The Price of Innocence

by Michael Russell

  Unknown to Michael Russell, behind-the-scenes attempts were being made to influence the matter and prevent the debate taking place. Civil servants and lawyers were exchanging a flood of letter and emails, all of them indicative of huge worry about what issues the debate might bring up. The general thrust of the correspondence was that the debate, if at all possible, should be prevented from taking place.

  Sir David Steel – perhaps in response to the vigorous protests about the debate – then wrote to business managers asking for all members’ planned speeches to be submitted to him by 13 May so he could consider the content and seek legal advice.

  However, those precautions were eventually irrelevant for on 15 May itself the presiding officer decided that the debate could not go ahead because, he felt, it would be ‘impossible to keep away from these matters which fall foul of the sub judice rule of the Parliament’. The decision had actually been made the day before and notified to Russell and the members of the parliamentary bureau. Certainly the civil service knew about it on 14 May, for a very upbeat memo immediately went round the very top levels of the justice department: ‘Just to confirm that the members’ business debate on 15 May on Shirley McKie will not go ahead . . . You can all give a big sigh of relief.’

  At the opening of business on the afternoon of 15 May, Sir David Steel addressed the chamber with Iain and Shirley watching from the public gallery. They had hoped to be seeing and hearing the debate itself, but that was not to be. Steel firstly explained that because of the current civil action against, among others, Scottish Executive ministers, no minister would be put up to respond to the debate. It is for that reason that he had asked Michael Russell and other members to submit their speeches and seek advice from his office on the application of the sub judice rule. However, when he read Michael Russell’s draft, he took the view that it ‘fell foul of the sub judice rule’ and had accordingly informed Russell and the parliamentary bureau that the debate could not go ahead.

  In response, Michael Russell thanked him for his cooperation during the negotiations and accepted that there was ‘a requirement within the Scotland Act 1998 to have a sub judice rule’. But, he argued, the parliament’s sub judice rule went too far. In this instance, the issue was being debated in the newspapers on the radio and in television programmes. ‘Members must ask why it cannot take place in Scotland’s parliament. It seems ludicrous to the public at large and to the media that we are forbidden from raising the case in parliament.’

  He went on to note that there was nothing new in what he was going to say and that it was important that the Executive responded to concerns at home and abroad. He also pointed out that the minister for justice had yet to respond to the statement from the 129 international fingerprint experts about the case. (Eventually he received an acknowledgment of the statement as having been sent to the minister but no action was ever taken.) He concluded by saying that a sub judice rule ought to ‘command respect within the chamber and from the media’, but that instead it was damaging debate and ‘making parliament look silly’.

  A number of other members wanted to make points of order, including the formidable combination of Winnie Ewing (who was very doubtful that the sub judice rule was being correctly applied, particularly as the McKie action was a civil one) and her son Fergus, who was equally sceptical about the presiding officer’s ruling, but wryly praised Michael Russell. ‘Having read the speech, I can say, without commenting on its contents,’ he said, ‘that it is one of the greatest speeches that Mr Russell has not made.’

  Michael Russell left the chamber after those points of order and met Iain and Shirley in the parliament’s famous black-and-white corridor. Shirley was livid, not just about the ruling, but also about the behaviour of some MSPs. There had been much barracking and attempted interruption during Russell’s speech. In particular, Shirley singled out a Labour back-bencher, Pauline McNeill, who was recorded by the official report as shouting out ‘Rubbish!’ It is therefore ironic that, as chair of the Justice 1 committee four years later, Pauline McNeill would preside over the major parliamentary inquiry into the McKie case.

  Once again, the case was back in the headlines, dominating radio and television that night in Scotland. Mike Russell appeared on BBC Newsnight Scotland (a programme that, under its editor Craig Williams and producer Torquil Reoch was eventually to play a crucial part in forcing a political volte-face by the minister for justice) and criticised the sub judice decision, arguing, ‘There was nothing that any of us was going to say that wasn’t already in the public domain.’

  Professor Colin Espie, who had been sitting with the McKies when the debate had been cancelled, and whose opinion that Shirley had been speaking the truth had been ignored by both the police and justice department, immediately wrote to Jim Wallace. ‘I attended the Scottish parliament on the afternoon of 15 May. It makes an interesting study in human behaviour, both verbal and non-verbal. There appeared to be some who treat the discussion of justice issues with contempt, as witnessed by their puerile behaviour. There were others who appeared restive and fidgety, unable to make eye contact either with the McKie family or Michael Russell. I will leave it to you to consider why that might be, because I do not think it takes a psychologist to come to a reliable conclusion.’ He then reiterated his argument that he had found, in a professional examination, Shirley to be truthful and that he had told Strathclyde Police that fact.

  On 19 May – four days after the abortive attempt to air the issue in the Scottish parliament – the second Panorama programme, presented and researched by Shelley Jofre, was broadcast UK-wide. It focused primarily on what had happened to Alan McNamara since the previous programme which had ended with his conviction.

  The camera followed Alan as he prepared to go to court for sentencing and then showed Alan’s family stunned and despairing when he was sent down for thirty months for a first offence. Alan’s ailing father Tom was filmed on the phone to a friend breaking the shocking news and Alan’s mother, Irene, who had been in court, added, ‘And their faces, Alan’s and Lisa’s faces, it was dreadful.’

  Panorama had brought top Netherlands expert Nicolas van den Berg to Manchester to assess if the print which convicted Alan could have come from the jewellery box as alleged. He concluded that the print must have come from a rounded article and not a flat one. Allan Bayle was interviewed, backing up his findings, and then evidence was revealed which showed that the Greater Manchester police experts had previously made two other mistakes which – although eventually admitted – had had a massive effect on innocent people’s lives.

  Shelley Jofre then showed that there were contradictions in the prosecution statements and that available forensic evidence had been sidelined. For example, prints had also been taken from vases in the burgled house. They had the very rounded surface that defence experts had said the print came from. The scenes-of-crime officer who lifted them was unsure of exactly which vases he had examined. Could a mistake have been made and the prints mixed up? And if so, would that not come close to the position that Alan and his family had maintained all along – that the print must have come off some other object in the house that he had touched, quite innocently, in his shop or in one of his suppliers’ warehouses?

  While the factual side of the programme showing how the Manchester experts had got it wrong was gripping, the family emotions as Alan went to prison were heart-rending. Shirley was interviewed, and her empathy with him was clear. ‘I have real concerns for Alan McNamara . . . I would love to say it will be easy, you know, it will be sorted out, but unfortunately that won’t happen. He’ll probably have to serve his whole sentence and then his fight will start.’

  Alan’s father got the last word. ‘You know, we’re supposed to have the best justice system in the world . . . we’ve learnt that the British justice system is not what we thought it was, that’s a certainty.’

  Now Michael Specter’s long-awaited piece on fingerprinting appeared in the New Yorker. His theme was t
hat more debate and self-criticism were required if fingerprinting was truly to live up to its claim to be a science. Describing the Fingerprint Society itself, he seemed more than a little jaundiced by the attempt to exclude him from their conference and he observed that it appeared to be ‘a club – the type where you might expect to stumble upon Sherlock Holmes or G. K. Chesterton’. The inference was that it needed to move into the twenty-first century.

  Specter’s piece featured, of course, the McKie case. It was now ubiquitous, reported on every continent and debated at every fingerprint gathering. But, almost alone in the world, the Scottish legal and political establishment was still steadfast in its refusal to act on the matter. More troublingly for Iain and Shirley, it was not at all clear how that might eventually happen. What was needed, they both thought, was some sort of new approach, or some sort of unexpected breakthrough. But they had no idea from where, or when, that might emerge.

  10

  Silencing Mackay

  Day 2,465

  In the absence of dramatic good fortune or major crises, most of us just go on living. Shirley was trying to do just that during 2002 and 2003, as her lawyers undertook the long process of preparing her case against the Scottish Executive. At times it was impossible, particularly when events thrust her into a media spotlight. But at other times she could take a back seat, even if she was not totally out of the story.

  Such an occasion was the hearing in the High Court on 14 August 2002, which finally quashed David Asbury’s conviction for the murder of Marion Ross. The evidence presented at the hearing relied heavily on the fact that it was only through Shirley’s questioning of her print that doubts had been raised about the one identified on the tin found in Asbury’s bedroom. This was the fingerprint that had led directly to his conviction for murder.

  The advocate depute who was presenting the case for the Crown, Gerry Hanretty QC, put up no challenge at all, accepting that the conviction should fall. It was left to Lord Gill, Scotland’s second most senior judge to express, in the usual judicial understatement, ‘considerable concern . . . that the administration of justice has got into this position’. Asbury himself described his experience of wrongful conviction and the resulting three and a half years in prison as ‘beyond words and beyond description’.

  But there was still no admission of error from the SCRO itself. In fact, the SCRO, encouraged by the flawed Black report, and at least tacitly supported by the Scottish Executive and the Crown Office despite overwhelming independent evidence, went on denying that it had made two wrong identifications in the one case. Such arrogance was unparalleled in the history of fingerprinting.

  A brief respite from over five years of struggle was at hand for Mairi and Iain, however. Having met only a few months before Shirley’s trauma started in 1997, their relationship had survived and prospered and on 28 September, at a small private family ceremony, they were married. All seven children from their previous marriages were there as proof that the two of them had been unconditionally accepted into both families. Of the many positive things that had emerged from the ongoing struggle, one was undoubtedly seeing two families drawing closer together and finding strength and joy in each other.

  Summer was over and the autumn of 2002 well advanced before Alan McNamara appeared in the Royal Courts of Justice in London to challenge the decision not to allow him to appeal his conviction.

  Iain travelled down for the hearing and joined Allan Bayle on the public benches. The case had now come to the attention of Michael Mansfield QC, one of the most renowned barristers in England and one who specialised in miscarriages of justice. He was at his most persuasive as he told the judges about new expert opinion that maintained that the thumbprint had none of the characteristics which would be expected if it had been taken from the top of a flat jewellery box. These experts were unanimous that it could only have come from a smooth, curved surface such as a vase – a vase like the ones in the burgled house and the ones that Alan sold in his shop. Mr Mansfield also alleged that there was a ‘serious question mark’ over the scenes-of-crime evidence from the original trial.

  This was enough for the three appeal judges and they overturned the previous negative decision. Iain came back to Scotland heartened by both this result and the Asbury one and hopeful that, despite the horror of prison and the resultant damage to Alan McNamara’s family, the truth in both the cases would heal everything when it was finally revealed.

  Shirley was aware, as Christmas passed into New Year, that it had been six years since the murder. Not only was there no conclusion to that investigation, there was also no resolution of the issues of false fingerprint identification that had arisen out of the murder. The SCRO continued to defend the indefensible, and the Scottish Executive backed them up. When – if ever – would something change?

  Michael Russell continued to be active in the parliament, asking questions and seeking new information, but he also had his own problems to contend with, as he had been placed lower down his party’s regional list than in 1999 as a result of political infighting, and he faced the prospect of losing his seat. Shirley and Iain found it difficult to envisage what would happen in terms of political and parliamentary support should that happen.

  Despite the work it entailed, Iain always tried to accept speaking invitations which would let him publicise the case and meet individuals who could help throw new light on it. In March 2003, he spoke at a conference in Oxford entitled ‘Forensic Science: Fact and Fiction’, which was run by the Forensic Science Society and the California Association of Criminalists. The key issue raised in his talk was that, without adherence to ethical behaviour, the expert could not expect to enjoy public confidence. Most experts present at the conference openly agreed with him and most importantly the problems with fingerprinting within the SCRO were reaching an ever-wider audience.

  Refreshed, Iain was soon writing to the lord advocate asking him to launch an immediate independent inquiry into why Colin Espie’s warnings to the police and the minister for justice that Shirley was speaking the truth had been ignored.

  It was nearly three months before a reply was received from Rachael Weir, procurator fiscal depute. Much imagination seemed to have gone into devising a new explanation which would refute Espie, for Ms Weir contended, ‘Dr McLay considered his role to be therapeutic. As a result, he considered that he was not entitled to pass Professor Espie’s report to Strathclyde Police.’

  How ‘therapeutic’, Iain wondered, is a doctor who, having suppressed a report suggesting his patient’s innocence, then goes on to submit a report leading to her arrest?

  Despite a further parliamentary question, neither the lord advocate nor Jim Wallace would move from their strategy of doing and saying nothing when confronted with facts they should have known and with an opinion that should have changed everything.

  Iain was more shocked by the attitude to Professor Espie than he had been by most of the other instances of neglect of duties he had observed over the past six years. To him, it signified that no matter what evidence was brought forward, the establishment was not prepared to admit the possibility of error, nor to show compassion to Shirley.

  The professor was not finished however and as he reflected in a letter to the Herald in April of the following year, ‘The simple truth is that one day Shirley McKie spoke the truth . . . She did what was right because to do otherwise was not acceptable to her . . . The deeper meaning I guess is, firstly, there is always a price to be paid where truth is concerned, and secondly, human systems do not actually have much to say about the pursuit of truth. I would be interested to hear what Scotland’s moral and spiritual leaders have to say – not much so far. Should we still be proud of our children when they tell the truth, rather than first counting the personal cost?’

  At this time, Iain decided it would be beneficial to hold another press conference to report on progress and highlight current issues. Michael Russell had, up until now, chaired these conferences, but in the S
cottish election of 1 May 2003 Russell, as he feared he might, had lost his seat and was no longer in a position to represent Shirley and Iain as their MSP. Consequently, in one of the many phone calls he and Iain shared during May and June 2003 he suggested that someone else take over and that he withdraw from the case.

  Iain would have none of it, and nor would Shirley. They were shocked that political machinations had removed Russell from the parliament – a shock that seemed to be shared by most of Scotland’s media – but they made it clear that they regarded him as a close friend and that they wanted him to continue to work with them in that capacity, if he was willing. He agreed so to do, but he still was reluctant to chair this first post-election press conference, and eventually it was agreed that it should be done by Alasdair Morgan, another south of Scotland SNP MSP who had agreed to take on much of Russell’s advocacy role in the case.

  At the start of the press conference, which was well attended as ever, Colin Espie spoke movingly about Shirley’s plight and gave an account of his concerns and his correspondence with the Executive. Then Allan Bayle revealed that, while giving evidence at a murder trial in Philadelphia, the judge had raised the McKie case, to warn the jury that there were circumstances in which to indicate that fingerprint evidence was fallible. Dr Allan Jamieson, director of the Forensic Institute, whom Iain had met at the Oxford forensic conference, continued that theme by pointing out the damage the whole case was causing to forensic sciences in Scotland. Michael Russell spoke passionately in Shirley’s support and, for the first time at a press conference, urged MSPs to start agitating for a full public inquiry. This call was taken up by John Scott, the human rights lawyer who was scathing in his criticism of any system which allowed such an injustice to drag on as the McKie case had. Shirley, with courage and clarity, briefly addressed the journalists too, though she always found it hard.