The Price of Innocence

by Michael Russell

  On 11 November 2004, Shirley, Iain and Mairi joined Scotland’s great and good at Prestonfield House Hotel for the Scottish Politician of the Year ceremony. The campaigner award deservedly went to a young couple, David and Ozlem Grimason, whose son Alistair was killed in 2003 as he slept in his pram in a Turkish café. In the wake of their son’s death they had collected a petition of 150,000 signatures in a bid to change Turkish gun law and they had presented their case to the country’s prime minister. Everyone thought they were inspirational, given what they had suffered, and Iain and Shirley were full of admiration for them. However, even they noticed that when Jack McConnell visited the nominees’ table he publicly congratulated everyone except Iain and Shirley. When Iain later wrote to him asking about this petty behaviour, the first minister replied that he had not seen them!

  Iain and Shirley and Mairi left the hotel late in the evening, before perhaps the most memorable part of the event – the bizarre attempt by the former minister for tourism, culture and sport, Lord Watson of Invergowrie, to set fire to a set of curtains in the hotel, an escapade that was later to cost him his seat and sixteen months in jail.

  As 2004 gave way to 2005, Iain was saddened to hear from Alan McNamara that his appeal against conviction had been rejected. Now all that was left was an application to the Criminal Cases Review Commission that could take years to be considered. Meanwhile, as the eighth anniversary of the murder passed, Iain was already preparing requests under the new Freedom of Information Act that had come into effect at the beginning of the year. He was hoping to use it to lever much new information out of the Executive, the SCRO and Strathclyde Police. But as his reading continued to range far and wide he was increasingly struck by the fact that problems with fingerprinting were not unique to Scotland and England.

  In the USA, controversy had been raging for months following the unjustified arrest of a Muslim lawyer suspected of complicity in the Madrid train bombings on 11 March 2004. His fingerprint had allegedly been found by FBI experts on a plastic bag, but whilst that was soon proved not to be the case, the whole matter was so complex and its implications so far-ranging that months later it was still getting American headlines. As Iain read about it, he was struck by the similarities with Shirley’s case.

  An independent international panel of experts concluded, as reported in the Chicago Tribune on 14 November 2004, ‘that human error, defensiveness and a failure to follow some fundamental scientific practices, such as proper peer review, led to four of the nation’s top fingerprint experts wrongly tying Brandon Mayfield, a Portland-area lawyer and a Muslim, to the bombings.’

  The website OregonLive.com pointed out that the FBI had identified one of the major reasons where the initial problem had arisen: ‘Once the first examiner – who according to the report was a “highly respected supervisor with many years’ experience” – made up his mind, the next two analysts did not dare challenge him, the panel concluded.’

  According to The New York Times this was all attributable to failings in the culture of the FBI which ‘discouraged fingerprint examiners from disagreeing with their superiors’.

  All this was chillingly familiar, and paralleled what seemed to have happened within the SCRO, but with one vital difference. The American experts and their managers had put their hands up and admitted the mistake and within four months an international panel of experts had investigated the issues and made their recommendations. The major changes were immediately effected by the FBI fingerprint lab. Later, in November 2006, Mayfield reached a settlement with the US government, agreeing to $2.2 million compensation and a comprehensive apology. The whole process took two and a half years, not the nine years it would take Shirley – and she would receive no apology at the end.

  12

  ‘We want to be reasonable’

  Day 3,094

  In February 2005 Shirley’s lawyers went to court again to try and obtain an order that would force certain SCRO personnel to provide statements before the civil hearing, which had now been put back to the following year. Remarkably – particularly in light of the attitude prevailing across the Atlantic in terms of sorting out difficulties in the fingerprint service – the Scottish Executive decided to oppose the application. Even more remarkably, the court refused the request, ignoring Andrew Smith’s plea that if he did not know the evidence the experts were going to lead and have an opportunity to check on its veracity, then his ability to challenge it in court was going to be badly compromised.

  More positively, however, the Executive had now abandoned its appeal against the Wheatley judgment, although it gave no reason for so doing. This, coupled with hints that a settlement might be possible, gave hope that there was perhaps a gradual change of heart. But why?

  In the spring of 2005 Iain was beginning to get material in response to his first Freedom of Information requests, and was soon snowed under by paper. Michael went down to Ayr to help him sift through it, and during one visit, browsing through lists showing the 1,200 documents the Scottish Executive had refused to hand over, he came across a series of references to a report by a Mr MacLeod. The lists also contained other references to this report and it soon became apparent that this was a document of great importance. When it was delivered to the Executive civil servants and lawyers in late June 2004, it produced a flurry of activity. For the first time, the word ‘settlement’ started to appear in official papers and assessments began to be made on Shirley’s career and salary expectations had she not been forced out of the police.

  Who was this MacLeod? A quick call to Allan Bayle provided some information – he was a well-respected independent expert working in London. Allan contacted him then rang Michael and Iain to give them the intriguing information that John MacLeod had indeed been commissioned by the Executive to undertake work in connection with the McKie case. However, he had signed a confidentiality agreement and could say nothing about it.

  This report was clearly central to what was now taking place and Iain was desperate to get hold of a copy. As soon as he could, he asked for a review of the decision to withhold it and when that review upheld the original decision, he appealed to the information commissioner, making it clear how vital the report might be to his daughter’s defence. However, by the time of the court hearing the commissioner had still not made a determination. Apparently his staff had been involved in lengthy and time-wasting discussions with the Scottish Executive who were determined that no further information would be released.

  In March 2005 Iain was on his travels again, speaking at the Socio-Legal Studies Association conference at Liverpool University. One of the conference themes was miscarriages of justice and with Alan McNamara in the audience, Iain did not miss the opportunity to highlight McNamara’s dreadful experiences as an example of what can happen when experts get it wrong but fail to admit their mistakes.

  These conferences were time-consuming but they always produced new contacts and sometimes – months or years later – those connections became important. Iain’s brief conversation in Cardiff in March 2002 with experts from the Grampian fingerprint bureau had faded from his memory, particularly as he had long since given up on the possibility of Scottish experts coming forward with new information. However, the Grampian experts had not given up on finding some way to tell the truth. Over the intervening two years, Gary Dempster, John McGregor and John Dingwall had continued to follow the case carefully, but, aware of the possible danger of speaking out, they had never commented publicly.

  On 10 May 2005, Euan Innes, the current head of the Scottish Fingerprint Service visited the Aberdeen bureau. The three Grampian experts took the opportunity to quiz him about the McKie print. Innes was adamant that they could not be allowed to view the original SCRO identifications, but he was at pains to assure them that the officers who had worked on the case were right. Before he left, Innes handed them a copy of a letter he was circulating to all Scottish bureaus. It had been sent to the lord advocate by Peter Swann’s lawyer, David
Russell, about a fortnight before and Innes claimed it laid out facts of which they should be aware.

  Like many others they were shocked by what they read. The letter stated that MSP Alasdair Morgan had ‘crawled out from under his stone’ to ask a question in parliament and referred to a speech by the lord advocate as ‘spineless . . . pandering to the McKies and currying favour with the media in Scotland’. Foreign fingerprint experts who supported Shirley were described as people who ‘would not be offered employment, even to clean the toilets at the SCRO’.

  Michael Russell was not spared from David Russell’s wrath, although the reference to him as one of the McKies’ ‘tame MSPs’ was a bit out of date. The lawyer went on to make repeated assertions about Shirley and Iain’s lack of honesty and integrity, accusing Shirley of perjury and of trying to cover up Peter Swann’s existence.

  It bristled with annoyance, particularly directed at the complaints Iain had pursued against Swann with the Fingerprint Society and the newly formed Council for the Registration of Forensic Practitioners (CRFP), which had been created to raise forensic standards. David Russell was also less than amused when Iain complained to the Law Society in England about abusive remarks the lawyer had posted on the internet. The letter ended with the ultimate nonsense: ‘I am not prepared to accommodate what is clearly some form of alliance between the Crown Office and the McKies.’

  While David Russell appeared at first as a redoubtable advocate for his clients, his increasingly desperate pleas to anyone who would listen became known as ‘Russell rants’.

  The Grampian experts found it unbelievable that such a document was being officially distributed within the SCRO and that it had been given to them by the head of their own service. It was clearly an attempt to dragoon support for the four officers and demonise anyone who disagreed. They felt that they had to respond, but they were still unsure how to do so.

  Just before the visit of Euan Innes, Gary Dempster had discovered, in a retired expert’s desk which was being cleared, two photographs of fingerprints which appeared similar to the McKie photographs on the American fingerprint websites, and which had apparently come from an English force some years previously. That force had allegedly received them from the SCRO in an attempt to bolster support. Gary discussed these with his two colleagues. They agreed that these might give the opportunity for a comparison to be made, providing the pictures were authentic, and providing Iain McKie agreed to them undertaking the work, because his authority would give them a legitimate reason for proceeding.

  Gary scanned the pictures and sent them to Pat Wertheim by email. He received an instant response: ‘I am fascinated by the images you sent because they are indeed the original crime-scene mark from the bathroom door frame in Marion Ross’s house, directly above where her body was found, and an inked left thumbprint of Shirley McKie.’ To further assist Gary’s work Pat included with his reply scans of the inked impression which he had taken from Shirley’s left thumb in early 1999.

  Now they approached Iain, who also replied quickly, to the effect that while he was aware of the legal position regarding the retention of fingerprints, and was surprised that they had these photographs, he was happy for comparisons to be carried out, given that Pat Wertheim had validated the prints. This was the first time that Scottish experts had made an offer to openly make a comparison, so Iain saw this as an important step.

  When Iain got the report he was thrilled. This was the breakthrough he had been dreaming about for years. There it was, in black and white, from three Scottish experts who, along with the SCRO, were part of the Scottish Fingerprint Service. ‘We all independently concluded,’ it said, ‘that the scene-of-crime mark was not made by the finger which appeared on the photograph. There are a significant number of ridge characteristics which do not appear in coincident sequence. We are satisfied beyond any reasonable doubt that the mark disclosed on the crime scene photograph was not made by the left thumb of Shirley McKie.’ Moreover, copies of the report were being sent to their chief constable in Aberdeen, to the Scottish Fingerprint Service bosses, and to the lord advocate. The Grampian experts explained in the covering letter precisely how they felt: ‘We have been faced with a huge personal dilemma as a result of our findings, but we do realise we are unable to remain silent on what is matter of extreme importance to the future of our profession in Scotland, and indeed to the future of the fingerprint service worldwide . . .We believe integrity and openness is absolutely paramount to the future of any Scottish Fingerprint Service.’ All three experts realised that there might be a price to be paid for speaking out, but they were willing to stand by their conclusions.

  On 28 June, Iain went public with the report, holding a media briefing in the Scottish parliament. There were four MSPs present – Alex Neil, Fergus Ewing and Alasdair Morgan who were long-term supporters but also, for the first time, the former junior minister and Clydebank and Milngavie MSP Des McNulty. Later it was to be revealed that he had been contacted by some of the SCRO experts who had made the misidentification and that he was now acting as their parliamentary champion.

  The press release outlined the Grampian experts’ findings, and that they were calling for an independent inquiry into the case, to be undertaken by experts from outside the UK. Only when the results of this inquiry were known and accepted, they argued, could the Scottish Fingerprint Service move on, and live up to its mission-statement aim to be a ‘world-class supplier of fingerprint identification and verification service’. The three also criticised Euan Innes for distributing the ‘wildly inaccurate’ and ‘grossly critical’ letter to the staff at the SCRO.

  Television, radio and newspaper coverage of this breakthrough was extensive and Iain was interviewed once again on Newsnight Scotland. Yet the SCRO’s statement simply reiterated that the organisation had been found to be ‘both efficient and effective’ by the police inspectorate. There was no time taken for reflection, no indication of doubts, no offer of a further examination, rather just the usual knee-jerk reaction asserting that they were right – and by extension, of course, that meant that the rest of the world, including their own colleagues in Aberdeen, were wrong.

  The reaction from the expert community throughout the world was very different from that of the SCRO, and UK and non-UK experts sent Iain, Shirley and the Grampian experts emails of support and encouragement, many affirming that they were certain of the expertise of the Grampian experts and applauded their courage in coming forward.

  As the fuss died down, Iain wrote to Colin McKerracher, the chief constable of Grampian Police and ex-Strathclyde Police high-flier, who had allegedly said that as far as he was concerned, Shirley had been in the house. Iain asked him to formally commend the Grampian experts for ‘their courageous and public-spirited action’ and further asked that he pass on the McKie family’s sincere thanks to the three men, ensuring that they receive a copy of the letter.

  The chief constable’s brief reply – ‘I refer to your letter of 2 July 2005 regarding the above and note the comments contained therein’ – showed that yet another chief constable had failed to provide the leadership required to bring about much-needed change. In addition, in refusing to commend the three, he had neglected the advice of his own Professional Standards policy which stated, ‘the force has a responsibility to ensure that staff feel able to report concerns about colleagues or the organisation in a confidential and supportive environment’. In fact, just the opposite was going on, with ways being examined, Iain was told privately, of disciplining the three experts.

  While Shirley was very pleased by the Grampian report, a psychological assessment required by the Scottish Executive in June set her back again. Iain had come with Shirley to the BUPA Hospital at Murrayfield in Edinburgh and the consultant psychiatrist spoke separately to the two of them. As Iain’s session progressed, his anger increased, for it seemed as if what was being attempted, on behalf of the Executive, was a reversal of the truth. What the psychiatrist seemed to want was to prov
e that none of Shirley’s trauma had resulted from the years of deceit and delay, but that its sole cause was the nature of her arrest. This, of course, would put the blame back onto the police, and as the case against them had failed, Shirley would be left betwixt and between once more. At breaking point, and scared he might lash out, Iain sought refuge in a side room.

  He had started to calm down when, about an hour later, Shirley joined him. She was shaking and there were tears streaming down her face. She had been forced to recount her feelings during her arrest and trial and as the interview proceeded she had increasingly come to believe that the intention was not to provide an objective assessment but to find a way of letting the Executive win. Indeed, she said, so powerful had been that feeling that she had begun to have flashbacks of Dr McLay’s visit to her the day before she was arrested.

  Shirley had had enough of these charades. All this could not go on much longer if she and her father were to retain their sanity, and that thought made their car journey back to Ayrshire silent and sombre. Something was going to have to give.

  It was about to. The day after the press conference, Michael was back in Edinburgh for the annual dinner of the Parliamentary Journalists Association, in his capacity as columnist for Holyrood Magazine and as someone who wrote about the parliament from time to time.

  Before the meal, he bumped into the justice minister, Cathy Jamieson. Even without the McKie case, their relationship had not been warm, but on this occasion she was very friendly and asked after Iain and Shirley as well, which surprised him.