer course at Troon library, as part of an effort to keep herself occupied and ward off depression. As part of her practical work she searched the internet for information on the forgery of fingerprints and in so doing she came across the name of Pat Wertheim, a fingerprint expert based in Oregon, USA. Mr Wertheim was an expert on forgery and had written a number of papers about the issue. He also provided training and consultancy services throughout the USA and abroad.

  Shirley suggested to Peter Watson that they contact Pat Wertheim, but was told that he had already retained ‘the best experts in the world’. With her trial only months away, Shirley insisted that he contact Mr Wertheim immediately. Although he did not, Shirley’s instincts were, in time, to be proved wonderfully correct.

  Christmas came and went, and Shirley steeled herself for the inevitability of a trial during 1999. After a series of meetings with Bert Kerrigan QC and after a lot of agonising deliberation, Shirley asked Peter Watson to replace Mr Kerrigan with someone else. Peter Watson was unhappy with the decision but he agreed to approach Donald Findlay QC, the most high-profile criminal defence advocate in Scotland. A man with a formidable reputation as a persuasive proponent of difficult defences, he would be ideal, if Shirley would approve of him. She willingly did so, but he now had only a few months in which to construct a winning case, and there was still no concrete evidence of Shirley’s innocence to help him.

  Meanwhile, Strathclyde’s most senior officer, Chief Constable Sir John Orr, was getting publicity for his actions in another case which had strong parallels with that of Shirley McKie, although no one realised it at the time. The origins of this case, however, lay much further back.

  On Monday 21 December 1908, an elderly spinster, Marion Gilchrist, was found lying dead on the floor of her flat in a quiet area of Glasgow. Like Marion Ross in Kilmarnock nearly ninety years later, she had suffered horrendous injuries and the crime shocked the local residents. The police investigation resulted in a German Jew, Oscar Slater, who had lived a few streets away from Marion Gilchrist, being arrested in New York. On 6 May 1909 at the High Court in Edinburgh he was sentenced to death for murder.

  The Oscar Slater case was the criminal cause célèbre of its day and, as with the murder of Marion Ross, at the heart of the matter was a twin miscarriage of justice, involving Slater himself and – intriguingly – a police detective and member of the murder investigation team, Lieutenant John Thomas Trench, whose behaviour in the years following Slater’s imprisonment was seen as disloyal to Glasgow City Police. This led to his dismissal from the force.

  Slater’s death sentence was eventually reduced to life imprisonment, but he spent the next eighteen years in Peterhead jail protesting his innocence. A sustained campaign by a number of high-profile celebrities, including the creator of Sherlock Holmes, Sir Arthur Conan Doyle, eventually led to his conviction being quashed. He was eventually released on 14 November 1927, but, of course, his rehabilitation took much longer.

  It was only in 1997 that the secretary of state for Scotland, Donald Dewar, who later became the first First Minister in the Scottish parliament in 1999, asked the home department of the Scottish Office to look into the matter. Inspector Alistair Finlay of Strathclyde Police was given the task of enquiring into the case.

  In June 1998, Finlay concluded that whilst there were question marks over the legality of some of Trench’s actions, these had to be balanced against the police officer’s belief in Slater’s innocence. His actions were honourably intentioned and faithful to that belief. Trench had clearly suffered an injustice as a result of choosing to act morally.

  Thus it was that in early January 1999, just over two years since Marion Ross’s body
had been found, John Orr, in the presence of Trench’s daughter, grandson and great-granddaughters, unveiled a commemorative plaque to Trench and Oscar Slater in the force museum at the police headquarters. He read from the citation on the plague: ‘There are now appeal processes, for both criminal cases in the courts and police discipline hearings, which neither Mr Trench nor Mr Slater had the benefit of at that time. The fact that these safeguards are now in place, and have been for many years, is perhaps a fitting legacy to the hardship that these individuals endured in the spirit of truth and justice.’

  Yet at the very same time that Sir John Orr was espousing these noble principles, history was being repeated within his own force. Perhaps he should have paid more attention to what was happening under his nose, rather than seeking publicity by righting historic wrongs. As with the Oscar Slater case, an innocent man had already been condemned to life imprisonment for a crime he did not commit, and an honourable police officer who dared to speak the truth was about to be put on trial, silenced and dismissed from the force.

  5

  Shirley’s Trial

  Day 833

  Christmas of 1998 and the turn of the year into 1999 were difficult times, but no news seemed good news. After all, it had been nine months since Shirley’s arrest and she had still not been informed of a trial date. Perhaps, she and her family thought to themselves, the nightmare would suddenly end, and they would wake up to discover that it had all been a dream. Perhaps, even now, the fact that it was not her print was being discussed in shocked tones within the SCRO as it tried to track down the cause of the mistake.

  Thursday 28 January 1999 put an end to that speculation. Two stony-faced policemen delivered what Shirley had known would eventually come – the summons to a trial. The nondescript letter was quite clear: ‘You are indicted to appear at the High Court of Justiciary at Glasgow on 1 March 1999 on a charge of perjury.’ If convicted of perjury, Shirley and her family knew she could face a lengthy period in jail. With only six weeks to the trial, Shirley’s lawyers had still found no expert who could challenge the damning fingerprint evidence on which the whole case was based. More time was needed to prepare a defence and the trial was put back until April.

  Meanwhile Shirley continued to spend most of her time with her mother in Troon, or with Iain and Mairi in Glasgow. Restless and depressed, and with fear never far away, she spent most of her time watching television, and sometimes went for a walk.

  With no word on the date of Peter Swann’s examination, Iain saw a need to keep searching for expert opinion and in mid February he rang Levy and McRae, Shirley’s Glasgow solicitors, to ask whether any progress had been made securing help from Pat Wertheim, the American expert Shirley had traced on the internet. Angela McCracken, a lawyer working on the case, merely said she had been unable to contact him, despite having been given his phone number and internet contact details weeks before.

  Always prepared to take matters into his own hands in defence of his daughter (something about which the lawyers frequently complained), he phoned Pat Wertheim himself. Within minutes he was speaking to the expert, who, in a stroke of good luck, was coming to a conference in Liverpool soon. He agreed to liaise with Levy and McRae about carrying out an examination.

  On 2 March Peter Swann examined the door surround and the SCRO’s fingerprint analysis in the High Court building in Glasgow’s Saltmarket. A week later came devastating news. Swann not only agreed with the SCRO that the fingerprint was Shirley’s, but he also categorically ruled out any possibility of forgery or planting of the mark. With less than a month to go before the trial, it seemed to her that there was no prospect of proving her innocence and therefore avoiding imprisonment. The family members put themselves back on suicide watch.

  Iain took a closer look at Swann’s report. It seemed to him that Swann had accepted the SCRO evidence without questioning it. Incredibly, he had not taken Shirley’s prints himself (but when challenged by Iain he quickly asked lawyer Angela McCracken to take some for him) and had instead relied entirely on the prints presented to him by the SCRO. His whole attitude was indicative of his absolute faith in the infallibility of police fingerprint identification. Iain sent his thoughts to the solicitors, writing, ‘What [Peter Swann] appears to have done is go over police/IB [Investigations Bureau]/SCRO procedures and assume they have been carried out correctly.’ Iain continued by stressing that there was a need to examine whether or not the procedures had in fact been performed correctly. Mr Swann, however, stuck firmly to his conclusions and the solicitors seemed loath to press him on them.

  Another problem had also emerged. Shirley and Iain had begun meeting with Shirley’s agreed QC in early February, but the meetings did not go well.

  Donald Findlay is a legend at the Scottish bar, and a larger-than-life figure in wider Scottish public life, owing to his controversial identification with both the Conservative party and Rangers football club. His flirtation with that club’s sectarian tradition has catapulted him into the limelight on more than one occasion, and after Shirley’s trial it was to cost him not only the vice-chairmanship of the club, but also at least one prestigious legal position. With his mutton-chop whiskers and deliberately old-fashioned, though very smart, form of dress, he cuts a distinctive figure and gives the impression of a man who does not like to be contradicted. Shirley and Iain were well aware of his formidable reputation as a defence advocate, which had resulted in him being amongst the top earners at the Scottish bar.

  At his second meeting with Shirley and Iain – Iain always accompanied Shirley to any legal meeting, at her insistence – Findlay decided to lay down his own particular laws and accused Iain of interfering. ‘You will not,’ he instructed, ‘contact or speak to any defence witness of mine. Ever.’

  ‘I will if I need to,’ was Iain’s reply. The other lawyers present paled and the atmosphere became distinctly chilly. Findlay rarely addressed a remark to Iain in subsequent meetings.

  Shirley also found Findlay unsympathetic and once again resented his apparent lack of belief in her innocence. At one point she accused him of ‘acting like a washing machine salesman’, extolling the virtues of any product, depending only on who was paying him. From his reaction to her comment, it was obvious that this was not how he expected his clients to speak to him.

  Yet despite these personality clashes, both Iain and Shirley gradually gained confidence that they had found the right advocate at last. An arrogant, pompous bully with massive self-belief seemed just the right type of person to pit against a police force which was itself displaying those same traits. Furthermore, unlike the first advocate that Shirley’s solicitors had briefed, Findlay clearly could speak the language of the west of Scotland and his keen intellect and phenomenal memory meant that he could quickly grasp the core of any argument, no matter its complexity.

  But even Findlay appeared increasingly at a loss. With only two weeks until the trial was meant to start he even suggested that it might be best, as he put it, to rely on the ‘silly little girl defence’. ‘Just say you were there and must have forgotten,’ he said. It did not seem to occur to him that this would involve Shirley telling a lie, and that she was in this predicament precisely because she would not lie.

  It was little wonder that Shirley’s anxiety increased daily and that she was visibly battling against a complete emotional and physical breakdown. She was now regularly seeing not only her GP but also Zena Wright. Iain, with his background in counselling, had also arranged for her to visit Dr Jim Stewart, who was a hypnotherapist. All helped, but no one could go on helping forever.

  In some ways, Shirley wanted to get the whole thing over with. In others, she did not want even to think about the trial. So it was an oddly mixed blessing that, with time fast running out, another adjournment was announced. The trial would now begin on 21 April.

  Following Swann’s disastrous reports, the search for expert opposition to the SCRO was crucial. In late March, Wertheim left the fingerprint conference i
n Liverpool and travelled to Glasgow. Unlike Peter Swann, he insisted on taking Shirley’s fingerprints himself. He took over thirty prints, at different angles and pressures. Here was an expert who checked everything and assumed nothing.

  A few days after returning to Oregon, he sent the lawyers his report. Donald Findlay then suggested a meeting with Shirley – and only Shirley – in Glasgow. Iain and Nancy drove her there and waited outside, fearing the worst. With two weeks to her trial, the American expert was Shirley’s last hope of challenging the SCRO.

  After an hour, Shirley emerged, tears streaming down her face. Iain and Nancy, who were initially despondent at the sight, were quickly reassured. These were tears of joy and for the first time in months she was smiling. Contrary to Iain and Shirley’s expectations, Wertheim did not speculate that the mark was a forgery or a plant. It was both stranger and simpler than that. He was sure, and was prepared to stand up in court and explain why he was sure, that the mark was not Shirley McKie’s fingerprint. What is more, his findings had been confirmed by another eminent American expert, David Grieve, who had travelled to Scotland with him.

  Now – at last – she had a defence. But even this was a double-edged sword, as Donald Findlay was quick to point out. Gracious enough to admit that he had been taught a lesson, he knew that expert fingerprint testimony, presented by the Crown, had never been successfully challenged in a Scottish court. According to all the precedents in the Scottish justice system – precedents which stretched back for a century – fingerprint experts were never wrong.

  Shirley would have to create a new precedent, and she would have to do so against the full might of the whole justice system, from the Crown Office down.