Introduction
17.1. Mr Holmes, on behalf of the core participants from SCRO, submitted in his closing statement to the Inquiry that the six SCRO staff members, Mr MacPherson, Mr Stewart, Ms McBride, Mr McKenna, Mr Mackenzie and Mr Dunbar, were treated unfairly. The decisions made about them did not proceed on a proper analysis of the fingerprint evidence nor on an assessment of their competence but were instead based on external factors, principally the media campaign waged against them leading to their notoriety.1
Overview of the six SCRO staff members
17.2. The six SCRO staff members were not all in the same category. Four of them, Mr MacPherson, Mr Stewart, Ms McBride and Mr McKenna (who had been the signatories to the joint reports), were the subject of suspension while the two managers, Mr Mackenzie and Mr Dunbar, were moved to non-operational duties. The dates of the initial decisions varied and it would be fair to say that it was Mr MacPherson, Mr Stewart, Ms McBride and Mr McKenna who were the principal focus of attention in the following six years.
17.3. The suspension of the four signatories came first in August 2000 and the decision to move the other two to non-operational duties came one month later. The circumstances that culminated in that second decision are discussed in Chapter 16. This chapter begins by exploring the reasons for the initial suspension of the four signatories and then addresses the treatment of all six officers in the succeeding six years to early 2007 when their employment in the fingerprint bureau came to an end.2
The suspension of the four signatories
17.4. As far as Mr MacPherson, Mr Stewart, Ms McBride and Mr McKenna are concerned the critical date appears to be 2 August 2000, the day on which the National Training Centre examiners reported to the Mackay team that "without adequate explanation", there appeared to have been both collective manipulation of evidence and collective collusion to identify Y7 as Ms McKie's.3
17.5. The reasons for that conclusion were explained to the Inquiry by Mr Sheppard.
17.6. One factor was the nature of the misidentification. The NTC examiners could not understand how four fingerprint examiners working independently could all conclude that Y7 was made by Ms McKie, as the identification was very wrong. It was obviously not Ms McKie's mark.4
17.7. Another factor was Mr Sheppard's knowledge of SCRO. He had formed the impression that there was a great deal of peer pressure at SCRO and it was alien to challenge conclusions.5 The standards SCRO applied to the elimination of marks were also a factor. He understood that eliminations were made to a lesser standard and he suggested that an explanation might be that following the arrest of a suspect less care might have been taken in identifying Y7 as an elimination. After the identification was challenged the SCRO officers may then have worked together to agree a common view.6 This he accepted was conjecture.7
17.8. A further factor was that the two sets of charted enlargements prepared by SCRO showed identical lines to identical positions. It was clear that the productions had been prepared by the officers working together. This alone pointed to collaboration and potentially collusion.8 He worked on the assumption that each SCRO officer had to conduct his work independently and each should have produced his or her own charted enlargements.9 The copying of another fingerprint examiner's exhibits (productions) for court would result in disciplinary action in England and Wales.10
17.9. Mr Grigg also noted that the fact that charted enlargements were identical pointed to a lack of independent working. They were shoddy. He explained that he could not see how examiners working independently could conclude that the mark was Ms McKie's.11 He observed to the Inquiry that there may have been an innocent explanation; the point was that an explanation was called for.12
Sir William Rae's decision that the officers should be suspended
17.10. When Sir William Rae learned by phone from Mr Mackay of the NTC's findings and the strong opinion that there had been some form of manipulation and collusion,13 he felt that this was the first substantive evidence supporting the allegation of criminality and concluded that it made it untenable for the four SCRO officers to be allowed to continue to work within SCRO whilst the investigation was ongoing.14 He spoke to other members of the APRG, who agreed with him.15
17.11. Sir William requested written confirmation from Mr Mackay16 and that came in a letter dated 3 August.17 In addition to confirming the views expressed by the NTC team, Mr Mackay reported the views of Mr Rudrud and Mr Zeelenberg and Mr Wertheim. Mr Rudrud and Mr Zeelenberg strongly negated the conclusion that Y7 was Ms McKie's and their view of the process was that it was, in Mr Mackay's summary, "egregious". As for Mr Wertheim, it was said that he was less circumspect in his condemnation of the four and was alleging a pattern of deception based on a number of factors including the degraded and blurred quality of the images that had been used.
17.12. Mr Mackay's diary records that he contacted Mr Crowe on 3 August. The entry reads: "Contacted Frank Crowe and appraised him and gave him a copy of the letter. Frank Crowe states that it will be 10 days before he gets the other result in the Asbury case but he made the comment 'it now fits into place'."18 Mr Crowe by the time of the Inquiry had no recollection of this conversation. He explained that "the other result" referred to QI2 Ross.19 Mr Crowe had accompanied the Danish examiners (Rokkjaer and Rasmussen) on 31 July when they advised that that mark was a misidentification and the comment "it now fits into place" would be consistent with his reaction to that disclosure.20
17.13. Mr Mackay's diary then records that he had a further discussion with Sir William Rae regarding release of information to the SCRO director (Mr Bell), which was "agreed on the proviso that it is for his eyes only".
17.14. It is possible that following his conversation with Mr Crowe Mr Mackay may have known about QI2 Ross and informed Sir William Rae about it. However, it appears that Sir William had already reached the conclusion that the SCRO officers should be suspended, based on the information about Y7.
Implementation of the decision
17.15. The governing body with supervisory responsibility for SCRO was the SCRO Executive Committee which Sir William chaired but he did not have the authority to suspend, so he telephoned Mr Bell, explained the position to him and asked him to suspend the officers, documenting this contact by letter dated 3 August 2000.21
17.16. Mr Bell said that at the time he was regularly in discussion with Sir William. He thought this particular contact was initially by telephone followed by a fax.22 Sir William told him that following on from a presentation or information from Mr Mackay it would be appropriate to consider suspending the officers. He was not told what the information from Mr Mackay contained.23 Mr Bell did not know the grounds for suspension in detail and did not wish to.24 He was aware of the impact that suspension of the officers would have on the team, and that it would prompt further media speculation. He suspended the officers on receiving written confirmation from Sir William.25
17.17. The suspensions were stated to be precautionary "until such time as further investigations have been completed". The letter of suspension referred briefly to Mr Mackay's investigation and, without disclosing any detail, said that he had taken the views of Mr Rudrud and Mr Zeelenberg, Mr Wertheim and NTC; and it gave this reason for the suspension:
"The weight of opinion now available alleging gross misconduct or criminal collusion on your part as one of the SCRO fingerprint experts involved in the original identification process is such that I no longer believe that it is tenable for you to continue to perform your duties."26
Crown Office involvement
17.18. Crown Office involvement at this stage appears to have been at most limited. Lord Boyd of Duncansby Q.C., then the Lord Advocate, said that he had no involvement in the decision and that it was a decision for Strathclyde Police.27 Mr Crowe was informed on 3 August, after the decision had been taken by Sir William Rae following his discussions with Mr Mackay. Mr Crowe did not recollect being involved in the decision before this call and he regarded it as being entirely a matter for the police.28 According to Mr Mackay's letter, Mr Gilchrist was on holiday.29
Commentary
The reasons for, and justifiability of, the suspension
17.19. Various individuals have suggested differing reasons for the suspension. Ms McBride believed that it was Messrs Rokkjaer's and Rasmussen's opinions that QD2 had been misidentified that were instrumental in triggering their suspension30 and Mr MacPherson31 had the same understanding. Mr McKenna said he wondered if it had some bearing on the suspension.32 QD2 was the mark the identification of which the Danish experts initially disputed only to reverse their conclusion in 2006;33 and the concern of the SCRO examiners is that their suspension may have been related to that erroneous dispute.
17.20. The evidence is that the decision was taken by Sir William Rae based on the weight of opinion about Y7 as reported to him in Mr Mackay's letter.
17.21. As noted above, the NTC's opinion was caveated with the phrase "without adequate explanation". The Inquiry has found that a number of factors that caused Mr Sheppard concern at the time were capable of explanation.34 It appears that the possibility that there might have been satisfactory explanations was not explored at the time and the question arises whether that should have been investigated before the decision was taken to suspend the officers. In light of the opinions reported to him it is difficult to see how Sir William Rae had any alternative but to seek the suspension of the officers. From 6 July 2000 onwards the SCRO officers were suspected of a criminal offence and, on any view, the opinions reported to him provided evidence that misfeasance may have occurred. That called for further investigation and such investigations would have taken some time. It is difficult to see how the SCRO officers could continue to assist in criminal investigations in their ordinary course of work in such circumstances.
17.22. The decision to suspend proceeded on an analysis of the fingerprint evidence relating to Y7 and was not based on any external factors. Based on the information available to Sir William Rae the decision to suspend the SCRO officers cannot be criticised.
The transfer of Mr Mackenzie and Mr Dunbar to non-operational duties
17.23. Similarly the decision to transfer Mr Mackenzie and Mr Dunbar to non-operational duties was based on fingerprint evidence and not any external factor.
Further decisions concerning the six SCRO examiners
Decision that there would be no prosecution of the four examiners
17.24. The progression of the criminal investigation is narrated in Chapter 13. A public announcement that there would be no proceedings against the four officers was made on 7 September 2001.35
Consequential issues
17.25. From this point three different matters begin to interact and have a bearing on the work arrangements for the six officers:
(i) possible disciplinary proceedings against the six officers;
(ii) a civil action by Ms McKie for compensation; and
(iii) consideration by Crown Office whether or not to use the officers as witnesses in any criminal case.
Civil action for compensation
17.26. Ms McKie's legal action for compensation commenced in 2001. Initially her claim was based on a number of different grounds but by December 200336 it was recognised that the claim was one that required proof of malice and that was formally confirmed by an amendment lodged in July 2004. As Lord Hodge put it, in deciding on the level of legal expenses payable after the conclusion of the case, to succeed in that claim Ms McKie had to prove not only that Y7 was not her print but also that "the relevant SCRO officials acted maliciously in persisting with their assertions that there was a match, misrepresenting the fingerprint evidence in the way that it was presented to the criminal court and hiding the existence of doubters within SCRO."37
17.27. The history of the action is summarised in Lord Hodge's opinion. The action settled in February 2006 when Scottish Ministers agreed to pay compensation to Ms McKie. That settlement is outside the Inquiry's terms of reference and developments in that action will be discussed only insofar as they impacted on the treatment of the SCRO officers.
Return to work and the use of the SCRO examiners in criminal trials - developments to 2003
17.28. Most of the text that follows concerns the suspended four officers Mr MacPherson, Mr Stewart, Ms McBride and Mr McKenna. Lord Boyd, the Lord Advocate over the relevant period, had no recollection of any particular decisions regarding Mr Mackenzie and Mr Dunbar38 and the material available to the Inquiry relating to them was limited.
17.29. After the decision of the Lord Advocate not to prosecute the four SCRO officers, Strathclyde Joint Police Board, as employers, agreed a special disciplinary investigative procedure in relation to Mr MacPherson, Ms McBride, Mr McKenna and Mr Stewart and also Mr Mackenzie and Mr Dunbar. That procedure led to an investigation by James Black as to whether any disciplinary action should be taken against the six officers.
17.30. Mr Crowe's notes to the Lord Advocate recommending no proceedings had flagged up two consequential issues: the first being the ability to use the officers as witnesses in the future and the second being a concern how a disputed mark might be dealt with in the future.39 As to the first of these matters, Mr Crowe's note of 20 July 2001 was alive to the fact that other officers with a similar view on Y7 continued to work as normal.40 The Lord Advocate's note of 21 August 2001 (in which he agreed with the recommendation that there should be no criminal proceedings) envisaged a further discussion about whether the four officers could be "used" in future.41 Lord Boyd recollected that there were a number of discussions on this point.42
17.31. On or around 7 September Mr Gilchrist provided a note to the Lord Advocate about this issue. This note proceeds on the hypothesis that the Crown's position must be that the SCRO examiners had made serious mistakes in the Asbury/McKie cases.43 Nonetheless, he concluded that no decision need be taken on the use of the officers as witnesses until SCRO had decided whether there were to be disciplinary proceedings.44 Lord Boyd confirmed that he initialled the advice as being noted by him.45
17.32. Lord Boyd explained that it was clear in his own mind that the decision not to use the officers was not taken at this stage. The decision was deferred firstly for the disciplinary proceedings and then the civil proceedings. Crown Office was mindful of the fact that a decision not to use the officers again was likely to result in them losing their careers and so the final decision was deferred. It might have been that the civil proceedings had a different outcome and the SCRO officers could have recommenced full duties.46 He hoped that they could continue to be employed at SCRO.47 Lord Boyd regretted the fact that this hung over the individuals for so long.48
17.33. Mr Gilchrist's recollection was similar. He explained that his view was that no decision need be taken until at least the civil action and the disciplinary proceedings had come to a close. The final definitive decision not to use them as witnesses was taken after the end of the civil proceedings.49 It was possible the civil proceedings, in particular, would result in a judicial determination of whether there had been incompetence or something worse.50 He accepted that it was regrettable that the civil proceedings took so long and did not produce a judicial determination.51
17.34. The Black Report was produced on 28 February 2002,52 and the scrutiny committee for which Mr Black prepared it made recommendations to the Strathclyde Joint Police Board. The conclusion was that no matters of misconduct or lack of capability had taken place in the work surrounding Y7 and QI2, and that there should be reinstatement to their normal positions for the four suspended officers and a return to operational duties for the other two, Mr Mackenzie and Mr Dunbar. The report also recommended that no action be taken against Mr Bruce or Mr Geddes regarding their work on QI2. 53
17.35. Counsel to the Inquiry put it to Mr Bell that there had been some criticism over the years that the Black Report did not look at the nub of the matter namely whether the examiners had got the identification right or not. In response Mr Bell, who had been involved in how the process was going to be structured, said that this was not Mr Black's remit which was rather to look at the process and procedures and assure the Board that there were no matters of concern there.54
17.36. Mr Bell explained that SCRO engaged with the officers and their union and prepared a return to work strategy which included re-training. Upon return to work they were put on administrative rather than operational duties. Mr Dunbar and Mr Mackenzie were not returned to operational duties, by which Mr Bell referred to giving evidence in court.55 The return to work strategy and the duties assigned to the six officers are detailed by Mr Innes, the Head of the Scottish Fingerprint Service.56
17.37. The fact that the four had returned to work meant that the use of the examiners in criminal trials fell to be considered. A minute to Lord Boyd from Mr Gilchrist dated 21 March 2002 suggested two options: (1) informing SCRO that Crown Office was not prepared to accept reports from the officers; or (2) accepting reports from them but adopting a policy of not calling them to give evidence if the defence challenged the reports. Mr Gilchrist favoured the second option, but wrote that a decision could await sight of the Black report which had been requested. Incidentally, in this note Mr Gilchrist was indecisive as to whether or not Y7 and QI2 Ross had been misidentified. Experts instructed by the Crown had concluded that they had been misidentified but Mr Gilchrist wrote that following his investigation his own conclusion was that there remained a possibility that the identifications were correct but not to the 16-point standard.57 This reflects the absence of a definitive, official ruling on the identification of the marks.
17.38. Lord Boyd's private secretary's note to Mr Gilchrist on 27 March 2002 indicated that the Lord Advocate did not consider he needed to make a judgment at that time because matters currently rested with SCRO.58 Lord Boyd explained that the decision was that in the first instance Crown Office would wish to see the material that went to the disciplinary panel.59
17.39. Mr Bell did not wish to provide a copy of the Black report to a third party and the Lord Advocate instructed Mr Gilchrist to discuss this with Mr Bell, observing: "To be blunt I find it difficult to understand how the Tribunal [sic] came to its conclusions standing our own view of what went wrong."60
17.40. Mr Gilchrist met Mr Bell and the clerk to the Strathclyde Joint Police Board and reported to the Lord Advocate by minute dated 24 May 2002.61 He had been told that the independent expert, i.e. Mr Black, had examined whether the four had broken any rules or failed to follow set procedures, not attempted to enquire into whether they made a misidentification, and so he did not think that Mr Black's report was likely to assist the Crown in deciding whether to accept reports from these examiners.
17.41. He noted that experts instructed by HMCICS and Crown Office had advised that the officers had made a "bad misidentification" but other experts insisted they had got it right. There was no basis on which to challenge the officers' expertise, extensive checks of their work had been carried out with no mistakes found. "That does make the misidentification in the McKie case perplexing; but we cannot say that they are incompetent just because they got it wrong in one case." He referred to the ongoing civil action by Ms McKie and mentioned that the Scottish Executive's Justice Department was attempting to find an expert who could be asked to examine the fingerprint evidence with a view to saying whether there was any evidence of negligence on the part of the four. He did not think it would be appropriate to take a decision until the civil proceedings had concluded. Lord Boyd agreed that there should be no further action until then.62
17.42. The minute also noted that Mr Bell had said that none of the four would be used to identify fingerprints for the foreseeable future. If any of them wanted to be involved in making identifications in criminal cases and Mr Bell felt that they were ready for such work, he would contact Crown Office to ascertain if the Crown was willing to accept reports from them but no such approach would be made until after the civil proceedings had been concluded.
17.43. In his evidence to the Inquiry Mr Bell did not agree that the position was that he would only make an approach to the Crown after the civil proceedings had been concluded.63 He said his recollection was that they had agreed that the officers would go through the return to work process. Once he received a report from the Head of the Scottish Fingerprint Service saying that they had satisfactorily completed it he would write to the Crown to advise them of this and that the officers were available.64
17.44. A letter dated 31 May 2002 from Mr Bell to Mr Gilchrist65 refers to a discussion on 30 May. Mr Bell could not remember this discussion which was on the telephone.66 The letter noted that advice from employment law specialists was that: the officers could claim constructive dismissal if SCRO were to prevent them from being available to give expert evidence and whilst there might be some grounds for the Crown stating that they did not wish to receive such evidence from the officers, the decision would leave SCRO open to challenge of constructive dismissal. This was because there was no evidence of criminality, misconduct, or lack of capability. SCRO was also advised that if the officers proceeded with a constructive dismissal claim, the Crown would be called to explain their involvement in that decision-making process. Mr Bell explained that he told Crown Office this so that it was aware of the full background.67
17.45. The letter also stated "While the officers are currently on the list of expert witnesses, as director, I would consider it appropriate that when the officers are ready or indeed are being considered for evidential purposes I would meet with the Crown to address issues relevant at that particular time."
17.46. Although he had concluded that when the officers were ready or indeed were to be considered for evidential purposes then he should meet with the Crown to address the issue at that time,68 Mr Bell's position was that it was unlikely a decision as to the use of the SCRO officers would be made before the conclusion of the civil action. However the issue might well be discussed before the end of the civil action.69
17.47. A letter from Mr Gilchrist to Mr Bell dated 9 July 2002 stated: "The Crown's position remains that of not wishing to reach a view on the use of the four experts until the civil and appeal proceedings have been concluded."70
17.48. Mr Bell told the Inquiry that his recollection was that he would have advised the four officers and their staff association of his correspondence and meetings with the Crown either personally or through the Head of the Scottish Fingerprint Service whom he ensured was kept fully informed of developments and that he expected him in turn to ensure that the staff were made aware.71 He recalled discussions with Mr Gilchrist and said it was clear that when they were reinstated they were not to be involved in any identifications and would not be put forward for the list for court. There was an understanding between him and the Crown. He said that the officers understood this too. "They were not happy but they were as accommodating as they could be."72 He made a similar comment as regards Mr Mackenzie and Mr Dunbar not being returned to operational duties namely that they, as well as the Crown and the union, understood that if they were used in court they could be open to challenge and that could compromise a case.73
External factors
17.49. Mr Zeelenberg explained that the absence of an official admission of a mistake in the identification of Y7 led to two petitions being prepared.74 The first, in May 2002, ran in name of 130 fingerprint experts and was submitted to the Minister of Justice.75 The second, in September 2002, in name of Messrs Bayle, Grieve, Wertheim and Zeelenberg was submitted to the Scottish Parliament and called for a parliamentary inquiry.76
Return to work and the use of the SCRO examiners in criminal trials - developments from 2003
17.50. By July 2003 Scottish Ministers had instructed Mr John MacLeod, an independent fingerprint expert, to give an opinion for the purposes of the civil action. In December 2003, following a legal debate in the Court of Session, Lord Wheatley refused to dismiss the civil action and allowed it to go to proof.77 The Scottish Ministers appealed and the case was pending before the appeal court until October 2004 when, after Ms McKie had clarified the legal basis of her claim, the case was sent to a proof (i.e. a hearing on evidence).78
17.51. In a letter dated 12 February 200479 Mr Bell notified Crown Office that the four officers had successfully completed the return to work programme and were considered capable of returning to full duties "and as such should now be included on the Crown Office List of Expert Witnesses."80 It was made clear in this letter that the officers were expecting to return to giving evidence. They and their union expected that completing the return to work strategy would place them in a position to be returned to full duties. Mr Bell's expectation was that this was a decision Crown Office would make and that they possibly would not do so until after the civil litigation.81
17.52. In his letter Mr Bell suggested meeting and Mr Gilchrist in a response dated 23 February 200482 agreed that they should meet and noted that his one immediate concern was that the civil action was unresolved: for example, the report from the expert witness (Mr MacLeod) as to negligence on the part of the SCRO officers was still awaited.
17.53. It appears that the meeting took place although Mr Bell had no recollection of it83 and Mr Gilchrist updated the Lord Advocate by a note dated 10 March 200484 in which he indicated that if any of the officers were to give evidence arrangements could be made to mitigate the risk of challenges to fingerprint evidence. It might no longer be appropriate to await the conclusion of the civil action which was progressing at a "snail's pace". Mr John MacLeod was expected to view the productions that month and Mr Gilchrist thought it was legitimate to delay reaching any view until the Scottish Executive's Justice Department had obtained its expert's report. His recommendation was that he write to SCRO to say that the Crown awaited further developments in the civil proceedings before indicating whether they would be prepared to use reports from the experts in criminal proceedings.
17.54. Lord Boyd agreed with the recommendation,85 his response recording that "he would not wish matters to be delayed too long." Lord Boyd explained in his evidence that he was frustrated with how long the proceedings were taking.86
17.55. In March 2004 Mr Gilchrist contacted a solicitor in the Scottish Executive to ask about the current position in relation to Mr MacLeod's report87 and he wrote to Mr Bell by letter dated 12 March 2004.88 The letter said that Crown Office hoped to be in a position to say fairly soon whether the Crown would wish to use any of the four experts as a result of developments in the McKie civil action. In particular they would wish to see the independent expert's report before making any decision. The letter also noted Crown Office concerns about the experts being questioned in future proceedings about the McKie and Asbury cases. Mr Bell said that this reflected discussions at the time. A decision about the SCRO officers was deferred pending the independent expert's report and nothing further was raised with him before he retired as Director of SCRO in 2005.89
17.56. Mr MacLeod provided three reports to the Scottish Executive. His first report, dated 3 July 2004, dealt only with Y7 and he advised that Ms McKie could not have made that mark.90 His second report, dated 20 June 2005, addressed QI2 Ross and he concluded that it could not have been made by Miss Ross.91 His third report was dated 5 October 2005 and considered the question whether the SCRO officers had been negligent in relation to Y7.92 The opinion of Lord Hodge indicates that the position of Scottish Ministers changed in light of Mr MacLeod's conclusions in his first two reports:
"Matters moved on significantly [as regards the civil case] in July 2005 when the Scottish Ministers, having received a confidential report from Mr John MacLeod ¿announced that they would admit that the SCRO officials had made a mistake in identifying fingerprint Y7 as the pursuer's print and that they would enter into negotiations to settle the action."93
17.57. This change of tack did not have the support of the SCRO staff members. Mr MacPherson, Mr Stewart, Mr McKenna and Ms McBride wrote a letter to the Lord President of the Court of Session dated 14 November 200594 in which they expressed themselves still confident that the identifications made were accurate and said that the admission that Y7 was not that of Ms McKie made their positions untenable. They were aggrieved by their inability to make public comment while others, including the McKies, the Lord Advocate and Scottish Ministers, were making statements. There were concurring statements from Mr Mackenzie and Mr Dunbar and from Messrs Foley, Bruce and Geddes (expressly as examiners who had also reached the conclusion that Y7 had been made by Ms McKie) and a number of other staff members from the Glasgow bureau countersigned the letter.
17.58. By December 2005 Mr Brisbane had succeeded Mr Gilchrist as Deputy Crown Agent and Mr McLean had taken over from Mr Bell as Director of SCRO. Mr McLean wrote to Mr Brisbane on 13 December 2005 to ask if the situation in relation to the four experts was still the same and if there was any intention to review it at some time in the near future. Mr Brisbane contacted Mr Gilchrist95 to find out how things had been left before replying to Mr McLean on 16 January 2006.96 He confirmed the view was that it was appropriate to await the outcome of the civil proceedings and as this was now imminent there was no reason to change that view.
17.59. The civil proceedings settled on 7 February 2006. The terms upon which the Scottish Ministers settled the action were expressly that they did not admit legal liability as they continued to assert that the relevant SCRO officials acted in good faith.97 The First Minister's statement in the Scottish Parliament on 9 February 2006 characterised it as "an honest mistake".98
17.60. Mr Brisbane sent a minute to the Law Officers dated 27 March 2006 concerning the position of the four suspended officers and also the two supervisors i.e. Mr Mackenzie and Mr Dunbar. By then there had been a leak of part of the Mackay report99 disclosing that Mr Mackay had considered that there was criminal conduct. That report had previously been kept confidential even from the parties to the civil action (including Scottish Ministers). Mr Brisbane's view was that it was hard to envisage any circumstances in which the officers would not face challenge on the basis of Mr Mackay's allegations of criminality and the characterisation of the officers' conduct in the McKie case as "an honest mistake" could prove problematic.100 The minute went on "it is difficult to see how any of the persons concerned could be used as part of the evidential process without the significant risk of the history of the McKie case being introduced. This is unfortunate as it could of course be placed alongside their own careers - which in the case of some of them are indeed distinguished - and the totality of the review exercises that were conducted on SCRO work in 2000."
17.61. On 28 March 2006 the Lord Advocate appended a manuscript note to Mr Brisbane's minute: "I consider that it would not be appropriate to have the SCRO personnel involved in the McKie case as witnesses in criminal trials in the future. For the reasons discussed today." Lord Boyd said that in coming to that decision he had to take account of the wider public interest.101 The officers had been the subject of a public campaign. Whatever view was taken of the Mackay report, it had been leaked102 and recommended criminal proceedings. The settlement of the civil action would have had some bearing on the credibility of the officers. They had become notorious.103 They would have been subject to cross-examination on the contents of Mr Mackay's report and it would have been difficult for the Crown to suggest that they be accepted as credible and reliable witnesses at that point. Although one might have sympathy they could not be used in the public interest.104 Lord Boyd was content that the document reflected the factors that underpinned his decision.105
17.62. The Inquiry has not considered in detail what steps were taken thereafter but on 12 September 2006 Lord Boyd made a public statement when he gave evidence to the Justice 1 Committee's inquiry and said this in relation to the Crown's intention to call the officers as witnesses:
"The matter is under discussion, but it is fair to say that there are considerable difficulties in that respect. Frankly, the situation has not been helped by the unauthorised disclosure of Mr Mackay's report. I have enormous sympathy with the SCRO officers, some of whom are very experienced and have given very good service. However, my job is to ensure that criminal trials are properly conducted and that people have confidence in our criminal justice system. I have a concern that must be addressed. The position of the officers is now so notorious - I do not mean that in a pejorative sense, but the views that have been taken on them are well known - that if any of them were called as a witness, the trial concerned might well become a trial of the officer, rather than of the accused. I want to avoid that."106
17.63. Ms McBride said that on that same day a statement was released by the interim Chief Executive of the SPSA that it was the intention to remove the officers from their employment.107 Scottish Fingerprint Service staff were transferred to SPSA on 1 April 2007108 and, with the exception of Ms McBride who brought proceedings for unfair dismissal, matters were resolved in relation to the six officers on the eve of that event.
The SCRO officers' accounts of their return to work
17.64. Mr MacPherson referred to the period from his return to work in May 2002 until being made redundant in 2007. He was put on a return to work matrix that he thought would progress him towards re-inclusion on the Crown Office list from which, unbeknown to him, he had been removed and a return to full operational duties in line with the Black report. He sat a CTS (Collaborative Testing Services) competency test soon after his return and each year afterwards and he achieved 100%. In 2004 he and Mr Stewart were involved in setting up the quality assurance unit. Sometime after his return to work he was allowed to do the full remit of an expert's duty bar going to court.109
17.65. Mr Stewart said that when he returned to work in April/May 2002 the original intention was that he would be returned to full duties but this never happened. He and Mr MacPherson became part of the quality assurance team and in that capacity he was involved in ISO accreditation and devising new processes and forms. He left SCRO on 31 March 2007 having been given the option of leaving on an agreed package, negotiated by his union, or being sacked. He felt aggrieved that he was never allowed to defend himself against the serious allegations made against him; that he and his colleagues were subject to a media campaign and vendetta. They were told not to comment on the matter in public and warned that if they did they would face disciplinary action. He felt unsupported by his employers. 110
17.66. Ms McBride similarly did not return to full duties.111
17.67. Following his return to work Mr McKenna had to write everything he did down and have it checked by another expert. He was not allowed to check suspects, only to carry out AFR assessments and eliminations. He did not return to full duties and left SCRO by agreement on 31 March 2007. He said the fact that he was to be made redundant was announced at the time the Lord Advocate was to give evidence to the Justice 1 Committee and that he did not know why he was made redundant. It was put to him as an offer he could not refuse and he transferred to a policy position with Strathclyde Police. He also said that the officers were told that they could not talk about the matter publicly.112
17.68. Mr Mackenzie retired on 31 March 2007.113 Mr Dunbar retired on 30 March 2007.114
Position of other SCRO employees involved in Y7
17.69. A number of other SCRO fingerprint officers agreed with the four that Mr Gilchrist had investigated. In correspondence Mr McKie questioned whether others involved in the identification of Y7 (Mr Foley, Mr Bruce and Mr Geddes) should be disqualified from giving evidence. In reply to his letter of 1 September 2008 to the Lord Advocate115 Mr Dunn (the Deputy Crown Agent) advised that these three officers remained authorised under section 280 of the Criminal Procedure (Scotland) Act 1995, they had given reports and two of them had been led in evidence. Mr Dunn explained that authorisation under the Act was for Scottish Ministers not the Crown, and that the ability to provide routine evidence covered by the authorisation was not necessarily the same as being able to give evidence as a person whom the court would accept as an "expert" witness.116
17.70. Mr Gilchrist's view was that the other officers were in a different position. They had, at worst, made a mistake. There had been no claims of dishonesty against them. They had not appeared in court in the trials in HMA v Asbury and HMA v McKie and had more limited involvement.117
17.71. Lord Boyd explained that the difference was that the "notoriety" caused by the campaign and the civil proceedings attached to the four officers who had signed the reports and to Mr Mackenzie and Mr Dunbar as their supervisors and not to the others who had been able to continue to work without any undue difficulties.118
Commentary - the treatment of the SCRO officers
17.72. The initial decisions to suspend four officers and transfer the other two to non-operational duties have already been commented upon. In the succeeding six years the prominent dates are:
17.73. This is an extraordinarily long period throughout which the six officers' careers were in suspense because Crown Office would not use them as witnesses. Mr Bell has described the media attention as relentless119 and I accept that the six officers were caught up in a "maelstrom of negative publicity". Nonetheless, I am satisfied that there were objectively justifiable reasons for the decisions that were taken.
17.74. The announcement that there were to be no criminal proceedings still left the possibility of disciplinary proceedings covering essentially the same matters. The Black report resulted in the four suspended officers returning to work but the practical value of that report was undermined by the fact that it had not considered whether the relevant marks had been misidentified or not. In any event by the date of the return to work the civil action had begun.
17.75. The line adopted by Crown Office, in essence that the officers could not be used unless and until they were vindicated in the court proceedings, was realistic given that the claim by Ms McKie for compensation proceeded on an allegation that the four examiners had not only made mistaken identifications but had acted with malice.
17.76. In February/March 2004 Crown Office was concerned about the pace of the civil case but in July 2004 the Scottish Executive received the first report from Mr MacLeod which supported the view that Y7 had been misidentified. It is not surprising therefore that the decision continued to be deferred pending the outcome of the civil action. It was not envisaged at the time that it would take so long to bring the proceedings to a conclusion.
17.77. The fact that the civil proceedings were compromised with no judicial determination of the dispute concerning the fingerprints was unfortunate for the affected SCRO officers but the conclusion of the proceedings afforded an opportunity for their positions to be reviewed. Within days of the action settling, circumstances changed once more when the conclusion of the Mackay report, that there had been criminal conduct, was leaked. It appears that a decision as to the use of the officers was taken by the Lord Advocate soon after this. The SCRO officers would no longer be used to give evidence in criminal trials.
17.78. There was an absence of any procedure to review the authorisation by Scottish Ministers of any forensic scientist under section 280 of the Criminal Procedure (Scotland) Act 1995 but even if authorisation were to be based on a current assessment of competence it could not dictate the outcome of the potentially distinct question whether it is appropriate to lead the authorised individual as a witness in a criminal trial. In considering that question in relation to these six officers the Crown quite properly had to take into account the clear and real risk that, if any of them were to be called as a witness at a trial, the issue of the alleged misidentification of Y7 and their part in it would be raised and would distract the trial from the critical issue: the guilt or innocence of the accused. The decision of Crown Office not to use these officers seems inevitable and correct given the circumstances that had unfolded.
17.79. The primary focus of the Crown Office decision-making was on the four signatories to the joint reports, with no detailed separate consideration being given to Mr Mackenzie and Mr Dunbar. The overriding fact was that the notoriety that concerned Crown Office attached to all six of them. Crown Office was aware that it continued to use other SCRO examiners who shared the same view of Y7 but no difficulty had been experienced when those officers were used as witnesses. I am satisfied that the notoriety peculiar to Mr MacPherson, Mr Stewart, Mr McKenna and Ms McBride and, perhaps to a lesser extent, to Mr Mackenzie and Mr Dunbar, justified differential treatment of them.
17.80. It is also difficult to see how these individuals, either in person or through their employers, could have been permitted to respond in public to the allegations against them while the civil proceedings were running. Public comment on the substance of allegations in court proceedings is ordinarily discouraged and even in the exceptional circumstances of the media publicity surrounding this case I am satisfied that the employers acted responsibly in keeping public comment to a minimum.
1. Mr Holmes 26 November pages 81-86
2. In March 2007 except for Ms McBride who was dismissed on 1 May 2007.
URL: http://www.employmentappeals.gov.uk/Public/Upload/EATS.0020.09ScottishPoliceServAuthorityvMcBride.jacformatted2.doc
3. CO_1318
4. FI_0082 para 67 Inquiry Witness Statement of Mr Sheppard
5. FI_0082 paras 71-72 Inquiry Witness Statement of Mr Sheppard
6. FI_0082 paras 75-77 Inquiry Witness Statement of Mr Sheppard
7. Mr Sheppard 8 July pages 32-33
8. FI_0082 para 68 Inquiry Witness Statement of Mr Sheppard
9. FI_0082 para 69 Inquiry Witness Statement of Mr Sheppard
10. FI_0082 para 70 Inquiry Witness Statement of Mr Sheppard
11. FI_0081 paras 61-75 Inquiry Witness Statement of Mr Grigg
12. FI_0081 para 76 Inquiry Witness Statement of Mr Grigg
13. FI_0050 para 65 Inquiry Witness Statement of Sir William Rae, see Chapter 13
14. FI_0050 para 66 Inquiry Witness Statement of Sir William Rae
15. FI_0050 para 67 Inquiry Witness Statement of Sir William Rae. He also spoke to Mr Duncan, the Deputy Chief Constable of Strathclyde.
16. FI_0050 para 66 Inquiry Witness Statement of Sir William Rae
17. CO_1010
18. CO_2549 pdf page 5
19. FI_0048 para 18 Inquiry Witness Statement of Sheriff Crowe
20. See Chapter 13 paras 62 and 63
21. FI_0050 paras 3, 22, 68, 69 Inquiry Witness Statement of Sir William Rae
22. FI_0043 para 20 Inquiry Witness Statement of Mr Bell
23. FI_0043 para 20 Inquiry Witness Statement of Mr Bell
24. Mr Bell 3 July page 93
25. FI_0043 para 20 Inquiry Witness Statement of Mr Bell and see PS_0195
26. PS_0180 and SP_0004 Appendix 3 pdf page 26
27. FI_0057 para 38 Inquiry Witness Statement of Lord Boyd of Duncansby
28. FI_0048 para 20 Inquiry Witness Statement of Sheriff Crowe
29. CO_1010
30. FI_0039 para 144 Inquiry Witness Statement of Ms McBride
31. FI_0055 para 110 Inquiry Witness Statement of Mr MacPherson
32. FI_0054 para 130 Inquiry Witness Statement of Mr McKenna
33. See Chapter 27 para 14ff
34. See Chapter 28 para 96
35. Referred to in the Black Report SP_0004
36. Lord Wheatley in McKie v Strathclyde Joint Police Board, 2004 SLT 982 at para 46, URL: http://www.scotcourts.gov.uk/opinions/A4960.html
37. Lord Hodge in McKie v Scottish Ministers 2006 SC 528, para 25, URL: http://www.scotcourts.gov.uk/opinions/2006CSOH54.html
38. FI_0057 para 51 Inquiry Witness Statement of Lord Boyd of Duncansby
39. CO_0027
40. CO_0027
41. CO_0028
42. FI_0057 para 47 Inquiry Witness Statement of Lord Boyd of Duncansby
43. Contrast paragraph 37 below
44. CO_4065
45. FI_0079 para 5 Inquiry Witness Statement (Supp.) of Lord Boyd of Duncansby
46. Lord Boyd of Duncansby 10 November pages 49-50
47. Lord Boyd of Duncansby 10 November page 51
48. Lord Boyd of Duncansby 10 November pages 49-50
49. FI_0072 para 54 Inquiry Witness Statement of Sheriff Gilchrist
50. Mr Gilchrist 24 June pages 81-83
51. Mr Gilchrist 24 June pages 155-156
52. SP_0004
53. SP_0004 pdf page 12
54. Mr Bell 3 July pages 91-92
55. Mr Bell 3 July pages 94-96 and FI_0043 paras 24-27 Inquiry Witness Statement of Mr Bell
56. FI_2410 para 121ff Inquiry Witness Statement of Mr Innes
57. CO_4066
58. CO_4069
59. FI_0079 para 7 Inquiry Witness Statement (Supp.) of Lord Boyd of Duncansby
60. FI_0079 para 9 Inquiry Witness Statement (Supp.) of Lord Boyd of Duncansby and CO_4073
61. CO_4079
62. FI_0079 para 10 Inquiry Witness Statement (Supp.) of Lord Boyd of Duncansby
63. Mr Bell 3 July pages 100-101
64. Mr Bell 3 July page 96
65. CO_4081
66. FI_0077 Inquiry Witness Statement (Supp.) of Mr Bell
67. Mr Bell 3 July pages 98-99
68. FI_0077 page 2 Inquiry Witness Statement (Supp.) of Mr Bell
69. Mr Bell 3 July pages 99-101
70. PS_0102
71. FI_0077 page 3 Inquiry Witness Statement (Supp.) of Mr Bell
72. FI_0043 para 22 Inquiry Witness Statement of Mr Bell
73. FI_0043 paras 27-28 Inquiry Witness Statement of Mr Bell
74. FI_0115 para 62ff Inquiry Witness Statement of Mr Zeelenberg
75. AZ_0008
76. AZ_0011
77. A proof before answer on her pleadings.
78. For a summary of the sequence of events in the civil case see Lord Hodge, URL: http://www.scotcourts.gov.uk/opinions/2006CSOH54.html
79. CO_4086
80. This appears to be a reference to authorisation under section 280 of the Criminal Procedure (Scotland) Act 1995 but, as explained in Chapter 40 there is not in fact a Crown Office list of expert witnesses, as Mr Bell acknowledged in his oral evidence - 3 July page 97.
81. Mr Bell 3 July pages 103-104
82. CO_4087
83. Mr Bell 3 July page 104
84. CO_4089
85. FI_0079 para 13 Inquiry Witness Statement (Supp.) of Lord Boyd of Duncansby
86. Lord Boyd of Duncansby 10 November page 50
87. CO_4092
88. CO_4091
89. Mr Bell 3 July pages 104-106 and FI_0043 para 1 Inquiry Witness Statement of Mr Bell. He retired as Director of SCRO in 2005.
90. SG_0635
91. SG_0704
92. SG_0705
93. Lord Hodge, URL: http://www.scotcourts.gov.uk/opinions/2006CSOH54.html
94. SG_0557
95. CO_4094
96. CO_4095
97. Lord Hodge: URL: http://www.scotcourts.gov.uk/opinions/2006CSOH54.html. See also Scottish Parliament Justice 1 Committee 3rd Report, 2007 (Session 2) Inquiry into the Scottish Criminal Record Office and the Scottish Fingerprint Service, SP Paper 743, para 322ff.
98. Scottish Parliament Official Report, 9 February 2006, column 23240, URL: http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0209-02.htm#Col23255 (see chapter 13)
99. Articles in the Scotland on Sunday newspaper about Mr Mackay's report were published on 12, 19 and 26 February 2006: see Chapter 13.
100. CO_4096
101. FI_0079 para 18 Inquiry Witness Statement (Supp.) of Lord Boyd of Duncansby
102. The BBC published the 58 page Mackay Report Executive Summary on 3 May 2006: see Chapter 13.
103. Lord Boyd of Duncansby 10 November pages 46-47
104. Lord Boyd of Duncansby 10 November page 48
105. Lord Boyd of Duncansby 10 November page 56
106. Scottish Parliament Official Report 12 September 2006 Col 3697
107. FI_0039 para 148 Inquiry Witness Statement of Ms McBride
108. FI_0153 para 2 Inquiry Witness Statement of Mr Nelson
109. Mr MacPherson 28 October page 8 and FI_0055 paras 27, 83-85 Inquiry Witness Statement of Mr MacPherson
110. FI_0036 paras 2, 283-288, 296-297 Inquiry Witness Statement of Mr Stewart
111. FI_0039 para 151 Inquiry Witness Statement of Ms McBride
112. FI_0054 paras 2-3,135-136, 145-147 Inquiry Witness Statement of Mr McKenna
113. FI_0046 para 2 Inquiry Witness Statement of Mr Mackenzie
114. FI_0053 para 12 Inquiry Witness Statement of Mr Dunbar
115. DB_0741
116. DB_0743 - letter dated 17 October 2008. Authorisation is discussed in Chapter 40.
117. FI_0072 para 56 Inquiry Witness Statement of Sheriff Gilchrist
118. Lord Boyd of Duncansby 10 November page 51-52
119. See Chapter 13 para 26