DCSIMG

Criminality and cover-up

'THE evidence was overwhelming, but it didn't seem to matter what we did. Nothing changed," says Shirley McKie. The date it all started is indelibly etched on the former police officer's memory. February 11, 1997 - nine years ago yesterday. She was in Kilmarnock Police Station when it happened. "One of the prints we have found is yours," a Strathclyde Police detective inspector told her.

McKie could have said nothing - after all, she was not under suspicion, and eliminating police officers' fingerprints from an investigation is routine practice.

But, having once before been warned to be careful at crime scenes, McKie was anxious to protect herself. Just as the senior officer began to walk away, she asked: "On the tin?" His reply would change her life. "No," he told her. "In the victim's house."

McKie, then a 34-year-old detective constable, knew this couldn't be right. She had searched the home of a suspect in the murder of Marion Ross, a middle-aged Ayrshire spinster, and in doing so had touched a sweet tin that became central to his prosecution. But she had never entered Miss Ross's home, where the killing took place.

McKie's decision to declare that truth, and stand by it in court by querying the fingerprint evidence, led to a gruelling struggle that has seen her accused, and cleared, of perjury, battle depression that led her to contemplate suicide, and fight bankruptcy in the attempt to clear her name.

The Scottish Executive finally settled with McKie last week, to the tune of 750,000 - but evidence unearthed by Scotland on Sunday makes it clear that she should never have been forced to endure so many years of personal agony. The documents show that as long ago as the summer of 2001 government lawyers knew that she was the victim of a government agency prepared to stop at nothing to protect its flawed procedures from public scrutiny.

That much was made clear by James Mackay, a respected former Deputy Chief Constable of Tayside Police, who had been asked to lead an investigation into the conduct of the Scottish Criminal Records Office (SCRO), whose officials alleged that McKie's left thumbprint had been found on a doorframe at Ross's home, in June 2000.

Three extraordinary sentences from his report, published today for the first time, reveal his concerns.

"It is my view and that of the enquiry team that there was criminality involved in the actings of the SCRO experts and that that criminality first reared its head in February 1997. This was after the blind testing [an anonymous review of case work] was carried out when it should have been patently obvious to those involved that a mistake had been made and there were opportunities then for the mistake to be acknowledged and dealt with. The fact that it was not so dealt with led to 'cover up' and criminality."

Almost five years after his report was submitted, the SCRO has yet to be held to account. Government lawyers sat on the report for 11 months before telling McKie that no action would be taken against officials. And, despite Mackay's damning judgment, a blind eye was turned to the SCRO's conduct, allowing it to continue unchallenged.

Scotland on Sunday can also reveal evidence that SCRO officials deliberately tampered with fingerprint evidence as they repeatedly refused to admit they were wrong. Independent senior police officers concluded that SCRO analysts not only wrongly identified a crime scene mark as McKie's, they were also guilty of criminal conduct in seeking to cover their tracks - but they were not prosecuted.

Four SCRO fingerprint experts were suspended during the inquiry six years ago, but all have been reinstated. They continue to work for the SCRO and have been given supervisory roles requiring them to rubber-stamp the identification work of other staff. Despite the pay-out to McKie, ministers last week repeated the claim that their error was an "honest mistake".

This "honest mistake" had already brought serious embarrassment when McKie was tried for perjury in 1999. She was cleared when American experts travelled to Scotland and demonstrated to a High Court judge and jury that the print could not be hers.

Utter humiliation was to follow when the US experts went on to prove that a fingerprint found on the sweet tin handled by McKie was not that of Miss Ross, as the SCRO had claimed. The tin had been found, full of money, in the home of David Asbury, and the print was used to convict the young man of the spinster's murder. Asbury was released on bail and his conviction has since been quashed.

Although the external police inquiry that followed - led by Mackay with Tayside's head of CID, detective chief superintendent Scott Robertson, both now retired - concluded that there was criminal conduct by the SCRO employees, their recommendation that there was sufficient evidence to justify criminal charges was not acted upon by the Crown Office.

It is not clear exactly which officials or politicians saw their report, which was commissioned by the Crown Office, but the Lord Advocate, Colin Boyd QC, argued during McKie's civil action that expert witnesses should always be immune from prosecution - even if they gave false evidence.

The Mackay report, which has been passed to Scotland on Sunday by a well-placed source, reveals details of a meeting arranged between two European fingerprint experts and two SCRO experts who had not been part of the misidentification of McKie's print. While the European experts were adamant that the mark could not have been McKie's, the SCRO officials continued to back their colleagues, insisting that the partial print had been left by part of her left thumb.

Mackay explained in his report that he went on to approach numerous experts from a number of jurisdictions, and that he consulted with three fingerprint experts from the national training centre at Durham.

In a damning paragraph, he reported: "These experts have grave doubts as to the procedures involved during the various examinations and comparisons of the disputed marks [i.e Shirley McKie and Marion Ross]. In particular they had serious doubts about the 'independence' and 'integrity' of the 'blind testing' and other comparison procedures by the four experts from SCRO. In the view of the experts at Durham there seemed to be evidence of some manipulation of the evidence of the experts at SCRO and some element also of a collective and cultural collusion which led to the erroneous identification of Shirley McKie as the donor of the mark Y7 [the thumbprint]."

And Pat Wertheim, a US fingerprint expert who testified at McKie's trial in 1999 and was due to give evidence in McKie's damages case last week, has told Scotland on Sunday that SCRO officers were guilty of much more than just making errors.

Wertheim claims that his investigation of three previously unseen fingerprint enlargements, prepared by SCRO analysts, show they progressively removed details capable of differentiating McKie's thumbprint from the one left on the doorframe.

He said: "That is the smoking gun that tells me they knew this was an erroneous identification. They cropped out all the parts of the chart that didn't work for them. This had to be done intentionally. What they did goes against all of the protocols for charting court enlargements."

A spokesman for the Crown Office said: "The Mackay and Robertson report was carefully considered by senior legal staff within the Crown Office and Procurator Fiscal Service. A full report was subsequently submitted to Crown Counsel, who instructed in 2001 that there were to be no further proceedings in this case. Ms McKie was advised of this in a meeting at Crown Office on September 7, 2001. The decision was also ann-ounced publicly later that day. This position has not changed." When asked to comment, Mackay said it would be "inappropriate" to do so.

A spokeswoman for the SCRO said yesterday: "The officers referred to are very experienced and valued members of staff of the SCRO. They are employed in a variety of roles in the Glasgow bureau. At the moment however, they are not involved in the identification and presentation of fingerprint evidence in court." Asked to explain what this meant, she said that they had a supervisory role in quality assurance and "other areas".

Allan Bayle, the UK's leading fingerprint expert and one of several consulted by McKie and her father Iain in recent years as the civil process dragged on, said the SCRO statement underlined its 'incompetence and arrogance'.

If Shirley McKie, now 43, had been convicted of perjury, she could have been jailed for up to seven years. As it is, her ordeal not only ruined her career but also wrecked her private life and even brought her to the brink of suicide. She sued her employer for malicious prosecution, but lost her case in February 2002 and was hit with a 13,000 legal bill from Strathclyde Police.

She still lives alone and says she has been unable to work or move on with her life. She remains on anti-depressants and will maintain weekly appointments with a counsellor for "as long as I have to".

While her 750,000 settlement is a much-longed-for victory, she believes it should not be the end of the story. She said: "I was fighting for survival. I couldn't bear the consequences of losing to enter my head. I would have lost everything and would probably have ended up in some kind of mental institution at best.

"There are people, in responsibility, that should have ensured this was dealt with. Supervisors in SCRO, the Lord Advocate and senior ministers. They had the information so if I am angry with anyone it is with the people in senior positions. They are paid to do a job and they clearly failed, time and time again, to deal with the situation."

She added: "The individuals within SCRO are faceless beings and there are people in Strathclyde Police who have behaved disgustingly. I feel sorry for their families as I don't know how they can live with themselves. I hope the government now does the right thing and brings criminal charges. There is overwhelming evidence against them."

NINE YEARS OF LEGAL WRANGLING

February 1997: Marion Ross found murdered. Shirley McKie accused of leaving a fingerprint at the scene.

February 1997: McKie goes off work, depressed.

July 1997: Professor Colin Espie reports McKie is "telling the truth".

March 1998: McKie arrested in a dawn raid. Charged with perjury.

May 1999: McKie cleared of perjury.

July 1999: Lord Advocate refuses to order an inquiry into SCRO.

December 1999: McKie discharged on medical grounds.

June 2000: Justice Minister Jim Wallace confirms the print was not McKie's. James Mackay, of Tayside Police, is instructed to investigate SCRO officials.

October 2000: James Mackay reports to the Crown Office.

August 2002: David Asbury's conviction for Ross' murder is quashed.

February 2003: McKie loses her action against Strathclyde Police.

December 2003: Lord Wheatley allows McKie to take her case against the SCRO to the Court of Session.

February 2006: The Scottish Executive settles McKie's civil case against the SCRO for 750,000 damages.

 
 
 

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