Cover-up, conspiracy and the Lockerbie bomb connection

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IF THERE is a day when the seemingly inconsequential case involving DC Shirley McKie morphed into the crisis which today is threatening the reputation of Scotland's judicial and political system, it is Thursday, August 3, 2000.

It was already more than three years since McKie (pictured left) had visited a house in Kilmarnock where a woman called Marion Ross had been brutally murdered. Since then McKie had been accused of entering that house unauthorised, and leaving her fingerprint on the crime scene. She had been charged with perjury, after claiming in court she had never set foot in there. She had been humiliated at the hands of her former colleagues.

Now, on that August day, a group set up by the Association of Chief Police Officers Scotland (ACPOS) to examine the McKie case, was faced with a stunning report. It had already been established that the fingerprint experts at the Scottish Criminal Records Office (SCRO) had got it wrong and that the print was not McKie's. Now, the document in front of the group - an interim update from James Mackay, the man they had asked to investigate the case - claimed the SCRO officers had acted criminally to cover up their mistakes. The consequences were immense: if Scotland's forensic service was both guilty of errors and of attempting to conceal those errors, what confidence could anyone have in the entire justice system?

Last week, Scotland on Sunday revealed the contents of Mackay's final report, which had been kept secret for six years, and which was never acted upon by Scotland's chief prosecutor, Lord Advocate Colin Boyd. This week, we can reveal that it was not just police and prosecutors who knew its contents; the devastating findings of the interim version were passed on to ministers as well.

Mackay, a much respected former Deputy Chief Constable of Tayside police, had been commissioned to investigate the McKie case after a separate report by HM Inspectors of Constabulary had found that - despite the SCRO's claims - McKie's prints had never been at the crime scene. Mackay now probed deeper. As this newspaper revealed last week, his final report found that a mistake had been made, yet had not then been owned up to. "The fact that it was not so dealt with," he reported, "led to 'cover up' and criminality."

Now Scotland on Sunday has been passed documents obtained under Freedom of Information legislation which show that on the same day that Mackay's interim findings were being given to police chiefs, the then Justice Minister Jim Wallace was also informed of the results. The language used to describe Mackay's findings to Wallace was even starker than that used in the report itself.

The proof comes in an e-mail written by a senior official in the Scottish Executive Justice Department, Sheena Maclaren, to another senior Justice Department official, John Rafferty. Maclaren, who was the secretary of the Department's second police division, handled the correspondence of Wallace.

On September 20, 2001, Maclaren wrote: "James Mackay, then DCC Tayside police, was appointed to lead the investigation of the issues relating to fingerprint evidence. On 3 August 2000, we were informed that investigations so far suggested that the evidence given in court by... SCRO fingerprint personnel was 'so significantly distorted that without further explanation, the SCRO identification likely amounts to collective manipulation and collective collusion'."

She added: "Mr W Rae, then President of ACPOS and President of SCRO's Executive Committee, decided that given the circumstances, all Chief Constables concluded that there was no alternative but to 'precautionary suspend' the 4 SCRO personnel. This was done on 3 August by the Director of SCRO. Ministers, copied to Richard Henderson and others, were informed of this decision in a minute from John Rowell on 3 August 2000."

Rowell, another head of police in the Scottish Executive's Justice Department, sat on the executive committee of the SCRO. A minute of the committee meeting on October 27, 2000, attended by Rowell, confirmed that he too saw Mackay's findings. "Mr Rae [the chairman] had made available copies of [Mackay's] Interim Report," the minute declares.

Last week, before being confronted with today's revelations, the Scottish Executive confirmed it had never been given sight of Mackay's report. A spokesman for the Justice Department said: "It would not have been appropriate for Scottish Ministers to have seen the report. It remains a confidential report between the police and the Crown Office and Scottish Ministers (except for the Lord Advocate in his capacity as head of the Crown Office and Procurator Fiscal's office) have never been passed a copy of the report." Asked whether the First Minister had seen the report, his spokesman replied: "No - and neither have any other Ministers past or present as this was a confidential report between the police and the Crown Office."

After being told about the e-mails yesterday, a spokesman for the Executive insisted that they only referred to Mackay's interim findings, not to his full report which was published some months later. The spokesman said: "This e-mail exchange simply confirms that the Executive was made aware of the rationale for that action [suspension of the SCRO officers]. As the e-mail makes clear, this was interim information provided to the Executive in the year 2000 around the time of the suspension decision." The spokesman said that a civil service note had been sent to Wallace after the August 2000 meeting which "would have confirmed the reasons why there were going to be suspensions". The spokesman added that it was for the Lord Advocate, not his fellow ministers, to act on the findings of the Mackay report.

Last night there were further questions from the McKie family and their supporters over why, when faced with such staggering allegations, ministers failed to do more to address the SCRO's failings.

Iain McKie, Shirley McKie's father, said: "This reveals that at that time in August 2000, the Mackay report was being discussed within Jim Wallace's department. The whole case has now reached staggering proportions and if ever a public inquiry was required it is required now."

Wallace was unavailable for comment yesterday - and with his successor Cathy Jamieson remaining silent about the scandal, it has been left to Boyd to explain the inaction. On Friday, he declared that he had seen the full Mackay report and decided that there was still insufficient evidence to prosecute anyone from the SCRO. This decision, taken in September 2001, astonished Mackay. He is understood to have expressed his "surprise" and "disappointment" to the Crown Office and to have relayed his concerns to the then deputy crown agent, Bill Gilchrist. Indeed, so curious is the Lord Advocate's decision not to prosecute, that many are reaching their own conclusions as to why he didn't press ahead with a prosecution.

One is the theory that such a prosecution would undermine the case against David Asbury, the man jailed for the murder of Marion Ross. Such a fear was misguided: Asbury's conviction was quashed anyway in August 2002 on the back of the McKie revelations.

A second theory brings in the shadow of the Lockerbie bombing. Mackay's explosive report into the McKie case that August came three months after Boyd began the prosecution of Libyan suspects Abdelbaset Al Megrahi and Al Amin Khalifa Fhimah. The eyes of the world were focused on Scottish justice. What would it have said of that system if - just as the Crown was trying to convict the bombers - it emerged that fingerprint officials had been involved in "criminality and cover-up"?

Boyd strenuously denies that Lockerbie has any relevance to his judgments regarding the McKie case. When Iain McKie first raised the issue in 2000, Crown Office officials declared that Lockerbie "had not affected in any way the response from this or indeed any other department of the Scottish Executive to the issues raised by you."

But there is clear proof that senior justice chiefs had a stake in both cases; SCRO director Harry Bell, for example - whose agency was coming under such scrutiny - was a central figure in the Lockerbie investigation, having been given the key role in the crucial Maltese wing of the investigation, and given evidence in court.

Today's revelation that two American fingerprint experts who savaged the SCRO over the McKie case were asked by the FBI to "back off" suggests that plenty of people were aware of the danger that the case could undermine the Lockerbie trial.

Former MP Tam Dalyell - who has long campaigned on the Lockerbie case - said: "I have always felt that there was something deeply wrong with both the McKie case and the Lockerbie judgment. It is deeply dismaying for those of us who were believers in Scottish justice. The Crown Office regard the Lockerbie case as their flagship case and they will go to any lengths to defend their position."

The pressure for a full public inquiry is now growing day by day.

It is understood that, this week, the Scottish Parliament's Justice 1 Committee will consider launching a full parliamentary inquiry. One thing is sure: this murky affair looks set to rock the foundations of Scotland's criminal justice system.

• SCOTLAND on Sunday revealed last week that justice officials were warned six years ago by police of "cover-up and criminality" in the Shirley McKie fingerprint case. Our story was picked up across Scotland, leading to calls for a judicial inquiry from MSPs.

Justice Minister Cathy Jamieson is now under growing pressure to act over the scandal but - nearly two weeks on - has so far refused to talk once about why ministers decided to offer 750,000 to Shirley McKie, just as she was about to take her case to court.

Lord Advocate Colin Boyd is also in the firing line, over his decision not to press charges against fingerprint experts, despite the allegations of criminality. Jim Wallace, Justice Minister when the McKie scandal broke, is also under fire. He was aware of the allegations but failed to act. First Minister Jack McConnell is under pressure to call a public inquiry.

• TWO American fingerprint experts were warned by the FBI to back off from the Shirley McKie case for fear it would scupper the trial of the Lockerbie bombers.

David Grieve, the senior fingerprint expert at Illinois State police, said that FBI agents pleaded with him to stay silent, fearing the case "would taint the people involved in Lockerbie".

Campaigners for the McKie family last night claimed that the plea to "let everything drop" shed new light on why the former policewoman was denied justice. They believe that the Crown was determined to protect the reputation of the Scottish justice system at a time when it was coming under international scrutiny.

The astonishing claims come as Scotland on Sunday reveals that:

• former justice minister Jim Wallace was aware six years ago that fingerprint experts at the Scottish Criminal Records Office (SCRO) were accused of "collective manipulation and collective collusion", yet they were allowed to return to work two years later;

• MSPs are preparing to launch their own parliamentary inquiry into the scandal to get to the truth of the allegations.

Wertheim and Grieve, both internationally respected fingerprint experts, were central in clearing McKie in 1999 when she was accused of having left her fingerprint at a crime scene. The case left the Scottish justice system open to claims its fingerprint evidence was unsafe. FBI officers took both aside before the Lockerbie trial in the Hague began in February 2000.

Grieve, the senior fingerprint expert at Illinois State Police, said: "I was asked not to mention anything about the case and not to publicise it because we had to think about the higher goal, which was Lockerbie."

He also claims that the FBI had been visited weeks earlier by an official from the SCRO.

"I was pulled aside and given a lecture on the importance of not embarrassing a 'sister agency' which had 'very important and high profile' cases pending of an international significance. I knew the reference was to the Pan-Am bombing," he said.

Wertheim, a fingerprint expert of 20 years' experience, added: "I was at the FBI for a meeting and one of their people approached me and made the suggestion that I let everything drop."

Iain McKie, Shirley McKie's father, said yesterday that he believed Lockerbie provided a motive for the 'cover up' over his daughter's case.

He said: "I have always suspected the Lockerbie connection, but when I put it to the Lord Advocate, I got nothing from them. I could never understand why they treated my daughter like that. Lockerbie would give them that motivation."

Former MSP Mike Russell, who has campaigned for the McKie family, said: "This new information suggests the context for the Shirley McKie miscarriage of justice. It suggests that this context is much bigger than previously thought.

"It places the Lord Advocate in a completely untenable position and he too must now be considering his future. If he was influenced by this [Lockerbie] then he cannot continue as Lord Advocate."

SNP MSP Alex Neil, another campaigner for the McKies, said: "A lot of people think that there was pressure put on the FBI by the Scottish law authorities which maybe explains some of the bizarre decisions taken by the Lord Advocate."

The link between Lockerbie and the McKie case goes deeper as several police chiefs and prosecutors were involved in both. The director of the SCRO at the time of the allegations of criminality, Harry Bell, was one of the key police officers whose evidence led to the conviction of Abdel-baset Al Megrahi.

Lord Advocate Colin Boyd led the Lockerbie trial, securing a conviction in January 2001. In September of that year, despite the evidence presented by the Mackay report, he decided not to prosecute the SCRO officers over the McKie case.

The SCRO admitted yesterday that its officials had visited the FBI in 1999 and 2000, but insisted the trips had nothing to do with the McKie case.

Meanwhile, a spokesman for the Crown Office strongly denied that the decision not to prosecute the SCRO officers had been taken with Lockerbie in mind. She said: "SCRO was not involved in any way with fingerprinting in the Lockerbie case, the evidence of which was never disputed at all."

Boyd declared on Friday that he had decided not to prosecute the four SCRO officials because of "conflicting" evidence from fingerprint experts. He added that a prosecution would have to prove criminal intent.

Wilful blindness to the truth threatens to erode justice

IT SHOULD worry us all that after more than six years of embarrassment about the quality of fingerprint evidence in Scotland and the calibre of work done by the Scottish Criminal Records Office (SCRO), the senior prosecutor in the land appears to have learnt nothing.

At the very least, we can say with confidence that the Lord Advocate, Colin Boyd QC, has failed to grasp a critical issue at the heart of this debate.

In a letter Boyd sent on Friday to the presiding officer George Reid to explain his decisions to prosecute Shirley McKie for perjury and not to prosecute the four SCRO experts who misidentified a print at a murder scene as hers, he writes: "Since the time the issue arose in the trial of Shirley McKie, there have always been, and there remain, conflicting expert views on the issue of identification of the relevant fingerprints.

"I concluded in 2001 that the conflict in expert evidence was such that there could be no question of criminal proceedings."

In the earlier days of the debate, Willie Rae, then Chief Constable of Dumfries and Galloway and now the top man at Strathclyde, said in front of TV cameras that fingerprinting was not an exact science, and that the McKie case was simply a difference of opinion between experts.

More recently, Jim Wallace, while still Justice Minister, reached a similar conclusion. Boyd has now revealed he too remains unenlightened.

Fingerprinting, properly administered, is an exact science. Ask any of the genuine experts, such as Allan Bayle, formerly of Scotland Yard, or Pat Wertheim, the American expert who testified so brilliantly at McKie's trial in 1999. But even common sense should tell us, given the fact that people have been executed - and still are in some parts of the world - on the strength of a fingerprint, that it has to be precise.

There is a stubborn refusal by the SCRO to admit even that an error was made, far less something more sinister, even though the Crown Office and the Executive have long since conceded that point. This pig-headedness ensures that changes that are crying out to be made are kept in check.

The SCRO still makes an identification based on establishing 16 points of similarity. In more advanced centres around the world, experts examine the whole mark and don't work to a numerical, and fallible, standard.

Better practices and training are available, but despite making another major error in a mark left at a bank robbery in Ayrshire two years ago, SCRO continues to spurn them. The result is that Scottish fingerprinting has become a laughing stock around the world.

Independent experts have also been highly critical about SCRO's crime-scene investigation work, described by Bayle as the worst he's ever seen. The organisation must be forced to acknowledge its many flaws.

There is also a pressing need to break the strong link between the SCRO and the police service, especially Strathclyde Police. The current director, John McLean, was an Assistant Chief Constable with the force. His predecessor, Harry Bell, was a Det Chief Superintendent there.

Agencies involved in detecting and solving crime, the police, forensic examiners, the Crown Office and Procurator Fiscal Service, tend to form bonds and pull together. But that has to be resisted as it undermines the necessary independence of each of those bodies.

Scientists and analysts who examine crime scenes for fingerprints, traces of DNA and any other clues should simply be concerned with finding the best evidence and passing it on. They should not become part of the drive to secure the conviction of an accused person. It has been suggested to Scotland on Sunday that SCRO experts have in the past been given targets to meet in making positive identifications. That should never happen. A print either matches a crime scene mark or it does not.

International experts have proved the mark in Marion Ross's home was not left by McKie; five colleagues of the four who insisted it was refused to support their identification; an independent inquiry by senior police officers found evidence of criminality on the part of the SCRO. Yet the organisation, with no dissent from the Executive or the Crown Office, continues to stand by its discredited experts. It does not bode well for Scottish justice.