The Price of Innocence

by Michael Russell

  As Dr McLay said later, it was indeed ‘unthinkable’ that fingerprint evidence could be wrong, just as it was ‘unthinkable’ that senior police officers could be defied by constant assertions of truth from a junior detective. So within days of the problem occurring with Shirley’s print, the SCRO was locked into its position, senior police officers and the Crown prosecutors into theirs. The consequences for Shirley and for David Asbury were horrendous.

  If the Crown Office, the police and the SCRO stood firm, then it was very unlikely the government – and particularly the present Scottish government – would have the will to overrule them. Civil servants would have advised ministers that the police and the SCRO together could not be wrong, particularly when faced with, as they saw it, merely a rogue cop, her retired father, a murderer and a few opportunist politicians. The inertia of the state could easily resist that, they thought.

  After the Mackay investigation revealed criminality, why were the experts not charged and thus made to account for their mistakes?

  The Mackay report was the turning point. Shirley’s acquittal, followed by HMCIC’s findings, as well as those of other international experts, had set plenty of alarm bells ringing. But when an establishment police officer such as James Mackay found prima facie evidence of criminality and cover-up, then the matter had to be taken seriously. Consequently it now moved from being an operational issue to one of policy, and therefore associated with the government. The decision whether or not to prosecute was therefore a political one, no matter what the lord advocate subsequently claimed.

  That does not mean, of course, that it was party political – it was not. Party politics had not yet entered into the matter. The political aspect of the situation involved weighing up the various political pros and cons of a prosecution and looking ahead to what the outcomes of such a prosecution – successful or unsuccessful – might be for the justice system in general or the Executive, the Crown Office, the police or forensic services in particular.

  The default position of the Crown Office would have been not to prosecute. Its focus was on Lockerbie at the run up to the trial at Camp Zeist. With the world looking on expectantly, Shirley’s ongoing challenge to forensics and the Scottish justice system was causing some misgivings, both at home and abroad. This needed to be resolved, and quickly.

  That position allowed any conspirators to continue holding their stance, and, increasingly, to do so with protection from the whole judicial, administrative and political system. As more and more people and agencies developed a vested interest in the outcome it became easier for the truth to be denied.

  But the Mackay report was so damning that some credible and comprehensive reasons had to be found not to proceed with charges against those people identified by Mackay. The lord advocate ostensibly gave his reasons in that strange letter to the presiding officer of the parliament on 17 February 2006:

  I would require to have been satisfied that a court could accept beyond reasonable doubt not only that there was a misidentification, but that the evidence was given dishonestly and with criminal intent. In the light of the whole evidence available to me . . . it was clear that such intent could not be demonstrated . . . there have always been, and there remain, conflicting expert views on the issue of identification of the relevant fingerprints. I concluded that the conflicting expert evidence was such that there could be no question of criminal proceedings.

  Let’s examine the final statement about ‘conflicting expert evidence’. There is often conflicting evidence in a trial; indeed one might argue that resolving such evidence is the whole purpose of bringing cases to trial. To say that the existence of such evidence should preclude a trial goes against the whole principle of justice as we understand it. But using the pretence of ‘conflicting expert evidence’ to justify not taking proceedings against the SCRO experts raises a more critical issue. The most basic principle underpinning fingerprint evidence is that if two fingerprints experts disagree about the veracity of a fingerprint identification, and if the print is of sufficient quality and area, then one expert must be right and one wrong.

  It is therefore necessary for any prosecuting authority to resolve such a disagreement or risk damaging the science of fingerprinting. The lord advocate failed to do this, not for one, but for two disagreements. He therefore fatally undermined the whole reputation of expert testimony.

  In addition, if ‘conflicting expert opinion’ automatically meant no prosecution, then it is a legitimate question to ask why Shirley’s trial was allowed to continue, when we know that before it started the prosecution was well aware of the serious expert disagreement about the identification.

  The lord advocate’s use of the phrase also implies that the competing evidence was of equal quantity and quality. But it wasn’t. Between August 2000 and August 2001 when Procurator Fiscal Gilchrist was making his enquiries following receipt of the Mackay report, he knew that the fingerprint evidence given by the SCRO had been rejected at Shirley’s trial in favour of that produced by Pat Wertheim and David Grieve. Shirley had been unanimously acquitted by a jury, and forensic and other evidence had been produced at her trial to prove that she could not have been inside the murder house. This by implication meant that the SCRO must be wrong.

  In January 2000, Frontline Scotland revealed that as part of its investigations, four top English independent experts had examined the disputed identification and all had stated that the SCRO experts were wrong. The same month, fourteen experts from Lothian and Borders Police informed the minister for justice that the misidentification was at best ‘a display of gross incompetence’ and at worst that it bore ‘all the hallmarks of a conspiracy of a nature unparalleled in the history of fingerprints’.

  The chief inspector of constabulary’s 2000 inquiry had produced evidence from two renowned international experts, Arie Zeelenberg and Torger Rudrud, that the print was not Shirley’s. This led to an immediate apology to Shirley by the minister for justice and Chief Constable Willie Rae and resulted in massive procedural and structural changes within the SCRO.

  Again in 2000 the disputed identifications were examined by personnel from the National Forensic Training Centre at Durham, where fingerprint experts are trained. They confirmed the SCRO experts were wrong and strongly criticised some of the procedures adopted. In addition, across the world hundreds of experts working from internet images that had been authenticated and deemed of sufficient quality for such identification – and which were used by the SCRO experts themselves at presentations – came out unanimously against the SCRO ‘identifications’.

  The Mackay criminal inquiry lasted over three months and involved a full-time team of twenty police officers. Its report concluded that not only had there been two misidentifications, but there was prima facie evidence of criminality. In addition, in the same month, two leading Danish experts confirmed that the Marion Ross identification was incorrect. That evidence was strong enough to lead to the immediate release of David Asbury pending his appeal and the eventual quashing of his conviction.

  The stark fact is that at the time the lord advocate made his ‘no proceedings’ decision in August 2001, every single report commissioned by the Executive or the Crown Office had found against them. The evidence was and is incontrovertible.

  The main apologists for the SCRO identifications at that time were of course the experts themselves and some of their colleagues within the SCRO. As many of them had been recommended for prosecution in the Mackay report, it is clear that any decision or prosecution should have been taken without reliance on their evidence. Denial by a suspect is not seen as evidence that someone is innocent.

  Independent expert evidence in ‘conflict’ with the evidence supporting Shirley was so thin on the ground as to be virtually non-existent. In 2001 the only people outside the SCRO who could be found to support the SCRO identifications were Peter Swann and Malcolm Graham who were engaged by the McKie and Asbury defences respectively to examine the SCRO fingerprint iden
tifications.

  Malcolm Graham can be written off as a reliable witness, given that in addition to published correspondence from him criticising the SCRO, he had twice apologised for his ‘mistake’ and in a letter to Iain written on 13 July 2000 he referred to ‘the distress and anguish I and others have caused to you, your daughter and family’.

  Effectively, therefore, we are left with one expert, Peter Swann, a man desperately defending his professional credibility as one of the UK’s foremost experts. To be found wrong in such a high-profile case would be disastrous to his reputation, so he needed vindication just as much the Crown Office needed an excuse not to prosecute. The two needs found each other at a meeting between Swann and PF Gilchrist. Peter Swann’s account of the meeting, which he submitted in his precognition to the parliamentary inquiry in 2006, provides a fascinating insight into the way the decision not to prosecute the experts was actually made and confirms the level of importance that Gilchrist attached to Swann’s evidence – one might almost say the level of desperation he had to find a reason not to prosecute.

  I met with Mr Gilchrist at the Academy of Experts in London on 16 June 2001 . . . Mr Gilchrist showed me reports prepared by fingerprint experts from Holland and Norway. [He] appeared to be struggling with those reports and went on to show me the material prepared by Durham training school. They had produced a chart, with characteristics marked. It was evident, however, that they had followed the same approach as the McKie ‘experts’ and had tried to mark detail in disagreement. The evidence prepared by the Durham training school was totally flawed. I also examined the court production prepared by Pat Wertheim. Again, Mr Wertheim’s evidence was totally flawed and, indeed, demonstrably so. I then showed to Mr Gilchrist my prepared chart of the same characteristics which had been marked by Mr Wertheim. I demonstrated that they were in sequence and agreement with the characteristics on Ms McKie’s left thumb. I explained to Mr Gilchrist that he had failed to understand what had happened due to latent print distortion and, in this case, the fact that the mark had moved through sixty-six degrees. I spent some time explaining that to Mr Gilchrist and I was satisfied that he understood my findings.

  Later in his precognition, Swann alleged, ‘Upon [the] conclusion of our meeting, I distinctly recall Mr Gilchrist telling me that he could not, upon his return to Scotland, put in an adverse report upon the four fingerprint officers.’ Indeed, Gilchrist did recommend ‘no proceedings’ against them in July 2001, and that was because the Crown Office never intended to open up a can of worms in relation to the SCRO and Strathclyde Police. It would have been too embarrassing and too difficult. It seems to us that the lord advocate chose to reject a mass of independent evidence pointing to the SCRO experts being wrong in two identifications and used the evidence of one discredited expert to avoid prosecuting them. Worse still, he gave them immunity from prosecution in the future, no matter what evidence is subsequently unearthed. His behaviour, to our mind, points to a massive abuse of power and leaves him open to charges of incompetence, disregard for the rule of law and misuse of his constitutional position.

  Why, after a decade, have so many of the forensic and fingerprint issues central to the administration of justice in Scotland which have arisen from the case still not been resolved?

  The desire of the legal and political establishment to cover up scandal has been very strong throughout this case. Another major factor has been the nature of governance in Scotland post devolution, particularly under the leadership of Jack McConnell, who is much more concerned with tactics than with strategy. Indeed, there is little or no strategic thinking within his administration – matters are decided on the basis of how they will affect the next day’s headlines or how they will impact on any of the special-interest groups to which Labour is indebted.

  Initially, as we have seen, the tactical objective was to continue to oppose Shirley and Iain. Then, when Michael Russell, a Scottish National Party MSP, got involved, the objective widened to ensure that no ground was given to an opposition politician. A judgment was made that the occasional damning headlines would damage not the Executive, but rather the Liberal justice minister of a Labour-dominated coalition.

  After 2003, when there was a Labour justice minister, attempts were made to deflect most criticism towards the lord advocate, whom few people associated with the Labour party. However, as the pressure increased, it became obvious that a political solution might have to be found. The commissioning of the MacLeod reports was an attempt to find a way out, as was the slow offer of various figures in settlement.

  But the real problems in the SCRO continued to be masked by internal bluster from a succession of weak SCRO and Fingerprint Service managers who were under severe pressure from their staff in Glasgow and in particular from the four ‘experts’. There was also, as we have seen, a vested interest held by CC Andrew Brown, first in his role in ACPOS and then as HMCIC. His assertions that everything had improved beyond measure were not borne out by the reality, but it was easier for the Executive, and indeed all parts of the system, to believe this than to dig deeper.

  Of course, most people outside Scotland saw the situation more clearly than those within the country. The refusal of the Scottish government to bring about a speedy and just settlement at the earliest possible time was therefore not only damaging at home, but also to Scoland’s reputation abroad.

  The decision by the justice minister to ask DCC Mulhern to bring forward a comprehensive action plan for change, partly forced on her by an unprecedented media campaign, was a huge step in the right direction, but that type of direct action should have been put in place within six months of HMCIC’s report, not six years.

  The parliamentary inquiry could also have been big step forward, but wasn’t. Opportunities were missed and the inquiry was hampered by deep political sectarianism. The determination of Labour to resist any SNP-supported case meant that at times the inquiry descended into cruel irrelevance and made it difficult for the members to focus on the real issues and make substantive progress with them.

  Why did the Executive pay Shirley £750,000 in compensation rather than allow the ‘facts’ to be explored in court?

  In her evidence to the parliamentary inquiry, Cathy Jamieson talked of ‘very specific things that could have gone to court’ had there been no settlement, but was not pressed on what those things were. In fact, they would have included evidence like the two MacLeod reports and the testimony of internationally renowned experts like Arie Zeelenberg and Pat Wertheim, proving the SCRO had been wrong in two identifications. Despite the Executive’s attempts to bar him, the court would also have heard from James Mackay whose police report revealed suspected criminality within the SCRO. Witnesses would have been called, not only to conclusively prove that the fingerprint was not Shirley’s, but also to suggest that negligence, malice and even criminality had been displayed by the SCRO experts. The actions of the Executive would have been put under the spotlight, and the lord advocate, Jim Wallace and Cathy Jamieson, who had been cited by Shirley’s legal team as witnesses at the civil hearing, would for the first time have had to explain their actions under oath and be cross-examined by various QCs.

  Crucially, the evidence would also have shown that the conditions for a settlement had existed in 2000 and 2001 and that the Executive had been, or should have been, aware of these conditions. The unacceptable and preventable five-year delay before a settlement was even offered would have been shown to be attributable to failures in governance and government administration, for which the ministers involved, and ultimately the first minister, would have been responsible.

  Going to court, therefore, would almost inevitably have exposed a number of political failures and would have caused a public outcry. The sign of their desperation is evidenced by their payment of £750,000 plus expenses for a so-called ‘honest mistake’.

  Had Jim Wallace offered serious negotiations in the immediate aftermath of his statement in June 2000, then a very much smaller sum
would have sufficed and Shirley would have been saved from many more years of suffering. The Executive would also have avoided those six years during which its reputation and that of the Scottish justice system were held up to national and international ridicule.

  The Executive thought the settlement would bring closure to the case without any more public scrutiny of its failings, but it lacked foresight as to what would happen thereafter.

  Why has the establishment resisted so fiercely any idea of a public inquiry in favour of a limited, and eventually unsatisfactory, parliamentary inquiry?

  All the answers above suggest reasons why a public inquiry was firmly resisted. Even if its remit could have been controlled, it might still have created embarrassment for the government. It would have forced the truth out of a variety of individuals by insisting on evidence under oath. Given the timing of the settlement, a public inquiry would also have run on uncomfortably close to the next Scottish parliament election.

  A parliamentary inquiry, on the other hand, could have a much more tightly controlled remit, and with a majority of Executive members on the committee (although the Liberals were not often constrained by such considerations, fortunately), it was believed that the thrust of the inquiry could also be steered. Paradoxically, a parliamentary inquiry consisting of working politicians would also be far less likely to consider the handling of the case by existing political figures.

  These purely Scottish reasons for eschewing a public inquiry were reinforced by another consideration which had wider implications – that of Lockerbie. The key moments in the McKie case coincided with the lead-up to the extradition and trial of Abdelbaset Ali Mohmed al-Megrahi and Al-Amin Khalifah Fhimah. The trial under Scots law at Camp Zeist in the Netherlands had captured the world’s imagination. Scotland and its system of law was itself on trial. Nothing must be allowed to shake the world’s faith in Scots law and its system of criminal investigation and prosecution.