The Price of Innocence

by Michael Russell

  Allan Bayle was a highly experienced fingerprint officer, who at that time was attached to the Scientific Support College at the Hendon Police Training Unit. He was also lecturing on all fingerprint and crime scene examination techniques. In early September 1999 he was shown the ‘McKie’ impressions whilst working on the Lockerbie case in Canada. He came to the conclusion that there were ‘significant dissimilarities’ and that the print was definitely not Shirley’s.

  However, on his return home he found that senior officers in the Metropolitan Police were very reluctant to discuss the matter. ‘They knew that there was a problem,’ he said, ‘but they did not want to get involved in it. And they didn’t want any of their staff or colleagues involved in it either.’

  In November of that year, Allan was working with the world-renowned Canadian fingerprint expert David Ashbaugh, and they were lecturing in London and Durham. They jointly presented the ‘McKie’ marks to their students and not one of them said there was a match. Yet having done some more work on the matter, Allan was astonished to find that amongst the worldwide voices raised, there were very few from the UK. The SCRO seemed to be demanding loyalty from its allies.

  Allan decided he could not stay silent, so on 19 January 2000 he posted his support on the American fingerprint site, making it clear that he agreed with Pat Wertheim, David Grieve and Ed German that the latent mark was definitely not made by Shirley McKie. ‘I remember saying to my wife,’ Allan later told Iain, ‘ “I have just put my career on the line. There will be fireworks, but this had to be done.” She gave me her full backing. It was a great feeling.’

  The fireworks began soon after. On 21 January 2000, Allan was warned of possible disciplinary action. From that day, he was banned from going to any meetings and he was not allowed to lecture on fingerprints.

  On 15 February 2000, he was interviewed about his disclosure on the internet by his line manager, Abbas Sheikh. Allan was accompanied by a union representative. The interview was stopped because everyone present could see there were major problems with the case, and it was obvious that Allan was telling the truth about a serious miscarriage of justice.

  Although he was not disciplined, it was made clear that he should stay away from the controversy. However, he continued to show interest in the case, which was gaining more and more attention – although not always of the right sort. In March 2000, he met with David Grieve and Pat Wertheim at the fingerprint conference in Liverpool, but because they were afraid they were under surveillance, they only briefly talked about the case whilst together in a lift.

  Eventually Allan Bayle decided he had enough. He was already in conversation with the McKie family about helping them and he was aware that doubts were being expressed about another fingerprint in the Marion Ross murder case. He therefore decided to resign from Scotland Yard after twenty-five years of service and become an independent expert. Like so many whistle-blowers before him, he had been forced out the job he loved as a result of the system trying to protect itself.

  Suddenly the first crack in the official edifice appeared. On 8 February the Herald reported that, following a unanimous decision by ACPOS, the SCRO’s executive committee had decided to invite William Taylor, Her Majesty’s Chief Inspector of Constabulary (HMCIC), to carry out an independent assessment of the fingerprint evidence used in the case against Shirley. It seemed that ACPOS had decided that it needed to stop the speculation and that the best way might be to bring forward a routine inspection. The news was announced to the press by ACC Robertson and Iain was quickly and officially informed, which was a welcome new development. Mr Taylor was not going to freeze out the family, but instead wanted Shirley to be aware that an attempt was being made to get at the truth. Iain welcomed that, but he was not going to give up asking questions, and he continued to remind both the minister for justice and Colin Boyd, the new lord advocate, that they had not responded to his substantive allegations made in letters over the past nine months about malpractice by the SCRO and the police. Despite continued correspondence, neither the Crown Office nor the Scottish Executive seemed prepared to even consider such matters.

  There was also an on-going attempt to limit what William Taylor could look at when he inspected the SCRO, as specific allegations of criminal wrongdoing or complaints about individual members of the police service were deemed, as Justice Minister Jim Wallace wrote in a letter to Michael Russell on 22 March 2000, ‘a matter for the procurator fiscal or the chief constable of the force concerned’. This effectively ruled out any examination of the matters which Iain McKie continued to raise. Nobody in power wanted to address the issues that had the most potential to cause trouble. Once again, it was the BBC that was to make the authorities sit up and pay attention to those very matters.

  Even whilst the first Frontline Scotland programme had been in preparation, the production team had started to talk about a second one. ‘Finger of Suspicion’, broadcast in January, had resulted in a huge increase in interest in Shirley’s case and an inspection of the SCRO, now underway. ‘False Impression’, the second programme, broadcast on 16 May, would, in time, produce equally dramatic results.

  Once again the programme opened with a voiceover from journalist and presenter Shelley Jofre: ‘Tonight we can reveal shocking new evidence of a second misidentification by the SCRO. It has prompted a scandal unparalleled in the history of British fingerprinting.’

  Lawyer John Scott from the Scottish Human Rights Centre also appeared again and he underlined the importance of the latest revelations and set them in context: ‘If what came out of your first programme was alarming in relation to Shirley’s position and her fingerprint, then this is even more concerning. It’s difficult to see how this can be anything other than the most serious problem that has ever been encountered with fingerprint evidence.’

  Then the programme delivered its bombshell. During this new investigation, the BBC had asked Pat Wertheim and Allan Bayle to examine a different print. This time it was the one that the SCRO said was murder victim Marion Ross’s and which had been found on the biscuit tin discovered by Shirley in David Asbury’s bedroom. As Shelley Jofre explained, most of the evidence against Asbury had been circumstantial, so the print on the tin proved crucial to his conviction. Amelia Crisp, Asbury’s mother, was interviewed on camera, saying, ‘That seemed to be the damning evidence. The fact there was a fingerprint on that tin, the prosecution at his trial said the tin belonged to Marion Ross and he’d taken the tin with money in it out of her home, and that’s why her print was on it. But that’s not the case at all.’

  Jofre went on to explain that they had brought Pat Wertheim from his home in Oregon to examine the tin and he was filmed meeting Allan Bayle at the procurator fiscal’s office in Kilmarnock, less than a mile from Marion Ross’s house. Then the programme followed them as they worked, Pat showing Allan Bayle the mark from the tin and the fingerprint taken from Marion Ross after her death, which was identified as the mark.

  Then Pat Wertheim took the audience through his analysis step by step and in so doing showed that it was absolutely obvious that the prints were very different. He concluded, ‘The so-called sixteen points that were found by the SCRO in this are pure fiction. . . . The fingerprint which was on the tin . . . is not Marion Ross’s print. It’s that simple.’

  Shelley pressed him further. ‘Can you be absolutely sure about that?’

  Pat responded without hesitation, ‘Absolutely sure. It’s not a difficult thing to see.’ Allan Bayle was just as firm.

  Now the Crown Office had two major problems, both centred on the issue of fingerprinting. Not only had Shirley had been cleared unanimously by a jury despite the allegation that her print was found in Marion Ross’s house, but now the fingerprint evidence that had condemned David Asbury to prison for life was being challenged. The case against him, which had rested entirely on this fingerprint evidence, was falling to pieces. Would the SCRO, the police, the Crown Office and the whole of the Scottish Executive, in l
ight of this, continue their refusal to face the facts?

  7

  Exonerated in Parliament

  Day 1,261

  A year had now passed since Shirley’s trial and there was still no sign of any apology or recompense from the police or from the Crown Office. In fact, despite the revelations in Frontline Scotland and the obvious problems that now beset the SCRO and the Scottish justice system, the tone of responses to Iain’s ongoing correspondence with the Crown Office and with the Scottish Executive remained largely negative and non-committal.

  Iain and Shirley had by now become suspicious that HMCIC William Taylor’s inquiry would be used to take the pressure off the SCRO as the police and politicians clearly wanted. So they were both very surprised to get two urgent phone calls early on the morning of 22 June.

  The first came from HMCIC’s office, asking Iain and Shirley if a representative of the chief inspector could call on them immediately. The second came from Michael Russell who had been stopped that morning by Iain Campbell, the civil servant who arranged the details of parliamentary business on behalf of the minister for parliament, Tom McCabe. Russell was one of the four members of a parliamentary bureau which was responsible for that business and Campbell wanted Russell to agree to a change in the agenda for the day. Initially reluctant, he was astonished to be told by Campbell that the new item for inclusion was an emergency statement on the McKie case, which would, according to Campbell, give him ‘something to smile about’. Russell quickly agreed that the change should go through and he then phoned Iain to suggest that Shirley and he came through to Edinburgh as quickly as possible. Meanwhile, his office asked the presiding officer for seats in the VIP gallery for them.

  Shirley went straight to Clarkston from her Troon flat and the chief inspector’s representative was with them soon after. The message was short and to the point. Following an independent examination of the SCRO ‘identification’, Arie Zeelenberg, the head of the Netherlands National Fingerprint Unit and Torger Rudrud, an assistant chief constable from Norway, had informed HMCIC that the mark was not Shirley’s print. The minister for justice intended to make an emergency statement in parliament later that day and they were invited to attend. Much to the official’s surprise they said that they knew about the statement and that they already had tickets!

  In Edinburgh, Iain and Shirley were met at the parliament and shown to the VIP gallery in the Church of Scotland Assembly Hall on the Mound. They took their seats just as the presiding officer, Sir David Steel, called the minister for justice, Jim Wallace, for his statement.

  Wallace began by reminding members of the background to the case and told the chamber that HMCIC had decided to make an interim inspection report (in itself a startling innovation), given the seriousness of what he had discovered. He outlined what Shirley and Iain had been told earlier in the day about the independent fingerprint experts’ views on the misidentification of the mark. In light of these experts’ opinions, Mr Taylor, HMCIC, had concluded that the SCRO fingerprint bureau was not fully effective and efficient. Jim Wallace continued, ‘Members will appreciate the seriousness of these findings . . . Fingerprint evidence is a vital tool in detecting and prosecuting crime, and Scottish forces must be able to rely on fingerprint services which meet the highest standards.’

  Normally a response to such a statement is made by the opposition member who holds the relevant portfolio. But Roseanna Cunningham, the shadow minister for justice, had readily ceded her right to Michael Russell, given his close involvement in the case. So it fell to Russell to follow the minister and ask the first question. He began by noting that Shirley and her father were in the gallery to hear the statement, and that the only person who had so far apologised to Shirley over the last three and a half years was the judge who tried her. ‘I would like to hear the minister for justice’, he said, ‘make a similar statement today and apologise to her and her family for three years of torment, so that she can start to put it behind her.’ He then went on to press the matter of the evidence of identification given during Shirley’s trial, asking what would happen to Charles Stewart, Hugh Macpherson and Fiona McBride, the fingerprint officers in the Scottish Criminal Record Office who gave evidence under oath in the case of Shirley McKie. He concluded by seeking the minister’s commitment to a full debate on the report when it was published, as well as action to ensure its recommendations were implemented.

  The minister for justice responded, saying, ‘I am sure that everyone in the parliament recognises that this case has caused great distress to Shirley McKie and her family. I very much regret that and hope that the action we have taken to set up the inspector’s inquiry and to announce the key finding at the earliest possible moment will reassure Shirley McKie and her family of our good intention to see that effective action is taken to remedy deficiencies in the present system.’ But he was less forthcoming about the SCRO officers, merely saying that any conduct issues identified would be dealt with appropriately.

  Phil Gallie, who had been approached by Iain some time before, was next up, and after agreeing with the points that Michael Russell had made, he praised Shirley and her family, commenting that her enforced retirement was ‘a great loss to the police in Scotland’. He continued by saying that he believed there would be a place for her in the police force, if it was her wish to return to it, and he asked the minister to take that forward.

  Emergency statements are not full debates, but Sir David Steel did allow four other members with particular interests to participate before calling the lord advocate, Colin Boyd, to conclude the session. The lord advocate was keen to stress that the Crown had acted in good faith in prosecuting Shirley McKie. ‘It relied on the evidence that was presented to it by officers of the SCRO,’ he said. He then said that he very much regretted that Shirley and her family had undergone ‘this ordeal’ and that the Crown ‘may have lessons to learn from this episode’.

  Then he got to the meat of his announcement. He had, he told the members, already instructed that, prior to trial, ‘in all current and future cases in which fingerprint evidence is provided by the SCRO and is submitted to the procurator fiscal, an independent external check of the evidence will be carried out by another fingerprint bureau.’ He concluded with a long overdue nod in the direction of a young man who had already served three years in jail. ‘In light of the concern, some time ago I instructed that independent experts examine the fingerprint evidence that was led at that [David Asbury’s] trial.’

  Leaving the gallery, Shirley and Iain, who had been joined by Michael Russell, faced a frenzy of TV cameras, photographers and reporters. The following day’s Herald recounted what was said as reporters pressed forward, shoving microphones and small tape recorders under Shirley’s nose. ‘Shirley McKie wept tears of elation at the Scottish parliament after sitting in the public gallery to hear herself completely vindicated by Justice Minister Jim Wallace, and her father expressed bitterness at those involved. “I am just totally elated,” she told journalists. “I am on top of the world. Thank you to everybody who has stuck by me and pushed this, thank you. I never thought I would see this day. I cannot believe it. I hope there are no others out there, but if there are, this should help a great deal.” ’

  Journalists asked whether she would return to the police service, and Shirley replied that the police had had plenty of opportunity to put this right and did not. ‘I am disappointed that no action has been taken against the people responsible for this,’ she said. ‘I see no reason why the people responsible are not suspended today.’

  The Herald reported Iain as echoing her anger, when he stated that those responsible were still sending innocent people to prison. ‘Shirley was harassed, searched, body-searched,’ Iain said, ‘and locked up in a police office where I was the commanding officer at one time. These people are still sitting at their desks and sending innocent people to prison. Today they are saying it is all right, but the only reason it is all right is because Shirley had the guts to stan
d up and be counted. It brought her to the edge of suicide and brought the family to the edge of hell.’

  Eventually Michael Russell and his assistant Alasdair Allan managed to extricate the McKies from the mass of journalists and take them back to the main parliament building before heading out for a celebratory lunch. A few hours later they were home watching the day’s events on television and celebrating once more. To the whole family it seemed like a miracle end to the nightmare. Shirley had now been vindicated twice – first in court, and now in the parliament. Surely that was an end to the matter? Compensation would now be offered and perhaps there might even be a chance for reinstatement if Shirley wanted it. Surely those responsible, those who had refused to admit their error, would now be called to account?

  The extensive news coverage continued the following day with every newspaper covering the story, including the English dailies. The Herald was one of the papers that devoted its leader column to the case, saying, ‘The discovery that an important criminal case, and perhaps many others, has been warped by elementary mistakes in fingerprint identification is chilling in the extreme.’ The implication that there could be many more cases in which misidentification was involved was not lost on the press or public, nor was it lost on the justice system which was desperate to stop that issue dominating coverage.

  As part of that process ACPOS immediately announced the establishment of a presidential review group to investigate the SCRO fingerprint bureau operations. It would be led by the incoming president of the organisation, Willie Rae, the chief constable of Dumfries and Galloway. Asked by the press to explain its role, he replied: ‘We are essentially dealing with differences of opinion and we need to identify where the differences are, why there are differences, and if we can learn any lessons . . . we must ensure that everyone, including chief constables, have confidence in the accuracy of [fingerprint] identifications.’