Just over a month earlier she had finally met with the all-party parliamentary delegation that had been in planning for a long time. It had been meant to take place on 19 May but had been cancelled at the last minute, because Gordon Jackson had forgotten about another pressing appointment. The meeting with the minister was, however, rearranged at remarkably short notice, a sign that the civil servants and/or the minister wanted it to happen. Although just before the meeting the minister had informed those attending that she could not ‘discuss’ the case because it was sub judice, it was made clear that the group could still make representations to her, and that she was keen to hear them. At the meeting she made no commitments, but those present thought that she was positive and got the impression that there was some behind-the-scenes movement taking place. That seemed to be borne out by her attitude towards him now, thought Michael as he made his way into dinner.
Later he was in the bar where he was accosted by an even more senior minister. ‘Don’t worry,’ he was told, ‘we want to be reasonable. Everything is going to turn out fine and you’ve done a great job on it.’
‘On what?’ asked Russell, quite bemused.
‘Oh, wait and see – there will be an announcement,’ said the minister, apparently realising that he had spoken out of turn.
What was about to happen was the first official move towards a settlement. On the afternoon of 30 June 2005, the Executive made it known that it had written to Shirley’s solicitors, indicating its willingness to explore ‘any scope for resolving matters without proceeding to litigation’. Iain gave the news a cautious welcome in his comments to the press but inwardly he was delighted. It would mean avoiding more of the anguish which Shirley had shown after her psychiatric examination in June and which he had detected in himself at that time too. But he knew that there was a considerable gap between what the Executive might offer, both in terms of compensation and an apology, and what Shirley thought – quite rightly – she was due.
Most people could only speculate about the reason for this apparent turnabout, but Iain and Michael felt that it must have something to do with the mysterious MacLeod report which had been delivered to the Executive almost exactly a year before. Could the Executive now finally see that its position was untenable? And if so, what had MacLeod discovered which made it so? That information would be invaluable to Shirley if the case did, in the end, come to trial. Iain and Michael racked their brains for ways of getting hold of the report, especially as their requests to see documents by means of the Freedom of Information legislation were being frustrated.
In mid July, Mairi and Iain flew to Calgary, where Iain was booked to speak at the wonderfully named Ridges ’n’ the Rockies Conference of the Canadian Identification Society. He spoke to a large audience which had a detailed knowledge of Shirley’s case, gleaned from websites and from internal communication amongst experts. The experts there demonstrated overwhelming support for Iain’s argument that the SCRO’s failure to admit its mistakes represented a much greater threat to the profession than did the views of any outside critics.
The Canadians were themselves developing rigorous national standards for fingerprint identification and it was obvious that Shirley’s experiences were an important motivation for ensuring that transparency and accountability were central to such a system. There seemed to be a determination that the cultural, philosophical and methodological weaknesses shown by the SCRO should stand as a warning during this process.
After his talk, Iain was looking forward to some conversations with delegates about the case and a trip to the Rocky Mountains. Instead, within a few hours he was in the emergency room in the Peter Lougheed Centre. He had been feeling slightly unwell before his speech but had put that down to nerves. In fact, he had developed a serious blood infection. Once stabilised he was rushed to Rockyview General Hospital for specialist treatment.
Six days later he was able to leave hospital, a little shaken, but extremely grateful for the skills of the Canadian Health Service. During Iain’s absence the conference organisers, Bruce Saunders, Doug Phillips, and Mary Beeton had looked after Mairi’s every need and expatriate Scot, Bill Sturgeon, and his wonderful mother-in-law Olive had supplied bed and breakfast and a shoulder to lean on.
Meanwhile, back in Scotland, Andrew Smith and the team were still working on case preparations. They were also gathering their facts in support of a fair settlement. In terms of loss of earnings, actual damage and compensation, the schedule prepared for negotiation suggested that her claim might be worth up to £1.2 million, a figure which included added interest given the long delay since she first lodged her claim. Shirley’s view was that she would be guided by Andrew, but that she needed a sum that would allow her to get on with her life – no more and no less.
A meeting was arranged with the Executive legal team and Shirley and Iain travelled through to Edinburgh wondering if at last the saga was drawing to a close.
The negotiations lasted just fifteen minutes. The Executive were offering what Andrew called a ‘derisory’ amount – £328,000, which would only just compensate her for loss of earnings to date and took no account of future needs. Worse still, the Executive lawyers appeared to have no genuine interest in entering into further negotiations. Shirley’s rising hopes were dashed once again with Andrew advising that preparing for the case was the best option now, and that they should make no more overtures. ‘Let the Executive come to us,’ he said.
This risky strategy was based on growing proof that the Executive had much to gain from a settlement. The McKie problems were seeping into every area of Scottish justice and tainting its reputation as well as the ability of the Executive to push through policies like the police retention of DNA and other proposals relying on public trust in the justice system.
That malaise was becoming critical for the SCRO. How were the fingerprint experts to continue functioning while sustaining the fiction that no errors or wrongdoing had taken place? Confirmation of that dilemma came on Sunday 20 November 2005 when Liam McDougall, writing for the Sunday Herald, revealed just how far the SCRO management was willing to go to save face.
He had obtained a copy of a secret internal report circulated throughout the Scottish Fingerprint Service in which its head, Euan Innes, stated that it was perfectly legitimate for two experts to disagree about a fingerprint identity. In so doing – as many experts quickly pointed out – he was denigrating the whole science of fingerprinting. The essence of fingerprinting as a forensic science had long been based on the principle that, providing a fingerprint was of sufficient quality and quantity, its donor could be identified positively. Throughout the world, procedures were in place to resolve such differences of opinion between experts, but not, apparently, at the SCRO. There the difference would just be allowed to fester, to the confusion of the courts and the dismay of informed observers.
McDougall quoted David Grieve, from Southern Illinois Forensic Science Centre, and an expert witness at Shirley’s trial, as saying, ‘They’re opening a Pandora’s box by presenting that argument.’
However, the reporter had also obtained a copy of a secret response to the Innes paper in which expert Joanne Tierney, the head of training for the Scottish Fingerprint Service, directly contradicted her non-expert boss. She contended, clearly in an effort to stop the rot within her own organisation, that if Innes’s argument was accepted, then ‘the identification- and presentation-of-evidence process becomes reduced to the ability of an expert to persuade or convince others that they are right, and it becomes inconsequential if anyone disagrees’.
This was the first sign of significant internal dissension within the SCRO, challenging at last its culture of cover-up and bullying. The growing crisis within the SCRO was also producing strange outpourings which were making their way into the public domain. In early December 2005 an informant sent Iain an extraordinary letter which was being circulated by the MSP for Eastwood, Ken Macintosh and his Labour colleague Des McNulty to other MSPs wi
thin the Scottish parliament. This arrived along with a statement which said, amongst other things, ‘These four officers who are constituents of mine and of Des McNulty MSP have had their reputations blackened and their names dragged through the papers over the last six years without ever being able to speak up in public in their own defence or to correct the endless stream of misinformation and inaccuracy surrounding this case.’
The letter itself had been signed by fifty-two SCRO experts and other civilian staff within the SCRO and sent to the lord president and lord justice general, Lord Cullen of Whitekirk at the Court of Session. Dated 14 November, it opened with an obstinate statement from the four experts at the centre of the controversy, confirming their unbending stance: ‘Since the preparation of the evidence we have not seen any material that would cause us to review our findings and alter our opinion.’ They then went on to criticise almost everyone they believed was conspiring against them to have the truth covered up, including the lord advocate and the Scottish Executive. As would be expected, they accepted absolutely no responsibility for their own plight.
Shirley and Iain came in for special attention of course, and the letter repeated the allegations of lying and perjury against them which had already been pursued unsuccessfully by David Russell and which would be dragged up again at the parliamentary inquiry. All the experts who had opposed them were also rubbished, as were the internet reproductions of the original images prepared by Pat Wertheim and already used by their own colleagues. They emphasised that when their past work had been checked it was found to be a hundred per cent correct and they repeated the fiction that the Black report had cleared them of any wrongdoing. No mention was made of findings from the Mackay report, nor from the MacLeod report, about which they may well have known at that time.
The letter concluded with an astonishing piece of gall. The experts were ‘concerned that the use of expert fingerprint evidence, not only in Scotland but throughout the world’ had been damaged because of ‘the McKies’ false statements and malicious allegations’. This amazed Iain. It was unbelievable, he thought, that those who had completely escaped responsibility for their catastrophic errors were now trying to put all the blame onto Shirley and himself.
Even though it had not been signed by a number of important experts in the Glasgow bureau, the document suggested a powerful culture, in which non-expert administrative staff members were also entangled.
In addition, it pointed to some very poor advice from whoever was supporting the group, for Lord Cullen had absolutely no locus in the matter, and would have no involvement in any decision on a settlement. It seemed that whoever had suggested him had little knowledge of Scots law or Scots political and legal structures. Its rambling content, its length and its scatter-gun approach were also likely to be counter-productive, and indeed precluded it gaining virtually any publicity. It did, however, confirm that the management of the SCRO in Glasgow had completely lost control of the majority of staff there.
Iain tried not to be distracted by this attack and he shared virtually nothing of it with Shirley. He was now deeply preoccupied with the last stages of a massive document review in connection with the civil hearing, which was now barely two months away. Just before Christmas he presented to Andrew Smith a list of twenty-six ‘actions’ which he thought could be construed as malice from the experts. He also noted the importance of the SCRO claim that the fingerprint evidence was merely ‘evidence of opinion’ rather than ‘evidence of fact’. Originally in 1997 the experts had contended that their identifications were ‘evidence of fact’, not ‘opinion’. Only under pressure did they change their view and redefine their identifications as ‘evidence of opinion’, by extension arguing that it was possible for different experts to come to different conclusions and both be right. The problem was that this could mean that all previous cases which hinged on ‘fact’ would need to be reassessed in the light of fingerprint evidence being only ‘opinion’. Was that a tenable position for Scottish justice?
Another worry was that in most cases documentary evidence was vital in order to prove malice of the SCRO experts and the efforts of the lord advocate and the Executive to block Shirley’s access to such evidence had been very successful. Court hearings held to force the SCRO to release documentation had failed and Andrew had not yet secured copies of the SCRO standing orders and procedures for identification, which were essential if Shirley was to prove malice by showing repeated and wilful failure to follow such regulations. Despite promises, the legal team became increasingly frustrated at these deliberate obstructions by public bodies which were designed to protect the Executive’s own case. And whilst Iain had obtained hundreds of documents under the Freedom of Information legislation, over 1,200 had been withheld despite appeal. Amongst those items were the very significant Mackay and MacLeod reports.
Three days after Iain gave Andrew his papers, the Scottish ministers upped their settlement offer to £500,000. This was meant to put further pressure on Shirley to settle, because if, after a civil hearing, the court awarded a lower figure, not only would she lose the difference between the awarded amount and the £500,000, but she would also have to pay massive legal expenses.
But Andrew Smith QC advised against taking it and Shirley accepted that advice. On the same day Andrew sent the valuation of £1.2 million to the Executive lawyers, and indicated that he would be prepared to settle for £1.1 million.
In a confidential discussion with Iain, Michael Russell told him he was of the opinion that the offers from the Executive were now getting very close to a figure for which Shirley should settle. Iain knew, however, that she was set against accepting anything less than the original sum she had asked for – £750,000. She also wanted a complete apology and some action that would indicate that the SCRO officers were culpable. Privately, Michael did not believe that the last condition was likely to be met. Both were well aware that in any negotiations the odds were stacked very much in favour of the Executive and that they were not to be trusted.
Now, nine years after the murder, it was almost time for the final court hearing that would determine where the truth lay and what recompense if any Shirley should receive for her extraordinary, disturbing and deeply distressing experiences over that time. But there was one further obstacle to overcome which, as seemed so often to be the case, briefly raised and then dashed their hopes.
In January 2006, the Sunday Herald journalist Liam McDougall obtained a copy of a previously secret report prepared by the two Danish experts in August 2000 showing that the Marion Ross identification was wrong. This was the report that had led to the release of David Asbury from prison. Under the headline ‘Secret report prompts claims of “massive cover-up in McKie fingerprints case” ’, he claimed that the Danish report revealed that the SCRO experts had not only made an mistake in the Marion Ross identification but also erred in identifying David Asbury’s fingerprint on a £10 note found in his house. ‘This finding,’ he wrote, ‘throws into serious doubt the contention by the SCRO that no misidentifications were made by experts . . . The evidence now also raises serious questions about why the report, which has been known to Scottish ministers, the Crown Office and the SCRO since 2000, was never made public.’
McDougall’s article had major implications, particularly as Shirley’s civil hearing was approaching and evidence of yet another mistake would further boost her prospects, as would any suspicion of an Executive attempt to hide relevant facts. In addition, there were political calls for the fingerprint unit to be closed down and these seemed to have wider support than usual. Recognising the threat to their position, the Scottish Executive response was unusually swift and they commissioned English fingerprint expert Michael Pass to examine the banknote.
But, as ever, things were not as simple as they seemed. A few days before the Pass Report was delivered, unaware of its preparation, Andrew Smith and Gordon Dalyell travelled to the Netherlands to interview Arie Zeelenberg and a fellow expert Herman Bergman in conne
ction with the impending civil action. As part of the interview, they showed the experts photographs of the alleged identification of Marion Ross’s print on the tin. They both agreed it was erroneous. Smith then produced a photograph of the identification on the £10 note written about in the Sunday Herald article, assuming that yet another SCRO mistake would be confirmed. But to his surprise the Dutch experts disagreed with their Danish colleagues and agreed with the SCRO. They thought it was a good identification.
As was to be expected, Arie Zeelenberg’s telephone call to Denmark the next day was received with incredulity. However, far from denying anything and attempting a stonewall and then a cover up – as the SCRO had done since 1997 – the experts immediately set in motion a system of established checks which would ascertain just what had gone wrong.
The inquiry revealed that on their visit to Scotland the Danish team had, through no fault of their own, been given the wrong photographs to look at. When shown the correct photographs of David Asbury’s print taken from the £10 note they were quickly able to verify the SCRO’s identification. They reported these new findings to the Crown Office on 1 February 2006 and in his report, privately submitted to the office of the solicitor to the Scottish Executive at the same time, Mr Pass agreed with the new findings. The SCRO identification of David Asbury’s fingerprint on the £10 note was correct.
Effectively this whole issue was a storm in a teacup. The Danish experts had been given the wrong photographs to look at, David Asbury’s fingerprint had been found on a note that belonged to him anyway and, crucially, further confirmation had been presented that the SCRO experts were wrong in identifying Marion Ross’s print on the tin.
The SCRO experts and their supporters like Peter Swann, however, hailed the Pass report with as much enthusiasm as they had the Black report, claiming it was a complete vindication for them and a complete defeat for any and all of their critics. The truth did not appear to matter and they and MSPs Macintosh and McNulty furiously peddled this nonsense to anyone who would listen. At such a crucial stage the incident did little to settle the nerves of Shirley’s legal team and her supporters, let alone Shirley and Iain.
The Price of Innocence Page 17