The media reported most of the issues discussed and the Scotsman crime correspondent Dan McDougall reported the conference’s call for a full public inquiry. Iain, however, was having nagging doubts about the way forward, and he eventually shared these with Mike Russell.
Why, he wondered, should he allow the agony to be prolonged by pursuing the case in this way? Was there not an argument for calling a halt and allowing healing to take place? It was not the first time Iain had felt this way and he knew that he had fought on because Shirley had never wavered in wanting the truth heard and recognised, particularly by her police bosses. She also had to know what had gone wrong, and who was responsible for that. She needed some form of apology to allow her to heal.
In his heart Iain knew he could not stop, just as Shirley could not stop. But that did not mean that he was unable to feel weariness and depression too. It seemed as if the case had been going on for ever, and instead of a retirement that was full of new things and good experiences, it was being eaten up in its entirety in this unequal battle. Sometimes stopping seemed so attractive, and indeed the fairest thing to those around him, such as Mairi, and Shirley’s mother Nancy, whose support had been so crucial over the years.
Iain and Michael talked over his feelings for some time. They concluded that, despite how it felt, they were making progress and that, in the web of letters and documents with which they were faced and in the actions and words of ministers, civil servants, police officers and others it would be possible – eventually – to detect the contradictions, evasions and lies and demonstrate them to enough people to make a difference. Surely a lucky break must come at some stage? In fact, it was nearer than either of them knew.
Ever since the Crown Office had indicated that no criminal action was to be taken against the experts in the SCRO, Iain had been pressing Shirley’s legal team to interview the deputy chief constable, James Mackay, and the detective chief superintendent, Scott Robertson, who had led the investigation in 2000 and were now retired. For some reason it had never happened, but, with a preliminary hearing on the pleadings in Shirley’s case imminent, Iain became more insistent about this.
Accordingly on 28 August 2003, Shirley’s solicitor (and uncle) Jimmy Cassels went to Perth to meet Mackay and Robertson. He returned with two astonishing and potentially explosive statements.
For a start, it was clear that the scale of the inquiry had been much greater than previously understood. It had needed a big team to take over 300 witness statements and seize nearly 800 documents and 400 productions, for Mackay had treated his job very seriously indeed.
Mr Mackay explained to Jimmy how the SCRO experts had reacted to the inquiry and it was very revealing. Although the four SCRO experts were interviewed, they turned up for each interview with a solicitor and were all interviewed under caution. Their response throughout, almost without exception, was ‘no comment’.
He made it clear that he was not happy about many of the procedures adopted during the SCRO work on Shirley’s fingerprint, and in particular heavily criticised a so-called ‘blind test’ carried out by five other SCRO experts. This test was supposed to be an independent assessment of their colleagues’ work but Mr Mackay believed each expert might have known what conclusion their fellow blind-testers had come to, and also the identity of the others involved – both issues that could invalidate the entire process. Nonetheless, he also revealed that none of the additional experts called in to do this test had been able (nor in some cases, it now appeared, willing) to make a full identification. This vital fact had been completely hidden until now.
Mackay referred in passing to Peter Swann and Malcolm Graham’s confirmations of the SCRO’s identifications: ‘I am aware of course that both of these “identifications” have been thoroughly discredited and challenged by fingerprint experts throughout the world.’ He then went on to reveal that he had interviewed experts from the forensic training school at Durham who had expressed ‘grave doubts’ about the SCRO procedures and ‘serious doubts’ about the independence and integrity of the blind-testing and other comparison procedures by the four experts from the SCRO. According to him, the experts believed that ‘there seemed to be evidence of some manipulation of the evidence . . . and some element also of a collective and cultural collusion which led to the erroneous identification of Shirley McKie as the donor of the mark Y7’.
But there was more. He concluded his nine-page statement with another stunning revelation: ‘It is my view and that of the inquiry team that there was criminality involved in the actings of the SCRO experts and that that criminality first reared its head in February 1997.’ He went on to say that he had been ‘disappointed and rather surprised that no prosecution was initiated against the four “experts” in light of the sufficiency of evidence of criminality involved’ and that Mr Gilchrist had been made aware of his own views about this.
Scott Robertson’s statement corroborated James Mackay’s in every detail and it was obvious that they would both be highly important witnesses for Shirley. Yet the implication of their evidence went even further than that. On reading the material, Iain immediately phoned Michael Russell and they discussed two particular issues.
They now knew that far from there having been a unanimous view within the SCRO that the print was Shirley’s, there were actually officers who disagreed at the time and who said so. The fact had been deliberately concealed and Shirley had been prosecuted. Secondly, it was obvious that the lord advocate must know about all the issues raised by Mr Mackay. As a Scottish minister, however, he was also a defender in Shirley’s action against the SCRO and indeed was the principal legal adviser to the ministers in such a case. He was therefore in a uniquely privileged position of being able to withhold this vital information from Shirley’s legal team. Surely that put him in an untenable position? And surely, in the interests of justice, it could not be allowed to continue?
Iain raised the lord advocate’s compromised position with MSP Fergus Ewing, who pressed for answers. But the lord advocate refused to accept this analysis.
Armed with Robertson and Mackay’s explosive statements, Shirley’s legal team prepared their final arguments for the first stage of the civil hearing. That hearing was due to begin on 9 October and as it approached Iain and Shirley became more and more apprehensive, conscious that it was at this early stage that her action against Strathclyde Police had fallen. If the present action failed too, then the legal route to vindication and compensation would be closed.
One of the issues that had caused much discussion had been the amount that Shirley should sue for. What value can be placed on a ruined career, constant stress, the threat of imprisonment for something one has not done, and the loss of any real enjoyment in life? It was eventually agreed that the sum sought should be set at £750,000, but no one expected that Shirley would eventually get that much – it was to some extent just a shot in the dark, which might focus the minds of the Executive lawyers and make them keen to settle for less.
At about a quarter to ten on the morning of 9 October, Shirley, Iain, Mairi and Nancy, accompanied by Michael and Cathleen Russell, entered the Court of Session situated in Parliament House, which lies behind St Giles Cathedral in Edinburgh’s Royal Mile.
The hearing was in one of the new courts and they all walked there with Andrew Smith, Gordon Dalyell and new team member, Advocate Alastair Duncan. Although no actual evidence was going to be led, Lord Wheatley would be required to listen to several days’ worth of argument from the legal teams and would then have to decide if Shirley had made a case which could be allowed proceed to a full hearing.
The Executive’s junior counsel spoke first. Although her arguments were lengthy, they were straightforward. The Executive was going all out to prove that even if Shirley was able to substantiate her written case and all the facts, she could still not win, for it believed that expert witnesses giving evidence in court enjoy absolute immunity from litigation, as does the material prepared by them in the pro
cess of preparing to give evidence. Consequently, all those whom Shirley was suing were, along with their testimony, out of her reach and always would be.
After this introduction, Andrew Smith laid out Shirley’s case. He sketched in the background and, for the first time, revealed that whilst the four defenders (as the experts were now having to be called in court, for the case was primarily against them) had identified a fingerprint as Shirley’s, five other experts within the SCRO had, for various reasons, failed to confirm their colleague’s conclusions. Crucially, when information on the identification was passed to the police, this disagreement was not disclosed.
Smith argued that while the four experts may have been negligent in initially misidentifying Shirley’s print, their behaviour became malicious when they maintained their position in the face of their colleagues’ refusal to confirm the identification and despite the fact that the differences between the prints were obvious. In addition, the fact that there had been two such misidentifications in the case (the matter of the Marion Ross print in the Asbury trial was included in Andrew’s submissions), and that these conclusions had been maintained throughout repeated checks, was evidence, he believed, that the defenders had been motivated, not by any professional duty of care, but by a determination to preserve the reputation of the SCRO and ensure that the successful prosecution of David Asbury was not compromised.
Mindful of where his case had fallen with Lord Emslie, he emphasised that malice against Shirley was evidenced by the failure of the experts to inform the police or any others involved in the murder inquiry that doubts about the identifications had been voiced within the SCRO. Had these doubts been indicated, he argued, the prosecution would probably not have taken place. The experts were therefore responsible collectively and individually for what had happened to Shirley.
Smith also very pertinently pointed out to Lord Wheatley that the most glaringly omitted part of the Executive’s written case was a failure to either admit or deny that Y7 (the Shirley McKie print) was a misidentification. Without knowing their stance on the matter, their whole case must, he contended, be founded on shifting sand and should therefore be dismissed.
Two days had been set aside for the hearing but it was soon obvious that this was not going to be enough, and an additional day was found in November. During this time the argument continued. Once Andrew had finished it was the turn of the Scottish Executive’s QC, Ray Docherty. He returned to the matter of experts acting in good faith and he also denied that such experts had any duty of care towards Shirley. He also attempted to persuade Lord Wheatley that it would be wrong to allow Mackay and Robertson’s evidence to be included as – according to him – the investigation was confidential and the report was the property of the Crown. It was a cardinal rule, he asserted, that the Crown did not reveal its reasons for deciding not to prosecute. The inclusion of the Mackay and Robertson precognitions broke the confidentiality of the process and would therefore undermine the administration of justice. Accordingly, this testimony should not be allowed.
Docherty mumbled throughout his presentation, head down, almost as if he was ashamed of what he was saying. He should have been, for it was a blatant attempt by the Scottish Executive (in the name of the lord advocate) to eliminate relevant facts, and by so doing, disable Shirley’s case. Shirley found it difficult to understand how it was that taxpayers’ money could be legitimately used for this purpose and her fury increased hour by hour. It reached boiling point when Docherty went on to assert that in any case malice had not been demonstrated by the pleadings – just the point that had ruined her case against the police before. Worryingly, Lord Wheatley seemed very interested in that issue and probed it.
One bright spot in what was a lengthy and frustrating three days was an indication from Wheatley that he was unhappy about the Executive’s stance on the key issue of the fingerprint. Was, he asked Docherty repeatedly, the print Y7 misidentified or not? When no reply was forthcoming he made it clear that he felt that such a statement was critical to the debate. However, Docherty still seemed lost for words.
Finally the hearing drew to a close and Lord Wheatley indicated he would give his decision at a later date, as there was much to be considered. Iain and Shirley felt their usual disgust at what had transpired in a so-called court of law, but Andrew was quite heartened and over coffee on the final day, he told Iain and Shirley that the Executive’s failure to take a stance on the print suggested not only that they were in some difficulty in terms of evidence but that they were not serious about ever coming to court.
Now all that could be done is wait for the judgment – the last chance to take the whole matter to court – or rather the last good chance, because if this failed then the only step left was a Court of Session appeal and then, perhaps, the European Court.
Secretly, or rather, only in conversation with Michael Russell, Iain was more anxious than he was letting on, particularly to Shirley. He had become increasingly concerned about the narrow focus of the pleadings and he and Michael had discussed that matter with John Scott, who had been sympathetic and offered to open doors to other legal advice should it become necessary. If such a narrow case foundered once more on the issue of malice then the experts, he knew, would be able to escape any sanction. Shirley would not survive such a blow, nor would her case. It would need a new legal approach, yet that would be hard to find and the effort needed to continue would be greater than perhaps Iain could manage.
Iain was also aware that the principle of ‘expert immunity’ was a powerful one and that the Executive lawyers had been canny in bringing it forward. Originally invoked to encourage experts to give evidence without fear of legal action afterwards, some English commentators felt things had gone too far and that experts literally could get away with murder. But that might not be the opinion of the Scottish judiciary.
Whilst waiting for Wheatley’s judgment, Iain continued to collect information and talk to people. He had accepted an invitation to speak in Sheffield at the British Association for Human Identification where the delegates included forensic scientists, medics, pathologists, coroners and police. Most were keenly interested in the case. Iain made his usual crop of new contacts that might prove helpful in the future, and he renewed some old friendships too.
As Christmas approached, it looked as though the judgment was going to be delayed until the following year. Then, suddenly, on the very last possible day – 23 December – a meeting was hurriedly convened in Jimmy Cassels’ Glasgow office. Shirley and Iain were ushered into the meeting room, where Andrew Smith stood with a half-smile on his face. ‘Lord Wheatley has agreed the case should go to a hearing,’ he said and there were hugs, handshakes and even some tears.
The following day, Iain and Michael Russell appeared on BBC Radio Scotland’s Good Morning Scotland. The ruling, Iain said, ‘was the best Christmas present’ the family could have been given. He asserted that Shirley was more than willing to face the Scottish Executive in open court because their system didn’t have integrity. ‘They have seen my daughter brought to the edge of suicide . . . not one of them in that place had the guts to stand on their feet and say, look, we got it wrong, we’re sorry.’
Lord Wheatley’s judgment was certainly comprehensive – in fact it was a masterpiece of common sense and clarity. Yet while it helped Shirley greatly and came at a crucial time, it was not without criticism of her case as it had been pled thus far. Over the next few months Iain and Michael would come to see it as a template for what needed to be put in place for the full hearing. If that case conformed to what Lord Wheatley thought would work, then it would have a much better chance of becoming a winning case.
In the judgment, published on the Scottish courts database on Christmas Eve, Lord Wheatley dealt succinctly with the issue of expert immunity, saying that, whilst it was important, immunity could not be ‘available in a prosecution which is based on an abuse of process, even in respect of what is done in preparation for a court case, or for evide
nce arising out of that abuse of process given in court’. He then moved on to malice, and fired a warning shot for Shirley by agreeing with the Executive argument that the standard of proof in a case for malicious prosecution must be a high one, commenting that ‘in the present case it is difficult to understand, from an examination of the pursuer’s averments, what precisely are the relevant statements of malice . . . These various inferences can be drawn from the pursuer’s pleadings as they stand, but only with some difficulty.’
This was to be the pattern for the rest of the judgment – a detailed outline of where the weaknesses were in Shirley’s case, coupled with some suggestions about how those might be overcome and with some damning comments about the Executive’s arguments and particularly the Executive’s stance concerning print Y7. For example, in one part of his written statement Lord Wheatley observed, ‘In the face of a specific claim by the pursuer that the fingerprint found at the murder scene was not hers, supplemented by a number of statements to the effect that the comparisons made by others indicated that the differences were obvious, the defenders have responded with a simple denial. There is nothing else in the pleadings which suggests how the defenders intend to prove that the fingerprint found at the murder scene belonged to the pursuer. Indeed, by suggesting that in making their fingerprint comparison the third to sixth defenders acted in good faith, the defenders could be said to have offered, in one view, an implied acceptance that the latent print did not belong to the pursuer.’
The Price of Innocence Page 14