Introduction
14.1. The mark designated Y7 and identified during the murder investigation as belonging to Ms Shirley McKie was found in Miss Ross's house on the door-frame of a downstairs bathroom.
14.2. Whether mark Y7 was correctly identified as Ms McKie's requires an assessment of the fingerprint evidence. Fingerprint evidence has, however, to be assessed along with all other relevant evidence. In this case that includes any evidence as to whether Ms McKie had an opportunity to deposit mark Y7.
14.3. From the outset Ms McKie denied having gone beyond the porch at the entrance to the house and therefore disputed that she had placed her fingerprint on the door-frame. Ms McKie maintained her denial and she was prosecuted for perjury: Her Majesty's Advocate v McKie. The situation was summarised by Lord Johnston, the trial judge, when he said in his charge to the jury,1 if this was Ms McKie's fingerprint "how did it get there and when did it get there?"
14.4. Whether there was evidence of Ms McKie's presence in the house at a point beyond the entrance porch could be relevant to my consideration of the fingerprint evidence. For that reason I investigated what evidence, if any, there was as to her presence there.
14.5. According to Lord Johnston, in his charge to the jury, the Crown's suggestion was that Ms McKie must have slipped into the house some time on the Saturday after Miss Ross's body was found (i.e. on 11 January) and, "contrary to any logist's evidence, implanted the fingerprint."2 Over the years rumour had circulated as to Ms McKie's presence in the house, and suggestions been made that there might be an individual or individuals who would be in a position to provide evidence that she had been in the house during the murder investigation. I sought to investigate what basis, if any, there was for such rumour and to secure evidence from witnesses which might either substantiate or dispel it. A number of pieces of information potentially relevant to the investigation of that rumour were brought to the attention of the Inquiry by Mr Brown, who had held until his retirement in 1983 the rank of detective chief inspector in Strathclyde Police.
Ms McKie
14.6. Ms McKie joined Strathclyde Police in September 1986 and for the next four and a half years she was based in Irvine as a uniformed officer. During this time she passed the examinations required for promotion to the ranks of sergeant and inspector. At the end of this period she became a CID aide and then applied to be an officer in the CID. In 1991 she moved to a female and child abuse unit in Kilmarnock where she worked in a group with Mr Shields. After two years she asked to be moved from this work as she found the focus of it too narrow and she was appointed as a detective constable at Kilmarnock to serve in a group of two detective constables together with Mr Shields. On an eight week CID course she was second of 20 students, and she gained an HNC in Police Studies, a two-year course, with distinction.3
14.7. In late 1996 Ms McKie had been on secondment working with a team teaching a new staff appraisal system but training was suspended over the festive season and she came back to post in the CID.4
14.8. Ms McKie was part of the murder investigation team from 9 to 14 January. To facilitate the needs of the division she was allocated duties away from the investigation from 15 January onwards and engaged on normal routine CID enquiries. Her colleague Mr Shields indicated that he thought that this would be because she was due to return to her training secondment.5
14.9. Ms McKie and her police partner, Mr Shields, undertook enquiries for the investigation during this period, and where those enquiries might have presented a potential opportunity for Ms McKie to enter the house, I have considered them in detail.
9 January 1997 - enquiries by Mr Shields and Ms McKie
14.10. On 9 January Ms McKie reported for duty at Kilmarnock at 10:00 and began a shift that was due to end at 18:00. She was told that the body of Marion Ross had been found at 43 Irvine Road and that the circumstances were suspicious.6
14.11. Mr Shields and Ms McKie were given the task of establishing from Mr Kinnaird which doors he had found locked or unlocked on entering the house. They went to Mr Kinnaird's place of work where they interviewed him. They were then given an action to take Mr Kinnaird to the locus and they arranged to meet him there later to go through with him the way in which he had entered the house.
14.12. Ms McKie explained to the Inquiry that the keys for 43 Irvine Road were needed to show to Mr Kinnaird.7 At 17:40 she asked the productions officer Mr Stevens at the office for the set of keys and this was noted by him in the log.8 In his statement to the Inquiry he said his recollection was that Ms McKie told him that she could not get her head round the layout of the locus and the boss (Mr Heath) had said that she could go and have a look around.9
14.13. The reference to Ms McKie not being able to get her head round the layout did not appear in any of three earlier statements that Mr Stevens made and he said this was because it was only a casual conversation. He was having the same problem because he was not allowed into the premises and he thought that Ms McKie was probably agreeing with him.10 At her trial Ms McKie is recorded as saying that she had looked at both the photographs and the video of the locus but these did not give an idea of size within the house.11
14.14. Ms McKie said the instruction was cancelled quite quickly; they were not to take Mr Kinnaird to the locus.12 Mr Stevens recalled that about ten minutes after she collected the keys she returned, said that the boss had changed his mind and handed them back.13
14.15. At 18:50 Mr Shields and Ms McKie attended Mr Kinnaird's home and during their visit Mr Kinnaird recounted to them a concern he had had about only having one key when he found that the third door into the house had two locks.14 At around 19:45 Ms McKie went with Mr Shields to 43 Irvine Road in order to gain a better understanding of the account that Mr Kinnaird had just given them as to which front entrance doors he had found locked and unlocked and of the way in which he had entered the house.15
14.16. In her statement to the Inquiry Ms McKie said that they went into the porch and stood on the metal footplates and looked at the entrance doors and discussed which doors Mr Kinnaird had been referring to when he had spoken to them earlier.16
14.17. Mr Shields confirmed in his evidence that neither of them went any further into the house than the porch and he said that Ms McKie stood on the metal plate behind him.17 Ms McKie estimated that they were in the porch for about two minutes.
14.18. Ms McKie no longer remembered the identity of the female police officer who was present and keeping the log though at the time she recognised the officer.18
14.19. According to the log the police officer on duty at that time was PC Stirling. In her Mackay statement Ms Stirling19 recalled that Mr Shields and Ms McKie arrived at the locus having come out of the house next door. Mr Shields came into the porch and looked into the hallway. He said that he had been speaking with the person who found the body and that he was trying to establish which doors had been open at that time. Ms McKie leant into the porch, setting one foot on the porch floor, and tried to look into the hallway but she would not have managed this as the distance between the porch door and the door leading into the house was too great. She did not venture any further. They remained a few minutes before leaving. Their visit is recorded in the log as between 19:45 and 19:47, and "arrives locus, enters porch only".20
14.20. There are three contemporaneous police witness statements in the name of Ms McKie: dated 17 January,21 21 January22 and 14 February 1997.23
14.21. Two of those statements (17 and 21 January) were actually written by Mr Shields. This was confirmed in evidence by Mr Shields.24 He said that the HOLMES action to submit a statement came to him as he was still engaged in the investigation and Ms McKie had left it. He found it easier to write both statements as he regarded it as an administrative matter. The statement of 17 January arose because their names appeared in the log and it covered the reason for being there. He said that he would have let her know that he had done so and given her a copy of the statement of 17 January. Ms McKie stated that she had not seen the document before.25
14.22. The statements of 17 January and 14 February addressed the visit to the house on 9 January. Both statements recorded that Ms McKie and Mr Shields interviewed Mr Kinnaird at his own home before going to the house at 19:45. In the statement of 17 January Mr Shields wrote that Ms McKie entered the porch area in order to establish clearly the doors referred to by the witness, remained within the porch area, touched no surfaces within the house and stood on the metal plates. In the statement of 14 February that Ms McKie herself wrote she said that neither she nor Mr Shields went further in to the house than the porch. She referred to metal stepping plates in the porch and said that Mr Shields stood on one in front of her. They left after approximately two minutes.26 Her statement to the Mackay enquiry on 28 July 200028 was in the same terms. In her statement to the Inquiry of 2 June 200928 she repeated that they went no further than the porch and stood on the metal plates but she could no longer remember if Mr Shields was in front of her or behind her when they were at the locus.
14.23. Ms McKie did not know Miss Ross and stated that she had not been to 43 Irvine Road before 9 January 1997.29
10 January
14.24. Ms McKie had no recollection of the duties that she carried out on 10 January 1997.30 For the time that she was on duty between 9 January and 14 January inclusive she said that she was with Mr Shields save during some refreshment and other short breaks.31 Mr Shields could not remember what duties he and Ms McKie undertook on 10 January. He said that they did not attend the locus, but they would have been working together.32
14.25. On the morning of 10 January various individuals were at the house, including Mr Fairley, Mr Hogg, Mr Thurley, Mr Moffat, and Mr Ferguson. Mr Fairley was there from 9:05 to 10:40.33 The purpose of this further forensic examination was to examine the areas of doors and door-frames for microscopic traces of blood, which may have been brought up by the fingerprint examination.34
14.26. Mr Kerr said that on 10 January two members of the serious crime squad were in the house and were not wearing protective clothing. Mr Thurley confirmed that officers from the Serious Crime Squad had asked to look round the scene that day. It was not an unusual request and though he could not now recall whether they were in protective clothing, he would have expected them to be.35 Mr Kerr told the Inquiry how he found two of these individuals in the house and had to ask them to leave.36 Mr Thurley commented that the log-keepers should not have allowed them in if they were not in appropriate clothing, but the officers would have been more senior than the log-keeper and the latter might not have been in a position to stop them entering.37
At the locus on 11 January
14.27. On Saturday 11 January the office manager in the police incident room, Inspector James Thomson, asked Mr Shields and Ms McKie to go to 43 Irvine Road at around 17:45 to collect the log. Ms McKie brought the log to the police office where she copied it and handed a photocopy to the incident room. She then returned the original to the locus. The crime scene log did not record this visit, nor did HOLMES.
14.28. On both journeys Ms McKie was accompanied by Mr Shields who stayed in the car while she collected and returned the log to Irvine Road. The weather was very wet and windy. Ms McKie stated that she went no further than just inside the porch and was there for no more than a matter of seconds. She had no recollection of seeing Mr Kerr at the scene on that date.38
14.29. Mr Lees was on duty as log-keeper at 43 Irvine Road when Ms McKie collected the log and returned it. He said that he was seated in the porch facing directly out onto Irvine Road.39 As soon as anyone stepped over the wooden threshold, which formed part of the outer door-frame,40 he regarded them as having entered the locus.41
14.30. Mr Lees said that when she arrived Ms McKie opened the porch door and while still standing on a step below the wooden threshold told him that she needed to have the log to get it photocopied.42 It was windy and he told her she could come in but she said no and added words to the effect that this was because of the risk of cross-contamination.43 He gave her the log and she returned it not much later. He did not record her as being there on either occasion as she did not cross the threshold and he said that he was certain that she did not do so.44 On the first occasion he said he had invited her into the porch because the wind was blowing the blinds about and the log papers would start being blown around.45 He remembered her remark about cross-contamination as being a reasonable observation for her to make.46 On the second occasion she just handed him the log and there was virtually no conversation.47
14.31. The evidence of Mr Lees was at variance with that of Mr Kerr and Ms McKie about certain aspects of events on Saturday 11 January.
14.32. Mr Lees said that he was 100% certain that Ms McKie was not in the porch.48
14.33. In a statement that she made to the Mackay enquiry Ms McKie said that when she collected the log "I was only as far as the porch." Describing the return of the log she said "¿ I again went into the porch unaccompanied."49 In her statement to the Inquiry50 after referring to her statement made in the year 2000 to the Mackay enquiry she went on to say "On both occasions, I opened the porch door and stepped just inside the porch. I did not go further than the porch. I did not enter any other part of the locus."51
14.34. Mr Kerr said that he attended a briefing at Kilmarnock Police Office that day before going to the locus.52 He was recorded in the log as arriving at 43 Irvine Road at 10:16 and leaving at 13:15 with Mr Wilson and Mr Moffat.53
14.35. Mr Kerr returned to the police office and there he had a discussion with the production officer about obtaining shoe boxes in which to put the door handles that were to be removed from the house for forensic examination.54 He was wearing a white protective suit and while at the station Ms McKie remarked that he looked as if he was going decorating.55 He said that she asked him if the scene of crime examination had been finished and if there was any chance of going to the house to get her head round the layout as she had specific tasks in relation to interviewing Miss Ross's family.56 She added that it was particularly difficult to get one's head round about the layout of the house. He told her to speak to Mr Heath and that the examination of the scene was not complete.57 Ms McKie has stated that she has no recollection of such a conversation and that in any event this was not a decision that Mr Kerr could have made.58
14.36. After he had gathered a number of shoe boxes from four or five retailers in Kilmarnock Mr Kerr said that he returned with them to the house.59 The boxes were in a van. The productions officer, Mr Kirkland, was with him and he handed the boxes out to him but Mr Kerr was fairly certain that Mr Kirkland did not go into the house.60
14.37. Mr Kerr's arrival at that time did not appear in the log and he has offered as a possible explanation for this that there was a sterile bedroom at the back of the house which could be entered through patio doors. Rather than disturb the two scene of crime officers who were working in the house by carrying the boxes in past them he carried them round to the back and entered through the patio doors.61
14.38. Mr Lees said in his evidence that he had no recollection of Mr Kerr being at the house that afternoon. He said that if Mr Kerr had entered through the front porch he would have put this in the log.62
14.39. Mr Kerr said that while he was in the house later in the afternoon and crossing from the living room towards the bathroom or the front bedroom he saw Ms McKie in the porch.63 The time at which Mr Kerr claims he saw this happen has been difficult to establish. In a statement dated 12 July 199764 he said that it was some time in the afternoon that he saw Ms McKie standing in the porch speaking to the uniformed officer on the door. In a precognition for HMA v McKie,65 the accuracy of which Mr Kerr does not accept, the time of this was given as just after lunch and about 13:30.
14.40. A few minutes before he was due to give evidence in the trial of Ms McKie a procurator fiscal asked Mr Kerr about his recollection of timings, and he said that he knew it was Saturday afternoon. This was because he had the radio on listening to football as he was interested in the scores because he did football coupons. He added that Scottish matches began at 3pm.66 He could not remember if the fiscal asked him if he knew that he was not entered in the log for that afternoon after 13:15. He recollected the procurator fiscal asked him if he was sure that it could have been 13:30 that he saw Ms McKie and he replied that it could not have been then as the football was not on at that time and that he was reasonably comfortable that it was later on in the afternoon because the football was on.67
14.41. He did not appreciate when the procurator fiscal was asking him that the time was of importance68 and when giving evidence at the trial he merely said that it was some time in the afternoon and it was a Saturday.69 The evidence to the Inquiry of the trial advocate depute, Sean Murphy Q.C., was that Mr Kerr's evidence at the trial was that he saw Ms McKie at the locus around 17:00 on Saturday 11 January 1997.70
14.42. In his statement to the Inquiry Mr Kerr said that he thought that it was between 14:30 and 15:00.71 However his statement also recorded that it may have been nearer to 17:30.72 A short time before he gave evidence to the Inquiry he became aware that there was a time between 17:30 and 18:00 when Ms McKie had a legitimate reason to be at the house and his evidence to the Inquiry73 was that it was possible that it was between 17:30 and 18:00 that he saw her at the house.
14.43. The crime investigation time sheet for Saturday 11 January 1997 which is contained in the report by Mr Wilson74 recorded Mr Kerr as being on duty on that date from 08:45 to 17:15 and Ms McKie (under the name of Cardwell) as being on duty from 09:00 to 21:00.75
14.44. During his evidence to the Inquiry Mr Kerr was asked about the content of an off-the-record note at the end of the precognition taken from him for HMA v McKie.76 This recorded that it was Mr Kerr's opinion that Ms McKie had possibly visited the premises for whatever reason and had relieved one of the log officers to allow that officer to visit the garage to purchase goods or to go to the toilet. His impression was that Ms McKie would have thought that the examination of the hall had been completed as it looked that way, and she would just simply have entered the hall when the log officer was not present. In his opinion no log officer would compromise his position to admit that he deserted his post. The precognoscer had noted Mr Kerr as being a very down to earth character and clearly not impressed by Ms McKie, and had gained the impression that he felt that she thought that she was better than him and that it was only a matter of time before she was promoted high in police ranks. Mr Kerr told the Inquiry that he had been asked to elaborate on rumours and gossip and he had no animosity towards Ms McKie.77 I should record that the off-the-record comment as noted by the precognoscer amounts to nothing more than speculation on the part of Mr Kerr, and I have heard no evidence to support it.
Enquiries on 12 January
14.45. A HOLMES-generated action for 12 January was for Mr Kinnaird to be re-interviewed to clarify the situation with the doors at the locus: "Show him [Mr Kinnaird] door keys and have him repeat his actions on entering house."78 Ms McKie received an instruction or action from Mr McAllister to return to 43 Irvine Road with Mr Shields taking keys for the house in order to have Mr Kinnaird go through the act of unlocking the doors.79 Mr Stevens said that Ms McKie collected the keys from him at 10:4580 and the property record sheet for the keys in HOLMES showed that Ms McKie got them from the temporary production store at the police office at that time.81
14.46. Mr Shields did not agree with the instruction from Mr McAllister as although Mr Kinnaird was not a suspect, he was a TIE (trace, interview and eliminate) and Mr Shields thought that Mr Kinnaird should not be taken back to the scene before he had been eliminated from the investigation. He shared his concern with Mr Heath who rescinded the action.82 The HOLMES record showed that the action was changed to "for referral" meaning that it was not to be carried out without further direction. The entry was marked "11.02" 83 although Mr McAllister explained that this would have been the time when the operator changed the status of the action on the system and not necessarily the time at which the decision was taken.84
14.47. Mr Stevens said that Ms McKie returned the keys to him after 15 minutes saying "I wish to hell he would make up his mind" which Mr Stevens took to be a reference to Mr Heath". 85 The return of the keys at 11.00 was noted in the property record.86
13 January
14.48. Mr Shields and Ms McKie were instructed on 13 January to trace, interview and eliminate the employees of the builders who had been involved in carrying out the improvements at 43 Irvine Road.87 They had to find out where these individuals had been in the house at that time. This was made more difficult because they were not familiar with the layout of the house so Mr Shields asked Mr Heath for permission to visit the house following a discussion with Ms McKie. This request was refused by Mr Heath as the forensic team was still working there.88
The scene log as a source of evidence
14.49. There was an internal Strathclyde Police inquiry as to whether or not an officer on log-keeping duties at the locus had either permitted access to the locus or had not kept a proper watch, thereby affording Ms McKie access unrecorded. Mr Malcolm, in a report dated 1 April 1997 to the procurator fiscal Kilmarnock, said: "The log of events was maintained at the locus from 8 January to 28 January 1997 inclusive. It has been examined and for a variety of reasons is not the quality of document that it might be. Fifty police officers' statements have been taken and should be read in conjunction with the log."89
14.50. I did not consider it appropriate to take detailed fresh evidence about the log-keeping and control of the scene in general and have not therefore undertaken my own assessment of the whole log-keeping exercise at 43 Irvine Road. I did, however, hear some evidence about the matter, which confirmed that the log was incomplete.
14.51. Log-keepers were not part of the police investigation team. The day-to-day arrangements were for whichever uniformed officers were allocated to the task and their supervisor.90 The Inquiry learned that the practice in more recent years has been to appoint a crime scene manager, and that procedures have changed.91 For example under current practice there would be an outer cordon and an inner cordon with a log kept at each position. The log-keepers would no longer be stationed in a porch at a crime scene such as this.92 In 1997 the task was generally allocated to less experienced officers93 with insufficient training or instruction for the duty, and an absence of a standard procedure to follow.
14.52. Mr Kerr94 said that he found copies of magazines, taken from the living room, lying on the log-keepers' table in the porch.95 He told the Inquiry that when he saw the logs and heard that individuals had gone in and switched on the heating in the house he formed the opinion that they did not really understand what was expected of them.96 He agreed97 that the log-keeping was "an absolute shambles" a description put to him from a statement to the Inquiry by Ms Greaves, the procurator fiscal who prepared the Precognition in HMA v McKie.98
14.53. Mr Hunter said that on one occasion when he attended the house a log-keeper was not present.99
14.54. From such evidence the Inquiry has seen, the standard of the log-keeping in this instance does not seem to have been adequate. Access to the house was not always adequately controlled. In some cases the log does not record the arrival and departures of people who were present in the locus, an example being the presence of Mr Kerr on the afternoon of Saturday 11 January.100
14.55. The information about log-keeping shows that the log cannot, on its own, answer the question: was Ms McKie in the house? Various rumours have persisted over the years to the effect that Ms McKie did go beyond the porch. I have investigated them.
Rumours
14.56. Since his retirement, Mr Brown had carried out investigations on a voluntary basis on behalf of others. During his investigation into the death of Annie Davis101 he met Marion Scott, a journalist on the Sunday Mail.102 In early 2006 he and Ms Scott had a meeting with two fingerprint examiners from SCRO, Ms McBride and Mr Geddes, at Mr Brown's house.103
14.57. Mr Brown's interest was in the murder of Marion Ross and not in fingerprints as he had no expertise in that subject.104 Ms Scott said in evidence to the Inquiry that Mr Brown told her that a friend of his at a bowling club (she had the impression that this was a retired police officer) had told him that in his opinion Ms McKie had been allowed into the murder house by a police officer who was on guard duty because he fancied her.105 She told him that there had been a number of rumours going round for many years regarding this case and unless there was factual evidence or proof it was only rumour. When Mr Brown asked her what kind of rumours she told him that the rumours ranged from Ms McKie having been in the house, or not having been in the house but with someone planting her fingerprint through jealousy, to there being some kind of sexual liaison in the house or that she was a "murder ghoul" and that was why she was there.106
14.58. There were a number of differences between the evidence of Mr Brown and that of Ms Scott concerning for example who had made the first approach about having a meeting with the SCRO officers and who initiated the discussion about the rumours. Nothing of importance turns on this because the Inquiry was interested only in the nature of the rumours that were circulating and then investigating if there was any basis for them.
14.59. Ms Scott told the Inquiry that she was not aware of any evidence to support the rumours107 and that she had said so to Mr Brown. Mr Brown referred in both his statement and in his oral evidence to the rumours that he had followed up insofar as he had found it possible to do so.
Mr McAllister
14.60. Mr Brown said that in 2008 he was in a shopping centre in East Kilbride when he was approached by a Mr McAllister, a retired detective superintendent.108 He knew Mr McAllister who inquired how he was getting on with the McKie case. Mr McAllister said to him, "Do you think she was in the house?" Mr Brown said that when he replied "Yes" the response from Mr McAllister was "So does my son, he knows she was in the house." Mr Brown asked who his son was and was told Detective Chief Superintendent McAllister of special branch.109 They met again two weeks later by chance and Mr McAllister senior asked Mr Brown how he had got on with his son and he told him that he had not spoken to him yet. To this Mr McAllister replied "Well, if you have any problems let me know."110
14.61. In evidence to the Inquiry Mr McAllister said that he had spoken to his father within the previous few days and that his father's position was that no such conversation ever took place.111 During his evidence Mr McAllister said that he had no evidence that Ms McKie was within the locus.
Mr McKinlay
14.62. In his statement Mr Brown said that he was informed by an anonymous source that the professional at Troon Golf Course in Ayrshire had been saying that he knew a police officer at Kilmarnock who had told him that he had all the answers.112 Mr Brown travelled to Troon and visited the professional, Mr Gordon McKinlay, in his shop where he explained to him the nature of his enquires.113 According to Mr Brown's account Mr McKinlay asked him for his telephone number and undertook to call this officer.114 Mr Brown said that he called Mr McKinlay who confirmed that he had passed on Mr Brown's message to the officer.115 Mr Brown said that he received no phone call either from Mr McKinlay or the officer in question.116
14.63. Mr McKinlay gave oral evidence to the Inquiry117 and he recalled Mr Brown coming to his shop and asking him if he knew a police officer who was involved in the case involving Ms McKie. When Mr McKinlay told him that he did not, Mr Brown said that he had been talking to someone who said that he did. Mr McKinlay said that following this he asked Mr Brown to leave the shop and Mr Brown gave him his card and asked him to ring if he knew the name of a police officer who was involved. He told the Inquiry that he did not know any police officer who was involved in the case of Ms McKie or who worked at Kilmarnock.118
Mr Reid
14.64. In 2006 Mr Brown interviewed Mr Kerr Reid, a police officer who got in touch with him. Mr Brown said that Mr Reid told him that when he was on dock duty in Paisley with an officer who was stationed at Kilmarnock this officer said to him "that b**** will get us done; it was me that let her into the house." On being asked why he let her in he said that it was because he fancied her."119
14.65. Mr Reid, who has now retired, said in evidence to the Inquiry that in 1999 or possibly 2000 he was in the kitchen muster area for police officers at Paisley High Court.120 A male officer from U Division, which is Kilmarnock, who could have been under 30 years of age, told the other officers present "My neighbour let her into the house. I think he had a fancy for her."121 It was explained that a "neighbour" in police circles refers to a person with whom one works. Mr Reid denied that he told Mr Brown that this officer said that he himself had let Ms McKie into the house.122
Mr Kerr
14.66. Mr Brown said in his statement "I did speak to a SOCO Officer, Officer Kerr, who confirmed that he heard PC Lees and Shirley McKie having a heated discussion in the porch of the locus. The SOCO said that Shirley McKie used the word 'contamination'. The SOCO was dismantling door handles at the time this was around 13 January 1997. I understand Shirley McKie was examined on this topic in court and denies that she used the word 'contamination' in conversation with PC Lees."123
14.67. Mr Kerr gave evidence that there was no heated discussion at the door.124 Furthermore he said that he had never spoken to Mr Brown. He remembered receiving a telephone call from someone purporting to be Mr Brown who wanted to speak to him about the McKie case and he referred him to the legal services department.125
14.68. Mr Brown in his oral evidence accepted that he did not have any contact with Mr Kerr126 and he said that he would never have referred to a detective constable as SOCO Kerr. Initially he claimed that this passage in his statement to the Inquiry gave him the distinct impression that it had been inserted and not by him, but he then accepted that they were his words and he agreed that he had made a mistake in signing his statement. He gave as his evidence "I am aware that a police officer, Detective Constable Kerr, stated that he heard PC Lees and Shirley McKie having a heated discussion in the porch of the locus. The Detective Constable said that Shirley McKie used the word 'contamination'."127 He accepted that the reference to a SOCO officer overhearing the conversation came from him and he thought that the information had come from the transcript of the trial. I understood Mr Brown to be referring to a note taken of proceedings by a police observer, Mr Stewart Carle.128 It is not a full transcript of the proceedings. That note does not record Mr Kerr as having said that Ms McKie used the word "contamination".
Mr Lees
14.69. Mr Lees was the log-keeper at 43 Irvine Road on 11 January. He was aware of rumours that he let Ms McKie into the house and denied that he did.129
14.70. In his signed statement to the Inquiry Mr Brown said that he was told that Mr Lees and Ms McKie had been seen arguing ferociously in the car park during the trial in HMA v McKie.130 In his oral evidence he said that for "ferociously" should be read "heatedly".131 He could not put a name on the person who told him but he suggested it might have been Mr Carle.132
14.71. There was no mention of such an incident in Mr Carle's statement to the Inquiry.133 Mr Lees said he never had an argument with Ms McKie during her trial, he never spoke with her at all.134 Ms McKie also said that she had no contact with Mr Lees during her trial.135
14.72. Mr Brown said that he made every effort to interview Mr Lees. He called at Stewarton Police Office, where Mr Lees was community officer for three and a half years prior to November 2007. In a telephone conversation with Mr Lees he made an appointment to see him in the following week. When he telephoned the section sergeant at the beginning of the next week he told him that after Mr Brown's telephone conversation Mr Lees had put down the telephone and gone sick and had not been seen since.136
14.73. Mr Lees agreed that he did have a conversation with Mr Brown but said that he did not walk out and he could not remember if he reported sick.137 In his statement Mr Brown said that he spoke to Mr Lees after this who told him that he had taken advice from Superintendent Weir and that he did not wish to be interviewed.138 Mr Lees confirmed in his evidence that he had taken advice from the superintendent and she told him that he did not have to speak to Mr Brown139 and he followed this advice.
Miss McKay
14.74. Mr Brown was given the name of a fingerprint examiner at the SPSA by SCRO fingerprint experts. Mr Brown spoke to the examiner, Collette McKay, and she told him that when she was showing a police constable, Alistair Morgan, around the fingerprint bureau Mr Morgan told her that someone he worked with had allowed Ms McKie to enter the house.140 Mr Brown interviewed Mr Morgan who disagreed with her interpretation of what he had said to her. Mr Brown said "Basically then you were just chatting her up, general conversation?" and he said "Yes."141
14.75. In her evidence to the Inquiry Miss McKay said that when she was showing Mr Morgan round she introduced the McKie case into the conversation out of interest to see how her office was now perceived, and he said that he worked with someone at Stewarton who said that he let Ms McKie into house. She reported the conversation to a senior fingerprint examiner. After she had spoken about it to Mr Brown she was interviewed by one or two senior officers from Strathclyde Police.142
14.76. Mr Morgan told the Inquiry that his visit to the bureau had been in 2005. He had no recollection of saying what was attributed to him by Miss McKay.143 He denied discussing the McKie case with her or telling Mr Brown that he had been trying to impress Miss McKay.144 He said that police officers from Kilmarnock sometimes did duty at Stewarton145 and when asked expressly he said that he knew Mr Lees but he was not a friend of his.146 He did not know of any officer allowing Ms McKie entry to this locus, nor of any officer who claimed to have let her have entry.147
Mr Murphy
14.77. Another allegation referred to by Mr Brown148 was that after Mr Lees had given evidence at the trial of Ms McKie the advocate depute, Mr Murphy, told police officers outside the court that Mr Lees had committed perjury and said "That's two that have committed perjury." Mr Murphy149 told the Inquiry that he had no recollection of this and would be quite surprised if he had made such a remark. He could not understand why he would have been speaking to a group of police officers outside the court after Mr Lees had given evidence.150
14.78. It should be noted that Mr Carle's summary of the trial recorded Mr Murphy as having said in the course of his speech to the jury that the prosecution accepted that there was no other evidence placing Ms McKie where the print was found and that, if the prosecution case was correct, not only had Ms McKie lied but somebody else must also have lied by denying either letting her in or being absent from post and giving her an opportunity to enter the house.151 It is more likely that that was the occasion on which Mr Murphy made the statement to which Mr Brown referred and read in context the allegation was contingent on the prosecution being correct about the fingerprint identification.
Police investigations
14.79. Some of the allegations raised by Mr Brown were investigated by Detective Chief Superintendent Ruaraidh Nicolson152 and Detective Superintendent John Mitchell153 in February and March 2007. Having first spoken to Mr Brown they interviewed Mr Reid who confirmed that in late 1999 or early 2000 he had a general discussion with a young police officer at Paisley High Court. He was unable to identify this officer by name and was not in a position to identify the individual who was alleged to have allowed Ms McKie to have access to the scene of the murder. Efforts to discover the identity of the officer through police files were unsuccessful as documents are only retained for the year in which they are created and then for five further years.
14.80. Mr Mitchell also interviewed Miss McKay and Mr Morgan who denied having had any discussion with Miss McKay about the McKie case. It appears that Mr Morgan had also been interviewed by a Strathclyde Police complaints and discipline team in December 2006 in relation to remarks he was said to have made to Miss McKay and no disciplinary action was taken.
Commentary
14.81. There is nothing in the evidence of Ms Scott to support the proposition that Ms McKie was within the house.
14.82. I accept that Mr McAllister had no evidence that Ms McKie was in the locus. If the Mr McAllister that Mr Brown spoke to was his father the conversation does not amount to evidence that she was in the house.
14.83. In the course of his evidence Mr Brown said that he did not believe that Ms McKie had engaged in sexual intercourse in the house. He said that his information that she was inside the house was based upon the suggestion that her fingerprint was found in the house. He agreed that apart from the fingerprint he had been unable to find any evidence from anyone who saw her in the house. He went on to say that he accepted that Mr Lees did not let her in but he (Mr Brown) thought that she just opened the door and said "I'll have a quick look."154
14.84. Mr Brown concluded his evidence by saying that there were several people who had said to him that they knew the name of the person who allowed her into the house but it was not possible to get any more from them for different reasons one of the main ones being fear for their jobs.155
14.85. A key question is whether Ms McKie entered the house before Y7 was found.
14.86. No witness to the Inquiry spoke to Ms McKie as having entered the locus beyond the porch and the Inquiry has found no evidence that she did so. There is no evidence that Ms McKie attended the locus on either of the occasions on 9 January or 12 January when she had in her possession for short periods the keys to the property. There is no evidence that Ms McKie went any further than the porch of the property when she and Mr Shields attended there on 9 January following their discussion with Mr Kinnaird.
14.87. So far as 11 January is concerned, I prefer Ms McKie's consistent account whereby she entered the porch to that of Mr Lees, whose account is that she did not step over the wooden threshold. It is possible that he adopted that approach to rationalise why he did not record her attendance in the log. Ms McKie's account is consistent with that of Mr Kerr, insofar as he recalled seeing Ms McKie in the porch and I have concluded that on this point of detail Mr Lees's recollection was not reliable. There is no evidence that she proceeded any further than the porch on
11 January.
14.88. Although Ms McKie put the time of her visit to collect the log on 11 January at around 17:45 the evidence as to timings is not sufficiently precise to lead me to draw any adverse conclusion from Mr Kerr finishing duty, according to the time sheet, at 17:15.
14.89. The position that Ms McKie has adopted and consistently maintained since 1997, even in the face of considerable pressure, is that she did not enter the house. She was well aware that she was not permitted to do so. Other officers say that they did not see her enter. Mr Shields, who spent a great deal of time with her, says that he did not see her enter.
14.90. The question as to whether or not Ms McKie entered the house has been also the subject of extensive preceding inquiry. So far as the Inquiry has discovered none of these inquiries has produced eye witness evidence of Ms McKie having been in the locus. In particular in the trial in HMA v McKie all the log-keepers gave sworn evidence that Ms McKie did not enter the locus. In essence, as the advocate depute at that trial explained, the only evidence that Ms McKie was in the house was mark Y7.156
14.91. An additional rumour mentioned by Mr Crowe in the course of his evidence157 was a suggestion, possibly made during the trial in HMA v Asbury or around that time, that Ms McKie had entered the house to use the lavatory. Ms McKie was only at the house while on duty for very short periods of time and the police station to which she was attached was close to 43 Irvine Road. It is difficult to understand why she would have chosen to enter a house for this purpose with other officers present carrying out the examination. It can therefore be dismissed as being nothing more than conjecture based on an erroneous belief that she had been on some duty that had required her to be at the house for long periods of time.
14.92. The various lines of inquiry raised by Mr Brown have all been pursued as fully as possible and no evidence has emerged to support the allegation that Ms McKie entered 43 Irvine Road beyond the porch. Mr Brown's accounts of matters were not always at one with the accounts of the persons with whom he claimed to have spoken. In relation particularly to his initial account of having spoken to Mr Kerr, his evidence was incorrect, as he accepted in oral evidence. Taking at their highest Mr Brown's accounts of conversations with Mr McAllister senior, Mr McKinlay and Mr Reid, they amounted only to hearsay of hearsay to the effect that someone had claimed to have knowledge that Ms McKie was in the house and I cannot attach weight to them. The lines of inquiry taken up from Mr Brown's statement produced no eye witness who has claimed that he saw Ms McKie in the house.
14.93. The critical question is whether Ms McKie was in the house. Leaving aside, at this stage, the fingerprint evidence (which is discussed later in this Report) I found no evidence that Ms McKie was in the house.
1. CO_1465
2. Lord Johnston used the term "logist" to refer to the officers who kept the log at the scene.
3. CO_2219 Mackay enquiry statement of Ms McKie
4. FI_0013 paras 65-66 Inquiry Witness Statement of Mr Heath and FI_0080 paras 5-6 Inquiry Witness Statement of Mr Shields
5. CO_3850 pdf page 68 paras 2.2-2.3, CO_2219 Mackay enquiry statement of Ms McKie and FI_0080 para 32 Inquiry Witness Statement of Mr Shields
6. CO_2219 Mackay enquiry statement of Ms McKie
7. FI_0071 para 15 Inquiry Witness Statement of Ms McKie
8. The property record sheet for the house keys in HOLMES - CO_1419 pdf page 2 and CO_3405
9. FI_0033 para 9 Inquiry Witness Statement of Mr Stevens
10. Mr Stevens 18 June page 104
11. CO_0214 para 86.6
12. FI_0071 para 15 Inquiry Witness Statement of Ms McKie
13. FI_0033 para 9 Inquiry Witness Statement of Mr Stevens
14. CO_2219 Mackay enquiry statement of Ms McKie and FI_0080 para 8 Inquiry Witness Statement of Mr Shields
15. FI_0071 para 20 Inquiry Witness Statement of Ms McKie and FI_0080 para 8 Inquiry Witness Statement of Mr Shields
16. FI_0071 para 21 Inquiry Witness Statement of Ms McKie
17. Mr Shields 9 July page 8
18. CO_2219 Mackay enquiry statement of Ms McKie and FI_0071 para 23 Inquiry Witness Statement of Ms McKie
19. CO_1271 Mackay enquiry statement of Ms Stirling
20. The reason for the singular is that the entry is written for Mr Shields with Ms McKie's name added.
21. CO_0288
22. CO_0287
23. CO_0286
24. Mr Shields 9 July pages 3-5
25. FI_0071 paras 54, 58 Inquiry Witness Statement of Ms McKie
26. CO_0286 page 4
27. CO_2219 Mackay enquiry statement of Ms McKie
28. FI_0071 para 21 Inquiry Witness Statement of Ms McKie
29. CO_0286 and FI_0071 para 19 Inquiry Witness Statement of Ms McKie
30. FI_0071 para 26 Inquiry Witness Statement of Ms McKie
31. FI_0071 para 25 Inquiry Witness Statement of Ms McKie
32. FI_0080 paras 12-13 Inquiry Witness Statement of Mr Shields
33. SG_0537
34. CO_1149 Mackay enquiry statement of Mr Fairley
35. FI_0037 para 40 Inquiry Witness Statement of Mr Thurley
36. FI_0044 paras 28-30 Inquiry Witness Statement of Mr Kerr
37. FI_0037 para 40 Inquiry Witness Statement of Mr Thurley
38. CO_2219 page 4 Mackay enquiry statement of Ms McKie, FI_0071 paras 32-40 Inquiry Witness Statement of Ms McKie and FI_0080 paras 14-15 Inquiry Witness Statement of Mr Shields
39. Mr Lees 18 June page 116
40. The outer door-frame and door from outside into the porch are seen in ST_0003 pdf page 3 (Photograph A).
41. FI_0012 para 7 Inquiry Witness Statement of Mr Lees and Mr Lees 18 June page 119
42. FI_0012 para 18 Inquiry Witness Statement of Mr Lees
43. FI_0012 para 19 Inquiry Witness Statement of Mr Lees
44. Mr Lees 18 June page 123
45. Mr Lees 18 June page 123
46. Mr Lees 18 June page 124
47. FI_0012 para 23 Inquiry Witness Statement of Mr Lees
48. FI_0012 paras 22-23 Inquiry Witness Statement of Mr Lees
49. CO_2219 page 4 Mackay enquiry statement of Ms McKie
50. FI_0071 para 32 Inquiry Witness Statement of Ms McKie
51. FI_0071 para 36 Inquiry Witness Statement of Ms McKie
52. FI_0044 para 32 Inquiry Witness Statement of Mr Kerr
53. SG_0537 pages 7-8
54. FI_0044 para 35 Inquiry Witness Statement of Mr Kerr (DC Kerr confirmed that this discussion probably took place in the afternoon - Mr Kerr 18 June pages 4-5)
55. FI_0044 para 41 Inquiry Witness Statement of Mr Kerr
56. FI_0044 paras 42-44 Inquiry Witness Statement of Mr Kerr
57. Mr Kerr 18 June page 6
58. FI_0071 para 28 Inquiry Witness Statement of Ms McKie
59. Mr Kerr 18 June page 13
60. Mr Kerr 18 June pages 15-16
61. Mr Kerr 18 June pages 13-14
62. Mr Kerr 18 June page 144
63. FI_0044 paras 44-47 Inquiry Witness Statement of Mr Kerr
64. CO_2593 page 5 Original police investigation statement of Mr Kerr
65. CO_2592 page 5 Original police investigation statement of Mr Kerr
66. Mr Kerr 18 June pages 25-27
67. Mr Kerr 18 June page 29
68. Mr Kerr 18 June page 30
69. Mr Kerr 18 June page 30
70. FI_0070 para 16 Inquiry Witness Statement of Sheriff Murphy, Sheriff Murphy 25 June pages 18ff
71. FI_0044 para 46 Inquiry Witness Statement of Mr Kerr
72. FI_0044 para 49 Inquiry Witness Statement of Mr Kerr
73. Mr Kerr 18 June page 33
74. See Chapter 10 paras 35-36
75. CO_0345 pdf page 114
76. CO_2592 Original police investigation statement of Mr Kerr
77. Mr Kerr 18 June page 79
78. CO_1467 and Mr McAllister 16 June pages 6-7
79. FI_0080 para 80 Inquiry Witness Statement of Mr Shields
80. FI_0033 para 12 Inquiry Witness Statement of Mr Stevens
81. CO_1419 pdf page 2
82. FI_0080 para 20 Inquiry Witness Statement of Mr Shields
83. CO_1467
84. Mr McAllister 16 June pages 8-9
85. FI_0033 para 12 Inquiry Witness Statement of Mr Stevens
86. CO_3405 and CO_1419 pdf page 2
87. CO_2219 page 4 Mackay enquiry statement of Ms McKie and FI_0071 para 29 Inquiry Witness Statement of Ms McKie
88. FI_0071 paras 30-31 Inquiry Witness Statement of Ms McKie
89. CO_0998
90. FI_0013 paras 54-57 Inquiry Witness Statement of Mr Heath
91. See Chapter 3 para 47
92. Mr McAllister 16 June pages 68-69 and Mr Hogg 17 June page 8, FI_0037 para 9ff Inquiry Witness Statement of Mr Thurley and Mr Kerr 17 June page 145ff
93. FI_0068 para 43 Inquiry Witness Statement of Mr McAllister
94. FI_0013 para 71 Inquiry Witness Statement of Mr Heath
95. Mr Kerr 18 June pages 43-44
96. Mr Kerr 18 June page 50
97. Mr Kerr 18 June page 51
98. See Chapter 10
99. FI_0042 para 27 Inquiry Witness Statement of Mr Hunter
100. Para 35ff above
101. An 84 year old lady found dead in her home in Erskine, Scotland, in 1998.
102. Mr Brown 19 June pages 11-12
103. FI_0017 para 3 Inquiry Witness Statement of Mr Brown, Mr Brown 19 June page 14 and Ms Scott 23 June page 7
104. Mr Brown 19 June page 15
105. Ms Scott 23 June page 3
106. Ms Scott 23 June page 5
107. Ms Scott 23 June page 10
108. Mr Brown 19 June page 28
109. Mr Brown 19 June page 28. Mr McAllister's current rank is Detective Chief Superintendent - FI_0068 para 1 Inquiry Witness Statement of Mr McAllister.
110. Mr Brown 19 June page 29
111. Mr McAllister 16 June page 33
112. FI_0017 para 44 Inquiry Witness Statement of Mr Brown
113. FI_0017 para 45 Inquiry Witness Statement of Mr Brown
114. FI_0017 para 46 Inquiry Witness Statement of Mr Brown
115. FI_0017 para 45 Inquiry Witness Statement of Mr Brown
116. Mr Brown 19 June pages 68-69
117. Mr McKinlay 23 June page 14
118. Mr McKinlay 23 June pages 16-17
119. Mr Brown 19 June page 40
120. Mr Reid 9 June page 124
121. Mr Reid 9 June page 126
122. Mr Reid 9 June page 128
123. FI_0017 para 46 Inquiry Witness Statement of Mr Brown
124. Mr Kerr 18 June page 65
125. Mr Kerr 18 June page 41
126. Mr Brown 19 June page 3
127. Mr Brown 19 June page 6
128. CO_0214 and FI_0014 Inquiry Witness Statement of Mr Carle
129. FI_0012 paras 29-30 Inquiry Witness Statement of Mr Lees
130. FI_0017 para 32 Inquiry Witness Statement of Mr Brown
131. Mr Brown 19 June page 35
132. Mr Brown 19 June page 37
133. FI_0014 Inquiry Witness Statement of Mr Carle
134. Mr Lees 18 June pages 134-135
135. FI_0071 para 85 Inquiry Witness Statement of Ms McKie
136. Mr Brown 19 June page 48
137. Mr Lees 18 June page 137
138. FI_0017 para 39 Inquiry Witness Statement of Mr Brown
139. Mr Lees 18 June page 139
140. FI_0017 para 47 Inquiry Witness Statement of Mr Brown
141. Mr Brown 19 June page 81
142. FI_0009 Inquiry Witness Statement of Ms McKay
143. Mr Brown 17 June page 136
144. Mr Morgan 17 June page 136
145. Mr Morgan 17 June page 138
146. Mr Morgan 17 June page 141
147. FI_0030 paras 5 and 6 Inquiry Witness Statement of Mr Morgan
148. Mr Brown 19 June page 75
149. Now Sheriff Murphy
150. Sheriff Murphy 25 June page 147
151. CO_0214 para 91.3
152. FI_0004 Inquiry Witness Statement of Mr Nicolson
153. FI_0001 Inquiry Witness Statement of Mr Mitchell
154. Mr Brown 19 June pages 112-113
155. Mr Brown 19 June page 148
156. See Chapter 12 para 59
157. Sheriff Crowe 2 July pages 181-182