Public F***ing Scandal - Part 287

I watched 'Honest' Jack McConnell in the parliament on Thursday - continuing to squirm in relation to McKie's case - still advancing the preposterous line that the Executive cannot disclose certain material because the law doesn't compel disclosure. A five year old child can see the flaw in that reasoning. However, Jack repeatedly referred to Lord Hodge's decision in the 'expenses' part of the McKie v Scottish Ministers case, as some sort of support for the Executive's decision - I have taken the liberty of reading His Lordship's decision - and interesting it is too, if a little abstruse and esoteric for non-lawyers. http://www.scotcourts.gov.uk/opinions/2006CSOH54.html I will attempt to give edited highlights, but before doing so, can I just re-state certain points which I hope are obvious from my previous rants on this subject :- (1) I do not know whether Shirley McKie's fingerprint was in the murder house, though as a matter of fact, the Executive accepts that the print in question was NOT McKie's. My confusion arises from the apparent fact that those in the SCRO who made the identification still insist that they were correct - I, for one, unlike the Executive, am prepared to keep an open mind until the matter is judicially resolved. (2) No criticism can be levelled at the Lord Advocate for the decision to prosecute McKie, that decision having clearly been made in good faith, on the basis of information provided by the SCRO. Of course it is now accepted by the Executive, at least, that that information was entirely and disastrously erroneous. (3) I make no criticism of the decision not to prosecute anyone in the SCRO - I have absolutely no reason to doubt that that decision was also made in good faith on the basis of the available information. I want to emphasise this - JUST BECAUSE A CRIME HAS BEEN COMMITTED IT DOES NOT MEAN THAT A PROSECUTION WILL FOLLOW. In other words, to state the converse, just because no-one has been prosecuted, it does not mean that no crime has been committed. The Lord Advocate is absolutely correct to insist on his absolute discretion in this field, and to insist, if he thinks it proper, on the confidentiality of the information provided to him as Prosecutor. Otherwise we end up with the decision making process in the hands of knobs like Bristow Muldoon or the editor of the Daily Record. But let me make this clear as well - just because the Lord Advocate decides not to prosecute it does not mean that all enquiries into the event should cease. Let me give an analogy - an employee embezzles a large sum of money from his employer and is reported to the Lord Advocate - the Lord Advocate decides (for whatever reason) not to prosecute - how can that possibly inhibit the employer from carrying out his own enquiries sufficient to sack the employee for embezzlement?. So, in this case, the Lord Advocate decides (for whatever reason) not to prosecute anyone in SCRO - it IS NOT interfering with the Lord Advocate's independence for a judicial or other public enqiry to look into the circumstances of what occurred. (4) As previously discussed, ad longam, the strength of fingerprint evidence worldwide for over a century has been its near infallibility. We know that there is nothing in human affairs which is completely infallible (not even the Pope). Mistakes can be made in even the best systems. Almost all jurisdictions worldwide deal with the possibility of human error in fingerprint identification by having the comparisons carried out by at least two experts, INDEPENDENTLY FROM EACH OTHER. The reasoning is that while it is possible for one person to make an error through tiredness, incompetence or whatever, it is virtually impossible for two people separately to make precisely the same error. Indeed that is the very principle which is an unshakeable cornerstone of our jurisprudence - all crucial facts in criminal cases MUST BE CORROBORATED - one witness is NOT enough (not even the Pope). In the McKie case the SCRO identification was made by at least 4 experts. The chances of all 4 making precisely the same error independently of each other are so remote as, in effect, to be impossible. So, let us not beat about the bush here. What McKie's case comes to is this - either the SCRO identification is correct - in which case why has Shirley McKie got three-quarters of a mill of our money? - or at least 4 experts in the SCRO conspired with each other to give perjured evidence of the most heinous sort, committing a breach of the trust reposed in them of the most unimaginable proportions, and bringing the whole Scottish system of justice into the most irretrievable disrepute. There is no middle ground. It would be nice if there were. Jack and Cathy try to find the middle ground by saying it was 'an honest mistake'. It cannot be an honest mistake, and THAT is the problem here. So, somebody needs to explain to the public why either (a)Ms McKie is unjustifiably incredibly rich after behaving very badly OR (b)People who conspired to commit an incredibly serious crime while employed by the Government not only escaped prosecution but are still employed by the executive carrying out similar work. So far as I am aware, no-one has proffered anything like a reasonable explanation of the foregoing, and that is why I remain so perturbed about this case. Until such an explanation is forthcoming I will continue to believe that a public enquiry is required. (and please bear in mind that Paddy Meehan who was wrongfully convicted of murder (coincidentally the murder of a woman named Ross in Ayrshire) was awarded £7500 compensation for his 7 years in prison - McKie gets 100 times that amount and she wasn't even convicted. Even allowing for inflation, it's very clear that Shirley has hit the jackpot. The quantum is hardly consistent with bona fide error.) Turning now to Lord Hodge's decision:- As we know, the case brought by McKie vs the Scottish Ministers was resolved at the last minute by way of a payment to McKie of £750,000 without any admission of liability by the Ministers. Lord Hodge still had to rule on the amount of expenses due to Ms McKie. He was ruling on the question of expenses of the litigation up to the point when it was resolved. It was maintained by Ms McKie that there should be a punitive element in the award of expenses to reflect the fact that the Scottish Ministers conducted themselves unreasonably in defending the action. Lord Hodge succinctly set out the history of the case as follows:- The pursuer was formerly a detective constable in Strathclyde Police. When in January 1997 a lady named Marion Ross ("the deceased") was found murdered in her home in Kilmarnock, the pursuer was appointed to be part of the police investigation team. A man named David Asbury was identified as a suspect. During the inquiry fingerprints were obtained including fingerprints on the bathroom doorframe of the deceased's house. The pursuer's fingerprints were checked against those on the doorframe in order to eliminate fingerprints from the murder inquiry. SCRO were and are responsible for analysing fingerprint evidence at the request of police officers from various police forces in Scotland. In this murder inquiry SCRO produced a report dated 10 April 1997 on the fingerprints discovered on the bathroom doorframe. In that report the SCRO officials stated that one of the fingerprints on that doorframe was that of the pursuer. From the outset the pursuer has emphatically contested this finding. She denied and continues to deny the allegation made by police officers investigating the murder that she had been in the deceased's house in the course of the investigation. The pursuer gave evidence at the trial of David Asbury in the High Court in Glasgow in May 1997. In the course of her evidence she denied that the fingerprint (numbered Y7) on the bathroom doorframe was her print. Mr Asbury was convicted of the murder of the deceased. An important part of the evidence against him was the discovery of what was alleged to be the deceased's fingerprint on a tin found in his house. The SCRO report linking this fingerprint (numbered QI2) with the deceased was prepared by some of the SCRO personnel who were concerned with the preparation of the report relating to the pursuer. After the trial of Mr Asbury and after further investigation the pursuer was arrested and charged with perjury. In substance the allegation was that she had been in the deceased's house in the course of the investigation, that the fingerprint Y7 was hers and that her evidence to the contrary was perjured. Between 21 April and 14 May 1999 the pursuer was tried at the High Court in Glasgow for perjury. The case against her was essentially the SCRO report of 10 April and three of the four officials of SCRO (who were at one stage the 3rd to 6th defenders in this action) who prepared the report gave evidence against her. The pursuer's counsel led evidence of two independent fingerprint experts from the United States of America, Mr Wertheim and Mr Grieve, that the fingerprint Y7 was not hers and that this would have been evident to any competent fingerprint expert. The jury acquitted her of the charge with a unanimous verdict of not guilty. LORD HODGE continued After the acquittal of the pursuer, Her Majesty's Inspectorate of Constabulary for Scotland ("HMIC") carried out an inspection of SCRO. To assist them they appointed two senior fingerprint experts, Messrs Rudrud and Zeelenberg, who produced a report dated 28 June 2000 setting out their findings. HMIC then produced a report ("the HMIC report") which was published on 14 September 2000 and which concluded that the fingerprint Y7 was not the pursuer's print. SUBSEQUENTLY on 22 June 2000 Mr Jim Wallace, the Deputy First Minister and Minister for Justice, revealed to the Scottish Parliament that the experts appointed by HMIC had opined that the fingerprint Y7 was not made by the pursuer. When asked to apologise to the pursuer, Mr Wallace stated: "I am sure that everyone in the Parliament recognises that this case has caused great distress to Shirley McKie and her family. I very much regret that and hope that the action we have taken to set up the [HMIC] inquiry and to announce the key finding at the earliest possible moment will reassure Shirley McKie and her family of our good intention to see that effective action is taken to remedy deficiencies in the present system". As if things were not bad enough on the McKie front, Lord Hodge continues - Mr Asbury appealed against his conviction for murder. The Crown Office instructed independent fingerprint experts from Denmark, Mr Rasmussen and Mr Rokkjaer, to give further advice on fingerprint QI2. In a report dated 7 August 2000 the Danish experts advised that the fingerprint did not match that of the deceased. In addition the American expert, Mr Wertheim, who had been instructed by the pursuer in her trial and by Mr Asbury in his appeal, gave a similar opinion. The Crown did not oppose Mr Asbury's appeal, taking the view that if the jury had heard this new evidence they might have acquitted Mr Asbury and that therefore there had been a miscarriage of justice. IN OTHER WORDS - THERE WERE APPARENTLY TWO MISIDENTIFICATIONS OF FINGERPRINTS IN THE SAME CASE Lord Hodge records that McKie's written pleadings contained the specific allegation that the 4 SCRO experts who had signed the fingerprint report "knew about the doubts expressed by their colleagues, that they knew that fingerprint Y7 did not match the pursuer's fingerprint yet they each signed the report of 10 April 1997, and that they deliberately cropped the photograph of fingerprint Y7 in their report and degraded an enhancement of the print to make it more obscure, all with the aim of securing the conviction of the pursuer". Lord Hodge records the progress of negotiations once Jim Wallace had accepted that the questioned print was not McKie's - "on 21 September 2005 in advance of which the pursuer's advisers tendered a detailed schedule of damages that valued her claim at approximately £1.2 million. The advisers of the Scottish Ministers produced their valuation only at the meeting. They valued the claim at £328,000, but the Scottish Ministers' legal team advised that any settlement would have to discount that figure for litigation risk. Negotiations did not progress. On 3 November 2005 solicitors for the Scottish Ministers wrote to the pursuer's solicitors setting out a detailed quantification of the value of her claim and an offer in settlement. On 21 December 2005 the Scottish Ministers lodged a tender for £500,000. The pursuer did not accept it. On the same day the pursuer's solicitors sent a valuation that valued her claim at £1.205 million and indicated that they would settle for £1.1 million. A second settlement meeting between counsel took place on 2 February 2006, shortly before the proof diet. In discussions at that meeting counsel for the Scottish Ministers indicated that an increased offer would be made and on the following day a tender for £600,000 was lodged. In response, the pursuer's counsel indicated for the first time that they would accept £750,000 as a settlement. In negotiations on the morning of the proof (7 February 2006), the Scottish Ministers raised their offer in stages to the figure of £750,000 at which the action settled. That offer was made expressly without any admission of liability". Lord Hodge refers to 'the Mackay and Robertson report' which was a report solicited by the Lord Advocate and thus confidential to him. That report has not been seen by the Scottish Ministers, though its authors were precognosed by McKie's advisers and said that they had advised the Crown authorities that in their opinion there had been criminal conduct on the part of certain officials of the SCRO during the prosecutions of both Mr Asbury and the pursuer. This conduct comprised misrepresentation of the facts and failure to disclose both the blind comparisons that were carried out within SCRO on 17 February 1997 and doubts expressed by five SCRO officers after those comparisons. Lord Hodge continues - "Having considered all the evidence the Lord Advocate decided in September 2001 that there was insufficient evidence to justify taking criminal proceedings. In explanation of that decision Mr Cullen (counsel for the Lord Advocate) pointed out that the Mackay and Robertson report was only part of the evidence that had been assembled and there were fingerprint experts independent of SCRO who agreed with the relevant SCRO officials that there had been no misidentification. In addition, even if there had been a misidentification, the Crown would have had to prove to the criminal standard of beyond reasonable doubt that the relevant SCRO officials in persisting in asserting their view that there was a correct identification had acted dishonestly and with criminal intent". Lord Hodge considers various other matters before making (to me) the following rather surprising remarks about fingerprint evidence generally "It was and is a matter of scientific opinion and it was and is a matter on which laymen may reach informed conclusions only with the assistance of expert evidence. If all the expert evidence had pointed to one conclusion, it would have been very difficult for any fair-minded person acting reasonably not to accept the conclusion of the experts. But it appears that there was no such unanimity among experts in this case". This is surprising to me because I know the matter has been examined by literally dozens, if not hundreds, of fingerprint experts from around the world - the only people who say that the print was McKie's are some from the SCRO and the other two gentlemen referred to below. Every other expert in the world says it is clearly not McKie's print. While it's not unanimous - the verdict is overwhelmingly in one direction. At any event, Lord Hodge continues "Mr Doherty (counsel for the Ministers) explained that, on the other side of the balance, the Scottish Ministers had obtained precognitions from the third to sixth defenders (ie the SCRO experts who signed the report) and also other relevant witnesses in SCRO who had confirmed the match of fingerprint Y7 with the pursuer's print. Those potential witnesses maintained their view that there was a match. In addition, independent fingerprint experts, Mr Malcolm Graham and Mr Peter Swann, had supported that view. I was informed that Mr Swann had initially been instructed as an expert by the defence in the pursuer's criminal trial but had not been used as a witness as his opinions did not assist the pursuer's case. Thus there was a body of expert evidence available to the Scottish Ministers which continued to assert that fingerprint Y7 was the pursuer's and thereby contradict the views expressed in the HMIC report. He submitted that, faced with competing bodies of expert evidence, the Scottish Ministers were entitled in their defence of the civil action for damages to take the stance of denying the pursuer's assertion that fingerprint Y7 was not her print and thereby requiring the pursuer to prove that assertion. They took the decision in mid 2005 to admit that fingerprint Y7 was not the pursuer's print on consideration of the balance of expert evidence including the evidence that Mr MacLeod had given them." So how does all this help us or otherwise? Well, to me it simply reinforces the fact that the Executive's explanation of 'honest mistake' is utterly untenable - it is so untenable that it in fact amounts to a lie. Those who work in the courts know that occasionally, as part of negotiated settlements, one or both sides has to accept as a fact something which they don't actually believe, and which in fact is very probably a lie. Here's an example from the criminal forum - accused is charged with repeatedly having incestuous intercourse with his daughter - the evidence comes from the daughter that the accused repeatedly raped her over a period of years - the only corroboration comes from the fact that she was eventually impregnated by him and DNA testing of the foetus confirms he's the father. The accused offers to plead guilty to one single act of intercourse - that is all the prosecutor can prove - the prosecutor doesn't believe it but is helpless and has to accept it. Both sides then parade a fiction before the court that only one act of incest occurred. In the McKie case the Executive had a dilemma. The overwhelming balance of the evidence clearly indicated that the print was not McKie's - but their employees, their trusted fingerprint experts, were still maintaining that the print was McKie's. The way out was to pay up but without accepting liability - a course of action which makes eminent sense to lawyers - the lawyer can tell the court that it was 'all an honest mistake' (or in the favoured parlance of this blog 'a bit of a game of two halves'). The court is well used to hearing this kind of fairy story and the lawyers are well versed in telling them. Meanwhile, outside the court, in the real world, people don't believe fairy stories. C'mon Jack - It was all an honest mistake. Listen to yourself, for Christ's sake. How the hell can it be an honest mistake? Stop listening to the shite which the in-house lawyers are feeding you and think for yourself. It's still not too late to do the right thing and order a comprehensive public judicial enquiry. Something very wrong happened in Shirley McKie's case - and in the associated murder trial against Asbury - no proper explanation of what that was has ever been given. The public are entitled to something better than the cover-up which they are getting.