The Price of Innocence

by Michael Russell

  But Mr McNulty was not finished. Despite the fact he was not a full member of the committee he had already dominated almost half of the session. Ignoring the real issues, he continued with his attempt to blacken Shirley’s character, finishing his questions with a flourish. ‘Why should Peter Swann and Malcolm Graham lie? On what basis would they lie?’

  Shirley provided the answer. ‘Because Peter Swann’s reputation is in tatters, that is why.’

  Later in the session, Eastwood Labour MSP Kenneth Macintosh, who was also representing some of the experts who lived in his constituency, opened softly, offering Shirley assurances that she was not on trial. He followed by asking her a series of seemingly innocuous questions. When he returned to the insinuations that Shirley had somehow misled the court about Peter Swann’s existence, Iain challenged him to stop attempting to retry Shirley. Eventually she interjected. ‘Time and again, I have stood up to be counted. I have told the truth. I understand that you have people to represent and that they are in a difficult situation but, in all honesty, what else do you want me to do? What else do you want me to say?’

  Despite the convener’s intervention the angry exchange continued until eventually the convener stepped in and brought the MSP’s questioning to a close.

  The session ended with some examination of possible changes in the SCRO, with Scottish Nationalist Stewart Stevenson asking the three witnesses to cite any ‘identifiable improvements’ at the SCRO. Iain responded and then, just as he thought it was all over, McNulty returned to the fray, again targeting Andrew Smith by reminding him that the disciplinary hearing and the procurator fiscal’s inquiry had both determined that the four SCRO staff had no case to answer. ‘If the process has been tested and the people have been thoroughly investigated,’ McNulty asked, ‘do you think that it is reasonable for you and your clients to continue to make allegations of dishonesty, corruption and perjury against them, without evidence?’ But Andrew Smith rounded on him, replying that he had not made allegations about those people. ‘Quite frankly, I resent the suggestion that I have. If you are not prepared to tell me when I am supposed to have made such allegations, I am certainly not going to try to answer a question that has not been asked properly.’

  After a short closing statement from Iain the ordeal was finally over. Shirley was totally drained but also very angry. Despite assurances to the contrary she had been put on trial by some of the members. All she wanted now was to escape from the committee room and hide from her tormentors. ‘When is this ever going to end?’ she asked Iain.

  But she also knew that she had presented herself well and honestly. Iain went out to face the reporters and the TV cameras and from their questions he was sure that the McNulty and Macintosh questions would be high on the media agenda. Indeed that was the case.

  The following morning, the Scotsman reported, ‘McKie in angry clashes with MSPs over print questions’. Once again truth and lies had been allowed to have equal prominence in the committee room. The inquiry remit had been forgotten as members were allowed to engage in a welter of point-scoring accusations. Unfortunately the committee – as was to become ever clearer – seemed either powerless or unwilling to address their remit and instead of achieving clarity about the issues examined, they were left with growing confusion.

  The next evidence session was given over to Hugh Ferry, a past head of the SCRO. In what was to become an increasingly frustrating session, Stewart Stevenson tried to ascertain whether there had been any written procedures within the SCRO fingerprint unit in 1997. The response that it was unlikely that any such documents still existed clearly frustrated Mr Stevenson, but Mr Ferry was less than contrite: ‘All I can tell you, Mr Stevenson, is that you and I are obviously of different managerial breeds. I was there principally to be responsible for the strategic running of the organisation. I trusted my heads of section to implement. I did not have the time to sit and look at every piece of paper that came across my desk or their desks.’

  The convener tried to make sense of this, but to no avail. ‘Was that procedure written down at the time?’

  ‘I am not aware of that, no.’

  ‘But it might have been.’

  ‘Yes, it could have been.’

  ‘Would you expect it to have been?’

  ‘Yes, I would have thought so.’

  When Tory Margaret Mitchell pursued the issue of how often identification disputes arose during his spell at the SCRO, Mr Ferry had to admit that he had ‘no idea’. He continued, ‘I do not believe that there is any point in having a dog and barking yourself.’

  Yet this hands-off approach immediately became very much hands-on when he related how he became deeply involved after Shirley denied the print was hers, asking three more experts to check the identification. ‘They said that there was definitely no mistake and that it was her fingerprint.’

  Although Shirley had left with her brother Stuart, Iain and Mairi had remained to watch Ferry giving evidence, and as he listened to an increasingly bizarre session unfold he was reminded of correspondence he had received in 2000 from an informant he believed worked within the SCRO. Describing the atmosphere within the organisation during Ferry’s time, the first letter had outlined the culture of ‘bullying and harassment’; the ‘sit down, shut up and don’t argue’ approach to suppressing internal criticism from staff; ‘aggressive and threatening management techniques’; the humiliation of staff for ‘the most minor mistakes’; ‘incredibly high stress levels’ and ‘staff leaving never to return’.

  A further letter made other points: ‘identifications with say twelve or thirteen characteristics were simply made up to sixteen in the full knowledge that it would never be challenged’; ‘the place was run by an alcoholic tyrant who . . . would terrorize staff with drunken outbursts’; ‘around twenty experts were taken into a private office and invited to look at the fingerprint which was erroneously identified as Shirley’s – their findings have never been made known’.

  In addition, further doubts about the SCRO management had been voiced in August 2001 by a named expert who had originally been employed at the SCRO. He had written to the justice minister, Jim Wallace, and the lord advocate, Colin Boyd, commenting:

  After commencing duty at the SCRO bureau I was shocked and appalled at the level of malpractice. It became evident that the bureau was not following the National Fingerprint Standard. After raising my concerns . . . a senior police officer suggested that I would be in breach of the Official Secrets Act if I communicated my concerns to external fingerprint bureaus . . . In April 2000 I had reason to challenge an identification decision made by other SCRO experts . . . there was an attempt to exclude my findings from the process. During my period of employment at the SCRO bureau I consistently challenged mismanagement and malpractice. I soon became the victim of bullying, intimidation, harassment and victimisation.

  William Gilchrist, now deputy crown agent, who originally recommended ‘no proceedings’ against the SCRO experts following the Mackay report, replied that the issues addressed in the letter were not appropriate for comment by the lord advocate, and that they would be ‘more properly addressed to the Justice Department of the Scottish Executive’. A reply on behalf of Jim Wallace said that he had noted the serious issues raised and had asked his department to look into them. But nothing more seemed to happen.

  Whether or not these various allegations had been true, Mr Ferry’s testimony to the committee seemed to reveal a very out-of-touch management with little real control over what went on.

  The next evidence session on 30 May was devoted to the testimony of the four SCRO experts who had made the misidentification. Although they were consistent in their testimony that they stood by their identifications, the enormous significance of this session – largely missed by the MSPs – lay in the opening testimony from Hugh Macpherson. He took the inquiry back to the weeks immediately following Marion Ross’s brutal killing and revealed himself as the expert who initially identified Shirley’
s fingerprint, known by the reference Y7, when checking if any of the fingerprints found at the murder scene had been legitimately or accidentally left there by people other than the murderer.

  As previously discussed, this process, known as ‘elimination’, is necessary to quickly identify and disregard the fingerprints of people like the victim, friends and family, any workers and of course murder squad officers who might have unknowingly left their fingerprints at the scene of crime. In this way, the criminal’s prints can hopefully be isolated.

  While prints being presented as evidence in court are required to reach what is known as the national ‘sixteen-point standard’ (where there are at least sixteen points of similarity between a fingerprint of the accused and a print found at the crime scene) they can be identified for the purpose of elimination to a much lower standard of perhaps only a few points. It is also quite normal to have only one other expert confirm this.

  However, Mr Macpherson testified that on 11 February 1997, after identifying Y7, contrary to normal practice, he set about having his elimination identification independently confirmed by three colleagues to the national standard of sixteen points.

  The first person he asked was his junior colleague Alistair Geddes. Mr Geddes was happy it was an elimination, finding a total of ten points in agreement. But he could not reach the national standard of sixteen points that Macpherson had requested.

  Macpherson then testified that that same day, 11 February, he moved on to three other experts to get the sixteen-point confirmation he wanted before phoning the murder squad to tell them that he had found Shirley’s print.

  ‘Mr Stewart, Ms McBride and Mr McKenna checked the identification before it was telephoned to the incident room, which I believe was in Kilmarnock. DI McAllister telephoned me back and asked whether I was definite about the identification. I said, “Yes. It has been signed up by four experts, including me.” He said to leave the matter with him, as he felt that there might be some difficulty.’

  When the convener asked whether he knew the identification or elimination had significance at that stage, he replied, ‘No. All I knew was that it was a police officer’s mark. However, police officers are regularly identified at crime scenes – that is not unusual.’

  In her evidence, Fiona McBride confirmed this when responding to Pauline McNeill who said, ‘The four of you have identified Shirley McKie’s fingerprint, but at that point it is an elimination print – all that you are doing is eliminating a police officer who, as far as you are concerned, was legitimately at the locus.’

  McBride replied, ‘Absolutely.’

  In his testimony, Macpherson also asserted that the identification had not been significant and that he had only spoken to the murder team for the first time on 11 February after having his identification confirmed by his four colleagues.

  However, the written evidence of expert Alistair Geddes, submitted in April 2006, revealed a rather different picture, a fact that none of the MSPs picked up on. Geddes had confirmed that Macpherson asked him to verify his identification of Shirley’s print:

  Mr Macpherson asked if I had managed to achieve the national standard of sixteen points in sequence and agreement when eliminating Y7. I told him that I had not but that I had found sufficient volume in sequence and agreement to confidently identify and therefore eliminate Y7. However Mr Macpherson informed me that he felt that it would be better if I could eliminate on sixteen points in sequence and agreement. I requested an explanation, as the national standard was not applied to eliminations. Mr Macpherson explained his reasoning:

  1. The print was found on an apparent second visit.

  2. The print was found on a door frame near where the deceased was found.

  3. The investigating officers were excited at its potential.

  4. The donor transpires to be a serving police officer who at the very least will receive a reprimand from the OIC of the case.

  From the information Geddes says was imparted, it could be deduced that when he spoke to his colleague, Macpherson already believed the print to be very significant, and had spoken to someone else about it. But this appears to contradict Macpherson’s evidence that when he discussed the print with Geddes and the other three experts, he had not yet made contact with the police and was unaware that there was anything ‘significant’ about the identification. Where, then, could he have got that other information which Geddes claimed he had told him?

  One theory, of course, is that contrary to his evidence to the parliamentary inquiry, when Macpherson initially identified the print as Shirley’s, he may have immediately phoned this ‘elimination’ through to the police before consulting anyone. When the police came back to him a short time later and told him just how important this identification was and also that Shirley was denying that she had been in the house, it would have been good practice to get this very ‘significant’ identification confirmed, and quickly.

  This theory that Macpherson knew of its significance also makes sense of his unusual decision to demand that four of his colleagues identify the mark to the full ‘sixteen-point standard’, when it was usual within the SCRO for prints to be eliminated to a much lower standard by one or two experts only. Even Geddes admits that he felt he had done enough to eliminate the print when Macpherson asked him for a sixteen-point analysis.

  To explain this action, and the involvement of the other three experts, Macpherson, later in his evidence, changed tack considerably, arguing, ‘Because of the position of the mark, I felt that I should apply the sixteen-point standard to it. The other impressions – XF and QI2 – had all been signed up to the sixteen-point standard by four experts.’

  This comparison is important. Far from it being an insignificant elimination print, as he claimed, he was now comparing it to print XF, allegedly that of David Asbury found in the murder house, and QI2, allegedly that of Marion Ross found on the tin full of money recovered from Asbury’s house. Why was he giving it the same amount of importance as that applied to prints which were crucial to a murder investigation?

  If, as now seems possible, Macpherson knew of the significance of the print before approaching any of his colleagues, it is important to find out just who gave him that information, and when. Let’s say that he had phoned the elimination to the police before checking with his colleagues and they had responded with the news of Shirley’s denial. The question still remains: where was the problem? After all, it was only an insignificant elimination print of a police officer and, as had been established, police officers are regularly identified at crime scenes. There was still time to admit that further checks had revealed a mistake, particularly as no charges and no criminal case were riding upon the matter. So why not admit what seemed to be a relatively unimportant mistake?

  To be fair to Mr Macpherson and the other SCRO experts, other explanations are possible. There may have been genuinely mistaken recollections of what happened. After all, they had been under pressure for many years and the events happened a long time ago. Perhaps Mr Geddes was mistaken as to the time at which Mr Macpherson gave him the ‘significant information’. Perhaps someone other than the police had given Macpherson the information about the significance of the print.

  However, perhaps the answer lies in some other apparent inconsistencies in the testimony given by Mr Macpherson and some of his fellow experts. Iain was able to obtain a copy of the full summary of the Mackay report first revealed by Eddie Barnes in Scotland on Sunday, and which the Executive was refusing to hand over to the inquiry. Examination of this report reveals what happened to the processing of print Y7 and when.

  10/02/97

  Work sheets indicate mark Y7 was examined by MACPHERSON at unknown time and identified as MCKIE S34.

  11/02/97

  MACPHERSON shown at unknown time as telephoning MCALLISTER S47 informing that the mark Y7 has been identified as MCKIE S34.

  11/02/97

  At unknown time MCALLISTER S47 speaks to MCKIE S34 and instructs her to
submit a statement regarding her presence at the crime scene. She is adamant that she was not there.

  11/02/97

  HEATH S98 asks MCALLISTER S47 to liaise with the Identification Branch and SCRO to verify the identity of mark Y7 although he has no doubts himself.

  11/02/97

  On an unknown time and date GEDDES S126 is asked by MACPHERSON to verify mark Y7 as MCKIE S34. GEDDES S126 declined to sign form as he could only find 10 points.

  11/02/07

  MCALLISTER S47 contacts MACPHERSON and discusses mark Y7 regarding MCKIE’s S34 denial. MACPHERSON states that there is no possibility of an error, mark Y7 was her thumb print.’

  12/02/97

  At unknown time MCBRIDE is asked by MACPHERSON to examine mark Y7 with the elimination prints of MCKIE S34. She identifies mark Y7 as MCKIE S34 left thumb.’

  12/02/97

  At unknown time on either 12th or 13th [February] HEATH S98 is informed by MCALLISTER S47 that identification of mark Y7 is not in doubt.

  Crucially, if correct, this timeline reveals that, contrary to his oral evidence, expert Macpherson did not wait until all four of his colleagues had confirmed his identification before he contacted the police. It is clear that at least one expert, Fiona McBride, did not examine the mark until 12 February, the day after Macpherson had spoken to the police on two occasions. Furthermore, there is no mention in the timeline of experts Charles Stewart and Anthony McKenna who are also alleged to have confirmed the identification before the police were contacted.

  The matter is further complicated, or perhaps illuminated, when we look at the back of the photographs of the prints that the experts claim to have initialled as proof of when they confirmed Mr Macpherson’s identification. In her inquiry evidence Fiona McBride was quite clear about who signed what and when, saying, ‘I checked the mark after Charles Stewart, Hugh Macpherson and Alister Geddes. I know that because I was told that Alister Geddes had already looked at the mark and when I appended my initials on the back I asked who else had seen the mark and whether I should add their initials. Hugh Macpherson had seen the mark, so I put his initials on the back, and I was told that Charles Stewart had seen the mark. I know that Tony McKenna had not seen the mark at that point, because I put only three sets of initials on the back.’