15.1. Ms McKie gave evidence on 11 May 1999.1 An aspect of Mr Murphy's cross-examination of Ms McKie focussed on whether any other experts apart from Mr Wertheim and Mr Grieve had examined Y7 for the defence.
15.2. The relevant part of the transcript2 records Mr Murphy's questions and Ms McKie's answers as follows:
Q "Can you tell the ladies and gentlemen how many people were asked to look at the print Y7 for the Defence before Mr Wertheim?
A "I have no idea."
Q "Well, was it one, was it more than one?
A "You will need to ask my Counsel about that."
Q "Is this not a matter that you would have been anxious to know about?
A "Mr Findlay assured me he would do the job properly and to trust him and that is what I did.".....
Q "Do you seriously not know whether the print was shown to anyone other than Mr Wertheim?"
A "I don't know who has examined the fingerprint."
Q "Do you know if anybody has?"
A "I don't know who has."
Q "Do you know if anybody has, regardless of their identity?"
A "I don't know. You would need to ask my solicitor that."...
Q "Well did you not ask your solicitors how things were progressing?"
Q "And there was no discussion at any stage of other people looking at the fingerprint?"
A "Well there was discussion about, obviously the fingerprint, people looking at the fingerprint but they don't discuss with me day-to-day who, what and why."
Q "So you don't know whether or not anybody else looked at the print, is that your evidence?"
A "No I don't know."
15.3. The issue arises in particular in the context of the last question. "So you do not know whether or not anybody else looked at the print, is that your evidence?" The meaning of this is plain. Ms McKie's response was that she did not know whether anybody else looked at the print apart from Mr Wertheim.
15.4. In this regard it has been alleged that Ms McKie gave false answers to Mr Murphy.3
Lack of criticism from others
15.5. Ms McKie noted that it had never been suggested to her by her counsel, her solicitors or anyone else after the case that she had been untruthful.4
15.6. Mr McKie also noted that the Lord Advocate and other relevant authorities had been informed of the allegation. They had taken no action.5
15.7. The Inquiry must reach its own conclusions on these matters, and the fact that other bodies or persons may have considered them is not of relevance.
Ms McKie's knowledge at the time of the trial
15.8. Ms McKie was aware, before she gave evidence, that Mr Swann had looked at Y7 and concluded that Y7 was made by her. That is consistent with the unequivocal evidence in her statement to the Mackay enquiry,6 which Ms McKie generally adopted in her statement to the Inquiry.7
15.9. The answer to the last quoted question of Mr Murphy was, accordingly, wrong.
15.10. Both Ms McKie and Mr McKie put forward various explanations for the response to Mr Murphy.
Ms McKie's medical position
15.11. Ms McKie explained that during the trial and in the lead up to the trial she was receiving medical help for stress and depression and at times felt suicidal.8
15.12. Nevertheless Ms McKie decided to give evidence at the trial although she was under no obligation to do so. She was under an obligation to tell the truth so this does not provide an explanation for her response.
Ms McKie's lack of involvement in preparation
15.13. Ms McKie said that due to the state of her health she had limited involvement in the preparation of her defence and, for example, was unaware of the number of experts consulted by Mr McKie. She was even unaware that the mark had been shown to Mr Grieve.9 Mr McKie explained that he had been mandated to act on Ms McKie's behalf in all aspects of the case10 and that Ms McKie was largely unaware of what action had been taken in respect of experts other than Mr Swann and Mr Wertheim, and even with them her knowledge was extremely limited.11
15.14. It is accepted that Ms McKie was unaware of many aspects of preparation for her trial, including the number of people who examined Y7. This provides a satisfactory explanation for her response to some of Mr Murphy's questions but it does not explain her evidence that she did not know if anybody had examined the print because she knew that at least Mr Swann had done so.
Confusing nature of the questions
15.15. Mr McKie suggested that Ms McKie was confused about the line of questioning by Mr Murphy, in that she thought it was about the number of experts who had examined the mark.12
15.16. It has been accepted that she did not know how many experts had looked at the mark. Nonetheless, Mr Murphy's questions were clear and he asked twice if she knew of anybody else (i.e. other than Mr Wertheim). It is difficult to see how Ms McKie could have been confused.
Lack of reference to Mr Swann by name by Mr Murphy and Mr Findlay
15.17. Ms McKie said that she was unclear why Mr Murphy did not refer to Mr Swann by name. She added that the fact that Mr Swann was not referred to by Mr Murphy (or Mr Findlay) led her to think that something else was being referred to. If Mr Murphy had raised Mr Swann she would have been obliged to discuss this in evidence.13 She stated that she could only presume that Mr Murphy knew she had told the truth, otherwise he would have raised it in evidence. Mr McKie's interpretation of the same point was that Ms McKie "effectively found herself caught up in a tactical battle in which, for their own reasons, they (Mr Murphy and Mr Findlay) did not wish to mention Mr Swann's name."14
15.18. It was most unlikely that an experienced defence counsel such as Mr Findlay would have referred to Mr Swann in these circumstances. He was under no obligation to bring out damaging evidence; the burden of proof was on the Crown. The mention of his name could only have damaged the defence case, as Mr Swann agreed with SCRO that Y7 was made by Ms McKie.
15.19. The extent of Mr Murphy's knowledge of Mr Swann does require discussion when considering the significance of the answers given by Ms McKie but whether or not Mr Murphy was aware of Mr Swann is of limited relevance to the issue whether Ms McKie answered Mr Murphy's questions correctly. Mr Murphy's questions were plain and easily understood. The failure to name Mr Swann could not have misled Ms McKie when the questions were directed to knowledge of anybody regardless of identity.
Instructions from or coaching by Mr Findlay
15.20. Ms McKie said that she had been told to refer all matters relating to the instruction of experts to Mr Findlay and that is what she sought to do.15 Mr McKie said that Ms McKie was under express instructions from Mr Findlay to refer any questions regarding experts to him. In particular, Mr McKie stated that at some point shortly before the trial Mr McKie and Ms McKie met with Mr Findlay. At that meeting Mr Findlay "instructed that when being cross-examined on matters related to Mr Swann and the other fingerprint experts she was to refer such matters back to him."16 He also highlighted a passage in Mr Findlay's re-examination of Ms McKie in which, Mr McKie said, Mr Findlay underlined that instruction.17
15.21. Mr Findlay provided a statement to the Inquiry on the basis that it was as accurate as his limited recollection would allow. He had, at best, a very vague recollection of his involvement in the case.18 Mr Findlay said that he met with Mr McKie on one occasion. Mr Findlay asked Mr McKie to leave the meeting. He said it was a fairly acrimonious meeting because Mr McKie wanted to take part in preparations for the trial. Mr Findlay made it plain that Mr McKie would have no part in his preparations.19 On this basis it is most doubtful that Mr McKie attended the meeting at which Mr Findlay is alleged to have given this advice and therefore Mr McKie's account in this regard is of questionable reliability.
15.22. Mr Findlay said that he did not coach Ms McKie in any way and that coaching would be counter-productive.20
15.23. Mr Findlay told the Inquiry about the general advice he would give any witness. He would advise a witness to speak slowly and dress comfortably. He would tell witnesses that if they did not understand a question they should say so. He would advise a witness not to guess or speculate. He would advise a witness not to answer questions which were not within their knowledge. He would advise witnesses to listen to questions carefully and answer questions truthfully. He had no doubt he would have given Ms McKie all or some of such advice.21
15.24. Mr Findlay said that he may well have advised her that if asked about the preparations for the trial she should refer such matters to him. This, he explained, was simply a variation of the advice set out above.22 This advice was doubtless provided on the basis that it was Mr Findlay's practice not to go into the specifics of preparation for trial with the clients or witnesses.23 It would follow from that practice that Mr Findlay's clients would not know a great deal about his preparations and that Mr Findlay's advice to refer such matters to him should be viewed in this context. This is confirmed where, in re-examination of Ms McKie at her trial, Mr Findlay asked her "¿you were also told that what went on in the preparation of the case was not your concern. We would deal with that because your job would be to come into this Court and simply to give evidence and not to worry yourself or be influenced by anything else that went on?" and Ms McKie replied "That is correct."24
15.25. As to the suggestion that he advised Ms McKie that if asked about the defence experts she should refer the matter to him, he did not recall such a conversation. He had no recollection of the specifics of the conversation with Ms McKie.
15.26. He said that if a witness asked him what to say if asked about a specific matter within the knowledge of the witness then he would tell the witness that they should answer truthfully and within the limits of the witness's knowledge. He said that if Ms McKie had contacted Mr Wertheim herself, and she was asked about how she came to be in touch with Mr Wertheim he would tell her that she should answer such questions truthfully and tell the court what she had done to contact him.25
15.27. There is nothing in Mr Findlay's account that suggests that he advised Ms McKie to answer a question to which she knew the answer in a less than candid and correct way. It is inherently improbable that Mr Findlay would have done so. In particular there is no evidence, apart from that of Mr McKie and Ms McKie, that Mr Findlay "instructed that when being cross-examined on matters related to Mr Swann and the other fingerprint experts she was to refer such matters back to him." As noted in this regard Mr McKie's evidence is of doubtful reliability because he may not have been at the consultation.
15.28. The question that then arises is whether any of Mr Findlay's advice could have inadvertently led Ms McKie to answer Mr Murphy's question in the way that she did. This must be viewed in the wider context. Ms McKie narrated her career in her statement to Mr Mackay's enquiry,26 which she adopted in her statement to the Inquiry. She was an experienced and able police officer of much promise. It is reasonable to assume that she was well aware of the requirements imposed upon those giving evidence in court, which is to tell the whole truth. In these circumstances it is unlikely that she was inadvertently misled by anything Mr Findlay said. There is no reason to suppose that Ms McKie did not understand her duty as a witness.
Allegation that Mr Findlay coached Ms McKie
15.29. It has been alleged that Mr Findlay coached Ms McKie as to how she should answer if the issue of Mr Swann's evidence was raised during the trial.27
15.30. Mr Findlay rejected allegations that he coached Ms McKie. He set out the type of advice he would give to witnesses. None of this can be interpreted as coaching. As Mr Findlay explained, coaching a witness carries risks, since if a witness had been coached in any way it would become immediately obvious to a jury.28
15.31. There is no proper foundation to any allegations that Mr Findlay coached Ms McKie, and I find that Mr Findlay did not do so.
Allegation that Mr Findlay instructed Ms McKie to refer certain matters to him
15.32. It is probable that Mr Findlay did advise Ms McKie that if she was asked about the preparations for her trial she should refer this to him. That was proper advice insofar as the information was outwith her knowledge. It does not provide an excuse for withholding information that was within her knowledge.
15.33. I find that Mr Findlay did not encourage or in any way advise Ms McKie to give evidence that was untrue or not the whole truth.
15.34. Ms McKie was aware of Mr Swann's involvement. Mr Murphy's questions were clear. When asked "Do you know if anybody has?" Ms McKie responded "I do not know who has." When asked: "So you do not know whether or not anybody else looked at the print, is that your evidence?" Ms McKie's answer was "No I do not know." Those answers were not correct. The only frank response to these questions would have been to answer, at least, that she did know of someone. Where that answer might have led, whether or not she also volunteered the name of Mr Swann as the person concerned, is a separate matter.
15.35. Ms McKie is criticised for answering Mr Murphy's question in a manner that was wrong.
15.36. Mr Swann argued that if, in response to those questions, Ms McKie had admitted his involvement and also admitted that he had identified Y7 as her left thumb print she would have been convicted of perjury.29 That conclusion proceeds on a series of contentious assumptions that must be considered. Apart from anything else, it assumes that a correct answer to the restricted question asked by Mr Murphy (had anybody else, other than Mr Wertheim, examined the mark for the defence) would have led ultimately to disclosure of the conclusion reached by Mr Swann. It also assumes that that conclusion would have been accepted by the jury.
15.37. In this context it is pertinent to note that Mr Murphy did ask a similar question in his cross-examination of Mr Wertheim and received an entirely correct reply from Mr Wertheim:
"¿ are you aware of whether or not you were the first person asked to carry out the exercise that you were asked to carry out? - I am aware that there was another examiner who reviewed the case prior to me."30
Mr Murphy did not pursue that answer and immediately passed on to other matters. Mr Murphy asked neither the name of that examiner nor what conclusion that examiner had reached. It is readily understandable that Mr Murphy did not put any such question to Mr Wertheim. Disclosure only of the name of the examiner would have added nothing to the Crown case; and any question to Mr Wertheim seeking to go further and to obtain disclosure of the conclusion reached by the previous examiner would have been objectionable on the grounds that it sought to introduce hearsay evidence.
15.38. One can only speculate whether Mr Murphy would have asked any follow-up questions had Ms McKie answered the questions correctly. Even if he had asked follow-up questions there is every reason to doubt the assumption that that would have culminated in Mr Swann's opinion on the identification of Y7 coming out in evidence. On the contrary, a question to Ms McKie asking what conclusion Mr Swann had reached would have been objectionable on the grounds of hearsay. In order to put Mr Swann's opinion to the jury the Crown would have had to have led him as a witness; but by the time that Ms McKie was giving evidence it would have been too late for the Crown to have done so, the Crown having closed its case.
15.39. There are tight controls on the ability of prosecution and defence to lead additional evidence after the closure of their respective cases. Section 269 of the Criminal Procedure (Scotland) Act 1995, which allows the prosecution to lead additional evidence to contradict evidence given by any defence witness, is of doubtful relevance to the present issue because merely to establish that Ms McKie did know of the involvement of Mr Swann would not have advanced the Crown case. The Crown would have had to introduce Mr Swann as a late witness. The statutory provision relating to that scenario is section 268 of the 1995 Act which allows the judge to permit the leading of additional evidence if the criteria in sub-section (2) can be satisfied:
"Permission shall only be granted under subsection (1) above where the judge-
(a) considers that the additional evidence is prima facie material; and
(b) accepts that at the commencement of the trial either-
(i) the additional evidence was not available and could not reasonably have been made available; or
(ii) the materiality of such additional evidence could not reasonably have been foreseen by the party."
15.40. The two alternatives under sub-section (2)(b) focus attention on the prosecution's state of knowledge prior to the trial. That is a matter that the Inquiry has considered.
15.41. Close attention was paid to the stage at which Mr Murphy personally learned of Mr Swann's involvement but that is not the only consideration. It is relevant to consider knowledge on the part of the prosecution as a whole. The evidence available to the Inquiry is consistent with the proposition that some information of Mr Swann's involvement may have been available to various people prior to the trial. It has proved difficult to be precise about who knew what at specific dates, which is hardly surprising given that witnesses were being asked to recall detail dating back more than ten years. Nonetheless, it was the evidence of Mrs Greaves that at some point prior to the trial she had learned from a remark made by Ms McCracken of Levy & McRae that Mr Swann had confirmed the SCRO identification. By this stage Mrs Greaves was no longer directly involved in the case31 and, unaware of its possible relevance, she did not pass this information on to Mr Murphy.32
15.42. Mr Murphy could not remember precisely when he became aware of Mr Swann's involvement.33 He said that he was not aware of Mr Swann's involvement before the trial but he was "fairly certain" that he knew of Mr Swann's involvement by the end of the trial. As to his state of knowledge when he was questioning Ms McKie, he said:
"¿ I do not think I knew of Peter Swann's involvement, or had no way of verifying it, at the time I was cross-examining Ms McKie, as I have couched my questions to her on that point in general terms."34
That includes two alternatives, one of which is that Mr Murphy had some possible awareness of Mr Swann but had not had the relevant facts verified to his satisfaction.
15.43. Mr Murphy's recollection was that when he spoke to Mr MacPherson and Mr Stewart before the trial they indicated that there was a rumour that the defence had got someone else to look at the mark, but that they did not know who it was. This was probably during the second meeting at the High Court. He was fairly sure that he asked them to let him know if the identity of the examiner came to light.35 Mr Stewart's evidence to the Inquiry implied that the identity of Mr Swann may have become known prior to the trial because he expressed surprise that Mr Swann was not called as a witness: "The AD seemed to think it was not the way prosecutions were run by calling last minute witnesses."36 In any event, at some stage Mr Murphy came into possession of a note37 which listed three names of people SCRO thought potentially38 had looked at the mark: Peter Swann; Mike Heron; and Malcolm Johnson. The first two names were not in Mr Murphy's handwriting.39
15.44. It is not clear when that note was given to Mr Murphy but he must have had some knowledge of Mr Swann by 7 May 1999 because he referred to him in his questioning of Mr MacPherson in court that day. The transcript recorded Mr MacPherson explaining that independent fingerprint examiners act as defence experts. Mr Murphy asked Mr MacPherson "Have you heard of a Mr Swann doing such work in Scotland." Mr MacPherson replied "yes."40 Mr Murphy was unclear whether (a) he was only aware at that stage that Mr Swann carried out this type of work, as opposed to knowing that he had been involved specifically in assisting Ms McKie41 or (b) he may have been aware that Mr Swann had possibly been involved, but he had no confirmation of this fact.42
15.45. There is mention of Mr Swann in the minute of a meeting after the trial that Mr Murphy attended at SCRO on 20 May 1999:43
"Mr Murphy confirmed that an independent fingerprint expert, PETER SWANN, had looked at the evidence and had agreed with the findings of the SCRO experts.
Mr Murphy had made contact with Mr Swann, who confirmed that his findings were similar to SCRO's but he was unable to trace another two independent experts who had reportedly reached similar findings. This additional evidence was only noted after the trial had commenced and, therefore, it was not possible to introduce an additional witness at such a late stage.
Mr Murphy had put it to Miss McKie that she knew of other experts having examined the print but she denied this. Therefore, an attempt to bring in Mr Swann through other means also proved impossible. Mr Murphy added that he now believes that McKie [sic] did not have such knowledge."
15.46. Mr Murphy said that the minute was significantly inaccurate in that he had never as far as he knew spoken to Mr Swann and he did not understand what the reference to the other two experts was.44 It must have been that there had been some contact on the part of the prosecution with Mr Swann but Mr Murphy did not know when this was or who made the contact.45
15.47. The explanation that another member of the prosecution team, and not Mr Murphy, had been in contact with Mr Swann is consistent with Mr Swann's evidence. He said that at some point someone from COPFS made contact with him.46 Though he could not be more specific because he was not notified of the date of the trial, he suspected that the contact was before or during the trial. An unnamed procurator fiscal from the Glasgow office phoned him and asked a series of yes/no questions which Mr Swann answered only when the fiscal assured him of the legality of doing so. As far as Mr Swann could recall the questions asked him whether he had been instructed in the McKie case, if he had examined the mark and prepared and submitted a report. There was no mention of him being asked what conclusion he had reached.
15.48. After Mr Murphy gave evidence at the Inquiry hearing Crown Office made available to the Inquiry a note47 that Mr Murphy wrote on 3 June 1999 and it was sent to him for comment.48 Access to the contemporaneous note did not assist Mr Murphy's recollection of the sequence of events49 but one passage in it is of interest:
"Before trial I received information that the defence had earlier had the print examined by other experts who had confirmed the SCRO identification. I asked that this be investigated. When the trial began the position was nothing more than that SCRO officers had heard gossip that this had happened and there was no way of confirming who the experts had been. One name was confirmed some time after the trial had started, by which time it was too late to cite the person concerned. I cross-examined Shirley McKie about this in an effort to set up rebuttal admission of the evidence, but her position was that she had not been kept informed of the various steps taken by her representatives and that she was unaware that this had been done." (Emphasis added)
15.49. It is not readily apparent what was meant by "an effort to set up rebuttal admission of the evidence." Nonetheless, it is of interest that Mr Murphy's assessment was that by the time that he received confirmation of the name it would have been too late to cite the person concerned. All the information available to the Inquiry tends to confirm that that assessment was correct.50 At whatever point Mr Swann's name was confirmed, it was too late to lead him as a witness at the trial.
15.50. In the circumstances I conclude that it is highly unlikely that a correct answer by Ms McKie to Mr Murphy's questions about her knowledge of the involvement of examiners other than Mr Wertheim would have had any bearing on the outcome of the trial. Even if she had gone as far as naming Mr Swann, the defence could have objected on the ground of hearsay to any question being put to Ms McKie about his conclusion on Y7 and the prosecution could not at that late stage have introduced Mr Swann as a witness at the trial.
15.51. I do not consider that the fact that I have found that Ms McKie was less than accurate in the course of her trial as to the involvement of Mr Swann should necessarily lead me to approach with scepticism her earlier and consistent denial that she entered the house in Irvine Road beyond the porch area.
1. SG_0294 and CO_0214 sections 85 and 86
2. SG_0294 page 87ff. As in Chapter 12, page references in the footnotes in this chapter are to the typed page numbers in the transcript which differ from the pdf page numbers in the electronic copies.
3. FI_0149 para 16 Inquiry Witness Statement of Mr Swann
4. FI_0071 pdf page 18 Inquiry Witness Statement of Ms McKie
5. FI_0181 para 96 Inquiry Witness Statement (Part 1) of Mr McKie
6. CO_2219 pdf pages 16-17 Mackay enquiry statement of Ms McKie
7. FI_0071 paras 6-8 Inquiry Witness Statement of Ms McKie
8. FI_0071 pdf pages 17-18 Inquiry Witness Statement of Ms McKie
9. FI_0071 pdf pages 17-18 Inquiry Witness Statement of Ms McKie
10. FI_0181 para 96b Inquiry Witness Statement (Part 1) of Mr McKie
11. FI_0181 para 96c Inquiry Witness Statement (Part 1) of Mr McKie
12. FI_0181 para 96b Inquiry Witness Statement (Part 1) of Mr McKie
13. FI_0071 pdf pages 17-18 Inquiry Witness Statement of Ms McKie
14. FI_0181 para 96a Inquiry Witness Statement (Part 1) of Mr McKie
15. FI_0071 pdf pages 17-18 Inquiry Witness Statement of Ms McKie
16. FI_0181 para 69 Inquiry Witness Statement (Part 1)of Mr McKie
17. FI_0181 paras 96d,120-121 Inquiry Witness Statement (Part 1) of Mr McKie
18. FI_0200 para 3 Inquiry Witness Statement of Mr Findlay
19. FI_0200 paras 33-35 Inquiry Witness Statement of Mr Findlay
20. FI_0200 para 19 Inquiry Witness Statement of Mr Findlay
21. FI_0200 paras 16-27 Inquiry Witness Statement of Mr Findlay
22. FI_0200 para 27 Inquiry Witness Statement of Mr Findlay
23. FI_0200 para 9 Inquiry Witness Statement of Mr Findlay
24. SG_0531 page 121
25. FI_0200 para 30 Inquiry Witness Statement of Mr Findlay
26. CO_2219 Mackay enquiry statement of Ms McKie
27. FI_0149 pdf page 44 Inquiry Witness Statement of Mr Swann
28. FI_0200 para 20 Inquiry Witness Statement of Mr Findlay
29. FI_0149 pdf page 44 Inquiry Witness Statement of Mr Swann
30. SG_0530 pages 291-292 - trial transcript 12 May 1999
31. See Chapter 11 para 99
32. Mrs Greaves 1 July pages 112-113 (and see also pages 100-102 and 119-120)
34. FI_0070 para 28 Inquiry Witness Statement of Sheriff Murphy
35. Sheriff Murphy 25 June page 104
36. FI_0036 para 268 Inquiry Witness Statement of Mr Stewart
38. Sheriff Murphy 25 June page 114
39. Sheriff Murphy 25 June pages 105-106
40. SG_0529 pages 61-62
41. Sheriff Murphy 25 June page 113
42. Sheriff Murphy 25 June page 114
44. FI_0070 para 33 Inquiry Witness Statement of Sheriff Murphy
45. FI_0070 para 35 Inquiry Witness Statement of Sheriff Murphy
46. FI_0149 pdf page 28 Inquiry Witness Statement of Mr Swann
50. See para 39ff above