A fingerprint expert who was sacked in the wake of the notorious Shirley McKie case has been told by appeal judges that she will not be reinstated to the job.
Fiona McBride, 46, and three colleagues were held to have been mistaken in identifying a print found at the scene of a murder as coming from Ms McKie, then a detective constable with Strathclyde Police.
She was dismissed by the Scottish Police Services Authority (SPSA) but an employment tribunal ruled that it was an unfair dismissal and ordered that Ms McBride be reinstated.
The authority challenged the decision to give her back her job and an employment appeal tribunal decided in its favour, stating that reinstatement would be “perverse”.
Ms McBride went to the Court of Session in Edinburgh to try to have the reinstatement order restored. She has always insisted that she made a correct identification of the print, and saw a return to the job as vindication of her position.
However, Lady Dorrian, sitting with Lady Paton and Lord McGhie, have rejected her plea.
The judges sent the case back to the tribunal for it to set the level of compensation to be paid to Ms McBride for having been unfairly dismissed.
The print was found inside the home of Marion Ross in Kilmarnock during the investigation of her murder in 1997. At the trial of David Asbury, Ms McKie maintained she had never been inside the house, although the print was identified by Ms McBride and her colleagues as coming from her.
Asbury was convicted and jailed for life, and Ms McKie was put on trial for perjury. She was acquitted. Later, Asbury’s conviction was quashed on appeal and he was freed.
Ms McKie sued the Scottish Executive and in 2006 she received £750,000 in an out-of-court settlement. A public inquiry determined that there had been a “misidentification” of the print, and the fingerprint service was reformed under the newly-created SPSA.
Ms McBride had been working on restricted duties - she was not allowed to sign joint reports or give evidence in court - and she was dismissed on 1 May, 2007.
The tribunal accepted that the SPSA had decided the status quo could not be maintained, and that there was a substantial reason to justify dismissal. However, it deemed the dismissal unfair because of a lack of consultation and consideration of alternative employment.
In the Court of Session, lawyers for Ms McBride argued that the employment appeal tribunal had been wrong to view reinstatement as perverse. The SPSA said Ms McBride continued to maintain that she was right and everyone else was wrong. She wanted a return to full duties and, inherent in that, was the idea of vindication.
Lady Dorrian said the tribunal had intended that Ms McBride should be employed as a fingerprint officer but still on restricted duties. However, reinstatement was unconditional.
“The tribunal could have achieved their stated objective by making an order for re-engagement, but that option was closed to them since (Ms McBride) did not want an order for re-engagement. She was quite clear throughout that she wanted to achieve a return to all the duties of a fingerprint expert. The only motions made on her behalf were for reinstatement or, failing that, compensation,” she added.
“In considering that they could make an order which reinstated her on terms which were different from those of her contract, the tribunal misunderstood and misapplied the law, and their decision on this matter cannot stand.”
The SPSA wanted the case to go to a differently-constituted tribunal, but the judges said it should be heard again by the same members.
“We are confident that, like any judge or judicial body, this tribunal will approach its renewed task, free of preconceptions and with an open mind,” said Lady Dorrian.