Yet at precisely the same moment that system was under attack from within. The judgment of Lord Hardie, who, as lord advocate, was leading the Lockerbie inquiry, was being called into question. Why was he refusing the McKies’ request for an inquiry into the SCRO following Shirley’s acquittal? After all, fingerprint evidence led by the prosecution had been rejected by a court for the first time in a hundred years. Scotland’s foremost fingerprint experts, and, by implication, the country’s forensic services, were being accused of incompetence. Chief Superintendent Harry Bell, who had been deeply involved in the Lockerbie investigation and whose evidence would be central to the prosecution case, was head of the SCRO and had stoutly defended the experts.
As pressure grew for explanations it became noticeable how Bell, with the assistance of William Gilchrist, then senior procurator fiscal, completely controlled communication between the SCRO, the Crown Office and the outside world. All responses to outside queries about the case were carefully orchestrated to reflect that all was well within the Scottish justice system and that Shirley’s acquittal was one of the quirks associated with the jury system. It had nothing to do with the competence of the SCRO experts or any flaws within the justice system. In addition, the SCRO went to extraordinary lengths to assure police forces and governments across the world that nothing was wrong.
When the Camp Zeist trial began, Colin Boyd, the solicitor general during the Lockerbie investigation, had taken over from Lord Hardie as lord advocate. The man who, by his own admission, had made the decision to prosecute Shirley was now prosecuting the alleged Lockerbie bombers. Little wonder that he was not prepared to have his stewardship of the Scottish justice system questioned at that time. And as that would also not have helped the American case against Libya and against terror, it was also little wonder that American FBI officers tried to divert American experts from assisting in the McKie case because of the fall-out it might have had on ‘very important and high-profile’ cases of ‘international significance’. Six years later, neither the Americans nor Lord Boyd wanted that issue opened up to public scrutiny in an inquiry under oath. So there was no public inquiry and the determination not to have one was echoed in London and Washington.
Why is there no current murder investigation with regard to the killing of Marion Ross? Why has her killer never been sought and brought to justice?
In a sense this is the most important question of all and it is appropriate that Iain himself answer it:
On an evening in early November 2005 I was doing a document review when I came upon copies of police log sheets from the time of Marion Ross’s murder. Dated from 9–30 January 1997 they documented the major actions of the murder team at that time in their hunt for the killer.
The logs had been supplied to me confidentially and showed, among other things, that the police had been watching a number of named suspects before the identification of David Asbury’s fingerprint changed the whole course of the inquiry. When I had finished reading them I filed them away with the hundreds of other documents I had obtained.
In early January 2006 I was researching on the internet. By chance I came upon a link to a Scotsman article of 6 April 2005 which reflected on the problems caused by people who commit crime while on bail. The article cited the example of Patrick Docherty, who offended while on bail after being accused of murder.
Intrigued, I searched for Patrick Docherty on Google and found details of the horrendous crime. In 2003 Docherty and his accomplice had broken into 91-year-old Margaret Irvine’s home in Galston. She had been bound and beaten, then a duster shoved in her mouth and a pillowcase pulled over her head. He and another man were eventually sentenced to twenty-five years in prison for the murder of the pensioner.
As I read the report I was struck by the similarities with the Marion Ross case and discussed it with Mairi who remembered that when we had read the police log sheets the previous year a number of suspects had been listed. After a few minutes’ search Mairi retrieved the log sheets and slowly read out an entry.
20 January: Patrick Docherty; local criminal wanted on warrant alleged to have made remarks to previously reliable informant that he was involved in the crime. Assistance requested from Detective Superintendent Lauder, Intelligence, for specialised surveillance assistance to house and arrest Docherty.
I was totally stunned. Here we had evidence that six years after Marion Ross was brutally murdered a strong suspect for her murder had been convicted of brutally murdering another old lady who lived alone only eight miles away. What were the chances of two different teams of psychopaths roaming around Kilmarnock?
I was in a quandary about what to do with this information and discussed the issue with Michael Russell and MSP Alex Neil. Michael had indeed mentioned to me when he first read of the Docherty conviction in 2005 that he thought there was a similarity with the Marion Ross murder but he had taken the matter no further. Both Russell and Neil agreed that it would be best to hold back and see if any further information could be found to support my theory.
Then, out of the blue, I received a confidential phone call from someone who would only call himself Willie. He asked me to meet him secretly at a prearranged place and time.
Sceptical and wary, I met up with him in my car. It soon became clear that he knew exactly what he was talking about and had an intimate knowledge of Mrs Irvine’s murder.
Willie had followed Shirley’s case closely and he had heard rumours that Docherty (who was well known and much feared in the Ayrshire criminal underworld) had been implicated in the Marion Ross murder. His opinion was that some of the police involved in the Irvine murder did not want this possible relationship between the two murders pursued.
Certain officers had been deeply involved in both murder inquires and must have been aware of a possible relationship between them. The log-sheets showed conclusively that Docherty had been a strong suspect in the Ross murder, information that must have been known to these officers. What inquiries had they carried out in 1997 and again in 2004 to clear Docherty of the Ross murder?
My difficulty was how to obtain the answers given my heavy workload preparing for the approaching civil hearing. Then, after the settlement, I was incredibly busy dealing with the press. I still intended to write to Strathclyde’s chief constable, Sir William Rae, expressing my concerns about the Docherty link, but before I could do so a phone call from The Scottish Sun newspaper on 22 February 2006 made my decision easier.
Andy Nicoll, The Scottish Sun’s political editor, had obtained copies of the police log sheet and had made the connection between Docherty and the Marion Ross murder. He was going to break the story. The following day there was a front-page exclusive with the headline ‘Fingered: police believed this was the real killer in prints scandal murder’. Beneath a picture of Patrick Docherty was an explanation that he was the ‘prime suspect’ in the Marion Ross murder case before ‘botched prints evidence saw the wrong man jailed – and detective Shirley McKie falsely accused of lying in court’.
In an inside two-page spread the whole story was analysed with pictures of all the leading players in the scandal. Quoting directly from the police logs and pointing to the similarities in the crimes, the article carried a demand from Alex Neil that the murder inquiry be re-opened.
Five days later The Scottish Sun followed up their scoop, claiming that ‘Maniac Patrick Docherty LAUGHED as he boasted of murdering spinster Marion Ross with kitchen scissors.’ Apparently Docherty had told an anonymous friend, later interviewed by The Scottish Sun, about stabbing Marion Ross in the eye and neck during a botched burglary. The article continued: ‘Docherty – now behind bars for killing 91-year-old Margaret Irvine – even graphically described to his friend how he grabbed bank worker Marion in a headlock and used the scissors to finish her off. He also revealed to a SECOND man that he knew more about the killing than he had let on to police.’
The friend had commented, ‘He is the kind of man who would, without a moment’s hesita
tion, throw you in the back of a van, drive to the hills and put a bullet in your head.’ The article went on to allege that Docherty had also boasted to a prisoner he was in jail with that he knew more about the murder than he was letting on.
Strangely, neither article received any official response from the police, nor did either piece elicit a denial from Docherty or his legal representatives.
What I was now convinced of more than ever was the importance of knowing the current state of the police inquiry into the Marion Ross murder and whether there were any links to Margaret Irvine’s brutal killing. I wanted there to be a proper inquiry into my concerns about the police investigations into both murders. So on 27 February I wrote to Sir William Rae, sending a copy of the letter to the lord advocate. I highlighted the media speculation and my concern at how the Marion Ross murder inquiry had been handled and added that I was keen to know what inquiries Stephen Heath, now promoted to detective superintendent, had made to establish if the two murders were linked.
I asked for a full judicial inquiry into the case and an immediate and active investigation into the murder by a police force outside of Scotland. The reply from the chief constable’s staff officer deemed it ‘entirely inappropriate’ for Strathclyde Police to enter into correspondence with me about ‘media speculation on police investigations into the murders of Marion Ross and Margaret Irvine’.
Astonishingly, more than six months later, at the parliamentary inquiry, the lord advocate was still saying that he knew of no further matters about the Marion Ross murder that might cause the investigation to be re-opened.
That mindset, of course, has plagued this case for over a decade. In fact it caused it, for the mindset is typified by a refusal to believe that fingerprint evidence could be mistaken, and that police or fingerprint officers might ever lie. Even when the fingerprint evidence was comprehensively proved to be wrong and the case against David Asbury collapsed, the same mindset stopped the murder inquiry being re-opened.
Consequently, Marion Ross’s killer has not been brought to justice and there is no indication that either the police service or the lord advocate will take any action to remedy this despicable situation.
I fear that until our country develops a higher standard of governance and a more open and honest public life, a situation like this might easily recur – anywhere and at any time.
It is important, however, that I end this on a positive note. One of the unforeseen consequences of the past decade is that I now belong to a family that is closer and more loving and supportive than it has ever been. I have finally realised that my children are the only true memorial I will ever have and I have grown to love and value them above all else.
If any other family is forced by the state to fight for justice, I hope that they experience the great generosity of spirit, the solidarity and the strong friendships that sustained Shirley and me through this most challenging decade of our lives.
Postscript
Response to the report of the parliamentary inquiry
The report of the Scottish parliament’s Justice 1 committee inquiry into the Scottish Criminal Record Office was eventually published on Thursday 15 February 2007 as the proofs of this book were being corrected. The committee had last heard oral evidence on 12 September 2006, some 156 days earlier, but thereafter it had gone on scrutinising the evidence presented to it in a considerable number of what were allegedly detailed, lengthy and at times acrimonious private sessions which lasted through October, November, December and January. Even in February the committee was still locked in debate, and the final session to sign off the report was apparently only concluded on the evening of 13 February, a mere two days before publication.
It is unprecedented for any Scottish parliamentary committee to spend more than five months considering in private what they should say in public about an issue. The dilemmas they faced – and failed to overcome – are clear from the report itself.
There is little doubt that the report as published did succeed in flagging up a few important issues. Senior management staff, past and present, at the SCRO were robustly criticised for not ensuring that proper procedures were in place and for failing to provide clear and appropriate leadership.
The evidence of the Glasgow SCRO experts and of their small number of outside supporters – Peter Swann, Malcolm Graham and John Berry – was criticised, and major questions were raised regarding some of their testimony. In contrast, the evidence of Arie Zeelenberg and of all the others who identified the mistakes that had been made by the SCRO was accepted with little adverse comment.
The complacency of successive HMCICs in consistently reporting improvements at the SCRO, when in fact serious problems remained untackled, was remarked upon. That fact alone should serve to remind Scotland that the political and police establishments have been and remain desperate to say that the McKie scandal has been resolved, even if the problems which gave rise to it remain largely uncorrected.
Ultimately, however, the report is deeply unsatisfactory. It is the outcome of months of struggle between opposing factions, some of whom were willing to deny the truth in order to denigrate Shirley and her supposed nationalist supporters. Although the committee seemed happy to reveal shortcomings outside of Holyrood, it was virtually silent about the decade of political misjudgements and failings by successive lord advocates and ministers for justice.
These failings are most obvious when the matter of malicious and criminal conduct by the SCRO experts is considered. On the one hand, the committee expressed its frustration at not being able to obtain a copy of the Mackay report that recommended criminal action against the SCRO experts, gently taking the lord advocate to task for not releasing it. On the other hand, the committee chose to completely ignore the full summary of the report containing vital evidence of malice and criminality that was openly available on a number of internet sites, including that of the BBC. It also decided to ignore statements, obtained by Shirley’s legal team, from the two senior police officers responsible for the Mackay report that supported these accusations. Instead, the committee expressed itself satisfied, in the end, by an anodyne Crown Office ‘synopsis’ of the Mackay report, where all references to criminality had been carefully excised.
Indeed, as the reader delves further into the committee’s report, additional supporting evidence of malice seems to leap out from the pages. For example, the committee refers to the considerable unease felt about the ‘blind test’ performed in February 1997. The report produces evidence of widely contradictory testimony from SCRO experts about who had and who had not taken part in this irregular procedure and what their conclusions were. It appears to suggest that the test might have been hidden from the police and the Crown Office on purpose, yet instead of seeing this as symptomatic of cover-up, as Mackay had, the committee is content to write it off as ‘ill-considered and inappropriate’ and as merely an exemplar of procedural failures.
Later in the report, the committee makes a statement of enormous significance:
The committee also notes the concerns about the so-called brush mark on the internet image of mark Y7. On the basis of the evidence given to the committee, the committee is not, however, convinced that this brush mark altered the image in such a way that it would necessarily change an expert’s conclusion on the identification of the mark.
At a stroke this statement discredits the stance of the SCRO and experts like Peter Swann who had for years sought to suggest that it was unsafe to use the ‘damaged’ internet images, condemning respected international experts and the international fingerprint community who had rallied to Shirley’s cause as ‘inexpert’ for using ‘flawed’ images. Again, however, this is eventually written off by the committee as an example of expert disagreement rather than an act performed out of malice. So it goes on, with the committee eventually concluding: ‘on the basis of the evidence that [the committee] has taken, there is no basis to say that the SCRO fingerprint officers had acted maliciously in their id
entification and verification of mark Y7.’ This conclusion, more than any other, suggests just how flawed the report is, and that the parliament, on this occasion, has failed the people.
In addition, the committee repeatedly touches on matters of importance but fails to follow through with its inquiries. This is clearly seen in the assessment of the evidence given by SCRO expert Hugh Macpherson, evidence which has already been analysed in this book. The committee certainly noticed the inconsistencies in Mr Macpherson’s story but it failed to link them to the contradictory written evidence of fellow expert Alistair Geddes and others.
In addition to political pressures on the committee members, it eventually became obvious that they had neither the time nor the forensic skills to effectively examine the evidence. It is clear that, as Iain had warned before the inquiry started and as their convener had also feared, they became enmeshed in a web of conflicting expert evidence. Instead of admitting their own inadequacies, they preferred to blame their confusion on the witnesses and the science of fingerprinting.
It is also clear that the committee was determined from the outset to assert that the issue was about a debate between two equal sides and two equally valid sets of opinions. Yet this course of action was not grounded in any reality and only served to further underline the fact that members were basically ignorant both of the details of the case and of the science of fingerprinting, and remained so.
Almost every known expert supporting the SCRO was called to give evidence, whereas the hundreds of experts across the world who opposed the SCRO, including the independent experts commissioned by the Executive, the Crown Office and HMCIC, were represented by only eight individuals. Balancing truth with lies, as Arie Zeelenberg earlier observed, cannot be right.
The Price of Innocence Page 27