Introduction
8.1. The Crown's exercise of discretion in deciding to proceed to trial against Mr David Asbury on a charge of murder does not come within the terms of reference of the Inquiry. My review of the prosecution's preparations for the trial was confined to casting light on the instructions that were given relative to the fingerprint evidence and any insight these provided into attitudes towards such evidence in general at the time.
Mid February - early March 1997
Preparation for the trial in HMA v Asbury
8.2. At about the same time as the police were having the identification of Y7 checked, the procurator fiscal was informed of the time-scales for Mr Asbury's trial. On 14 February Mr Heath submitted a report on Y7 to the Divisional Commander, Mr Cameron.1 By letter of the same date from Crown Office, Mr Gallacher2 advised the procurator fiscal in Kilmarnock that the case had been provisionally allocated for trial during the High Court sitting in Glasgow commencing on 12 May.3 The last date for service of an indictment for this sitting was 9 April and the Precognition would require to be submitted from Kilmarnock to Crown Office by 31 March 1997.
The police inform the procurator fiscal about Y7
8.3. The following week Mr Heath was in touch with the procurator fiscal. He had been engaged on another investigation, was about to go on a period of leave and was concerned that the report he had submitted to Mr Cameron had not yet gone to the fiscal. He also felt that the fiscal should have been involved in the steps taken after his report4 and so on 20 February he told Mr Thomson he intended to speak to the fiscal to inform him of developments.5 His notebook indicated that he also updated Mr Orr that morning. This included informing him of telephone calls from Ms McKie's father though by the time of the Inquiry Mr Heath had no recollection of these calls.6
8.4. On 20 February Mr Heath met Mr McMenemy and Mr McGlennan and updated them as fully as possible. He was told they would inform Crown Office.7
8.5. He briefed his detective inspectors on the situation before going on holiday from 21 February.8 Mr Thomson wrote an addendum to Mr Heath's report with an update to 21 February covering his meeting with Ms McKie on 17 February and the further comparison of Y7 on 18 February.9 Mr Thomson reported that Ms McKie was "absolutely adamant" that she had not entered the house beyond the porch during the murder investigation and had no recollection of being in the house on other enquiries. She was "most emphatic" that it could not be her print.
8.6. The Heath report, as supplemented by Mr Thomson, served as the basis for a report that Mr Orr prepared for the procurator fiscal. It was in two parts: a narrative dated 24 February (Monday) and an addendum dated 26 February.10
8.7. Subject to the point mentioned at paragraphs 11 and 12 below, the narrative in Mr Orr's report was broadly consistent with the sequence of events described in the preceding chapter.
8.8. The first part of Mr Orr's report concluded, echoing wording from Mr Heath's report of 14 February, that unless a serious mistake had been made twice by Identification Bureau and SCRO fingerprint officers, there was "overwhelming legally accepted evidence" that Ms McKie had been in the bathroom area of the house. It narrated that she and Mr Shields were both emphatic that she had not been in the interior of the house. The procurator fiscal was asked to review the implications of his report in the context of the prosecution of Mr Asbury as well as considering whether an independent scrutiny of the Identification Bureau process at the scene should be carried out to confirm its integrity.
8.9. The addendum began by making reference to Z7 and also noted that Y7 had been found on the second dusting of the door-frame. It was observed that although it was surprising that the "apparently fresh fingerprint" had not been detected with aluminium powder this was not unusual; hence the Identification Bureau practice in serious cases of repeating examinations using black powder.
8.10. The addendum also referred to a discussion between Mr Orr and Mr McGlennan on 26 February when the report was delivered to the procurator fiscal's office. It recorded that after full discussion the fiscal concluded: (i) Mr McGlennan would contact Crown Office to arrange a meeting with the Home Advocate Depute,11 Mr Kevin Drummond Q.C., to discuss the question of the fingerprint; (ii) at this stage there was no need either to review Identification Bureau procedures or to treat Ms McKie as a suspect; there was a sufficiency of evidence against the accused; and (iii) the officers who maintained the security of the murder scene could be interviewed by the police and asked "in a very confidential way" whether Ms McKie had ever been inside the house between "the material times".12
The limitation to the police report
8.11. Mr Orr's report, written as it was on the basis of the reports by Mr Heath and Mr Thomson, was written from the perspective of the understanding of the police. Thus in referring to the events of 11-13 February this report proceeds on the basis that SCRO had carried out a further examination of Y7 between those dates when in fact SCRO had not done so. In itself that was not a significant error because the report does accurately record that the mark was submitted to further comparison on 18 February. More fundamentally, the report records no more than the conclusion of the comparisons by SCRO, which is all that the police officers were told. It does not record that Mr Geddes and the majority of those involved in subsequent checking of the mark from 17 February had reached a conclusion at no higher than the level of an 'elimination' on less than 16 points. Mr Orr, like Mr Heath before him, understood that there was "overwhelming legally accepted evidence" (emphasis added) and that was because it was not disclosed to them that there was any issue about the ability to satisfy the 16-point standard.
8.12. The distinction between an 'elimination' and an 'identification' was not canvassed in this report because SCRO had not raised the matter with the police and no one, then or subsequently, raised the matter with Crown Office. Crown Office was, accordingly, not alerted to the distinction nor in a position to give consideration to the implications of the findings by Mr Geddes, Mr Mackenzie, Mr Dunbar, Mr Foley and Mr Bruce.
The procurator fiscal informs Crown Office about Y7
8.13. Mr McGlennan had a conversation with Mr Gallacher at Crown Office and, by letter dated 26 February, sent him a copy of Mr Orr's report.13
8.14. There was no evidence of a meeting involving Mr McGlennan and Mr Drummond but the matter did come to Mr Drummond's attention as there was a note from him, dated 27 February, on a slip in the Crown Office file:14
"1. Eliminate her from the murder inquiry.
2. Once (1) has been carried out the position of [Ms McKie] should be reconsidered including
(a) on list of witnesses (sic)
(b) precog15 on oath
(c) further interview by a counselling officer."
The Crown instructs actions concerning Y7
8.15. A letter dated 28 February from Mr Gallacher to Mr McGlennan16 broadly reflected and expanded upon the content of Mr Drummond's note. The matters covered included the possibility of removing the door-frame to preserve the fingerprint and also a more specific line of enquiry:
"It would also be useful to obtain information from the Scenes of Crime Officers as to whether they can give an opinion as to how fresh the print was and how recently the imprint was made and whether any view can be given as to the circumstances in which the print and indeed the palm print were made. In other words what was the person doing when they left these prints."17
8.16. The reference to a palm print here is to Z7.
The procurator fiscal instructs actions by the police
8.17. By letter dated 3 March Mr McGlennan communicated the Crown Office instructions to Mr Orr for implementation.18 The officers on guard duty at the locus with responsibility for maintaining logs were to be interviewed "in an effort to ascertain" if Ms McKie entered the house. Efforts were to be made to exclude her from the murder investigation by establishing that she could not have been in the house at the time the murder was committed. Assuming that this exercise had been carried out satisfactorily she was to be interviewed by a senior officer who was to make it plain to her that she was likely to have to give evidence at the trial. The letter included the following passage: "Any anxiety that she may have in relation to any breach of police procedures will of course require to be seen in the context of the potential consequences if the fingerprint evidence is accepted and she maintains in court that she was never in a position to have produced the print."
8.18. As far as the fingerprint process was concerned it was to be ascertained from scene of crime officers or the Identification Bureau whether there was any merit in removing the door-frame for preservation purposes.
8.19. The letter also passed on Mr Gallacher's point about it being useful if information could be obtained as to how fresh the print was, how recently the imprint was made and what the donor might have been doing at the time.
The police and Ms McKie
8.20. On 19 February Ms McKie had gone on sick leave. She stated that following Mr McAllister's telephone call on 18 February to tell her the result of the comparison undertaken that day she became even more distressed.19
8.21. On 25 February, Mr Cameron instructed Ms McDonald to take on a welfare liaison role for Ms McKie and requested that she visit her at her flat.20 Ms McKie found Ms McDonald's visit on Thursday 27 February extremely upsetting as she felt she was being encouraged by her to change her story and to admit that she had been in the house. When Ms McDonald left Ms McKie telephoned her father and he spoke to Mr Cameron and demanded that he see him the following day.21
Mr McKie
8.22. Mr Heath's diary22 refers to telephone calls from Mr McKie prior to his conversations on 20 February and Mr O'Neill thought23 that Mr McKie had been with Mr Thomson when he was telephoned by Mr Thomson on 17 February. Mr Thomson made no mention of this and it would appear that Mr McKie's main involvement began after Ms McDonald's visit to Ms McKie.
8.23. Mr McKie's statement to the Inquiry did not go into detail about this period but in his statement to the Mackay enquiry he indicated that his daughter was very distressed after the visit from Ms McDonald and it was at this point that he decided that he should become involved.24
8.24. Mr Cameron recorded his meetings with Mr McKie and Ms McKie in a report of 3 March to the Deputy Chief Constable Mr Richardson.25 The narrative that follows is taken from that report.
8.25. On 27 February, the day that Ms McDonald visited his daughter, Mr McKie telephoned Mr Cameron who was known to him and Mr Cameron agreed to meet him the following day. At the meeting Mr McKie expressed a number of concerns namely that:
8.26. Mr Cameron advised Mr McKie that two additional examinations of the door surround had been undertaken, one in the presence of his daughter, and "SCRO fingerprints" had on both occasions identified the print in question as hers.
8.27. Mr McKie asked Mr Cameron not to rule out the possibility of his daughter's print being put at the locus of the murder by someone else. Mr Cameron advised him of the seriousness of this allegation, and Mr McKie said he did not wish to make any complaint at that point and that he wished their conversation to remain confidential.
8.28. Later in the day when phoning Mr Cameron to make arrangements for Ms McKie to meet him again, Mr McKie said he had checked with a fingerprint expert who had advised him it was possible for his daughter's fingerprint to be placed at a murder scene by someone else.
8.29. Mr McKie indicated to the Inquiry that at the very beginning he gave his daughter a hard time because he believed that fingerprints were infallible, but eventually he came to believe that she was speaking the truth.26
Meeting of Ms McKie and Mr McKie with the Divisional Commander
8.30. On Saturday 1 March Ms McKie and Mr McKie met Mr Cameron in his office. Mr Cameron noted that Ms McKie accepted the mark was hers and stated she definitely had not been beyond the porch. Mr Cameron noted her as having said that one solution to the mystery could be that her print was lifted from the tin and transferred to the house.27
8.31. In her Mackay enquiry statement28 Ms McKie said that she was becoming desperate and trying to think of every possible permutation which could account for her mark being in the house. Thinking of her mother doing 'DIY' led her to ask if the door facing was original.
Follow up by the police
8.32. Mr Cameron reported that he and Mr Orr discussed "the aspersions made by Ms McKie" and the sequence of events, noting in particular that the tin had been handled by Ms McKie and Mr Shields on 14 January, but not removed from Mr Asbury's home on that date, and the fact that Y7 was found on the door-frame that same day.29
8.33. On 6 March Mr Cameron had a further meeting with Ms McKie which was about her return to work.30
8.34. By this time, as noted above, Mr Orr had received the detailed Crown Office instructions conveyed in the procurator fiscal's letter of 3 March.
Commentary
8.35. As Mr McAllister observed to the Inquiry, Ms McKie's position was "consistent throughout".31 She maintained that she had not been in the house beyond the porch.
8.36. Both the police and Ms McKie believed that Y7 must have been made by her. Despite being schooled to believe that fingerprint evidence was infallible, the police had arranged for the identification to be checked by SCRO and although they, and therefore Ms McKie, understood that more checks had been undertaken than was in fact the case, there had been three new comparisons, by Mr Mackenzie, Mr Dunbar and Mr Halliday. SCRO "categorically"32 stated their position and, to the recipients of the information it now seemed unassailable; the mark was Ms McKie's. The subtleties of the various comparisons and the fact that some of the examiners did not satisfy the legal standard of 16 points were not conveyed to the police.
8.37. Crown Office proceeded on the basis of the information supplied by the police to the procurator fiscal. Crown Office also accepted SCRO's position. Extensive inquiries were instructed but those inquiries proceeded on the hypothesis that Y7 had been correctly identified. It is not possible to say with any certainty what might have happened had SCRO provided to the police, and in turn to Crown Office, a comprehensive summary of the various comparisons that had been carried out highlighting in particular the spread of opinion among the examiners as to the number of matching characteristics33 and the complexity of the mark. However, it is the case that in the absence of a comprehensive summary Crown Office was not alerted to any need to check whether the identification was robust and correct.
8.38. Other consequences flowed from the acceptance of SCRO's position.
8.39. In particular, the situation became more serious for Ms McKie. She began to look for explanations as to how her mark could have got there without her having been in the house to make it. This search for explanations on her part led to further difficulties given the nature of the alternatives. Mr McKie put it this way: "We were looking at all sorts of solutions to this, even stupid solutions like some wood that perhaps Shirley had used in her house had been left in Marion Ross's house."34 The evident 'stupidity' of some of the explanations advanced only served to reinforce the perception of others that she was not telling the truth. What is more, it was at this stage that the 'planting' explanation entered the narrative. Almost immediately it was seen as an "aspersion", since it implied malpractice by someone, and it was an extremely serious allegation to make in any context, let alone in relation to a murder investigation in which fingerprint evidence was crucial.
8.40. Mr McKie said that he recognised that the police wanted a resolution to the situation because Ms McKie's refusal to accept that she had been in the house was not helping the murder investigation. The consequence of this was that both Ms McKie and he felt that the police were in opposition to them, a situation that continued until after Ms McKie's trial.35
March 1997 - further developments
Police implementation of the Crown instructions
8.41. Mr Malcolm appears to have been given responsibility for the detailed implementation of the instructions from Crown Office. He prepared a report to the procurator fiscal dated 1 April 1997, countersigned by Mr Orr36 which summarised the results of the investigations.
8.42. Interviews with log-keepers: the report narrated that fifty police officers and two scene of crime officers had been interviewed. It mentioned that for various reasons the scene log was not the quality of document that it might be. The only reference to Ms McKie in the log related to 9 January when she and Mr Shields had been recorded as arriving at 19:45 and departing at 19:47 and as being in the porch only. The report also referred to the evidence of Police Constable Mark Lees and Ms McKie about her attendance at the house on 11 January to collect and return the log and noted that Mr Lees was adamant that Ms McKie did not enter the porch, far less the house, during these two visits and that Ms McKie claimed to have only entered the porch.37
8.43. Ms McKie's access to keys: the report referred separately to evidence from a production officer that Ms McKie had borrowed keys on two occasions whereas her statement of 14 February had mentioned having done so on only one occasion.38
8.44. As regards fingerprint evidence, Mr Malcolm stated that Y7 had "indisputably been identified" as that of Ms McKie and that would be the evidence of the SCRO experts, this being an implicit reference to a joint report by Mr MacPherson, Mr Stewart, Ms McBride and Mr McKenna dated 27 March 1997. Mr Malcolm recorded that he sought an opinion regarding what the person might have been doing to leave the fingerprint in the position in which it was found. He was told that in the first instance the opinion was that the bathroom door was off. In the second, a person looking from outside the door, leaning on the right hand door standard with their left hand to gain balance or purchase when peering round the door-frame or round/over some obstruction, e.g. another person, could have left the print in that position. However, the report continued, the fingerprint officers were not prepared to include such an opinion in their report. The joint report contained a statement regarding the orientation of the mark but no discussion as to the manner in which it may have come to be on the door-frame.40
8.45. Clarification by Identification Bureau: Mr Malcolm attached a memo by Mr Hogg dated 14 March 199741 detailing the finding of marks at the house. Mr Malcolm noted that Mr Hogg was not in a position to offer an opinion in evidence as to what the person was doing when the mark was deposited but he was of the opinion the door was off. "Significantly" it went on "this means that the print may not have been present when the aluminium powder examination was carried out."42
8.46. Forensic testing was carried out by Mr Keith Eynon, Deputy Principal Scientist at the Strathclyde Police Forensic Science Laboratory. Mr Malcolm's report referred to two matters being addressed. The first was examination of blind samples of fingerprint impressions in black and aluminium powder. This was an experiment to see if there was any way of telling whether Y7 was placed before or after the first examination with aluminium powder.43 The experiment was inconclusive. The second related to the McKies' suggestion that the door-frame may have been a piece of wood that perhaps Ms McKie had used in her house and that had come subsequently to be in Miss Ross's house. Mr Eynon's laboratory tests established that the timber in the door-frame on which Y7 was found was similar to the timber in other parts of the hallway.
8.47. The relevant dates concerning the finding of the tin were clarified. It was first seen on 14 January but not seized until 22 January when Mr Asbury was arrested. Fingerprint examination of the tin revealed a print of Miss Ross but did not reveal fingerprints of Mr Shields or Ms McKie.
8.48. Mr Malcolm reported that at his interview with Ms McKie on 31 March she had been told that enquiries to date had revealed no record which would account for a visit by her to the locus. She was informed that her claim that her fingerprint had been placed at the locus illegally by a person unknown would be tested in the High Court. She repeated her belief that the tin played a part in this scenario and was "obviously surprised that the timescale contradicted her but claimed that only added to her confusion." The basic essentials of her statement, the report stated, were that she accepted the print was hers but claimed it was 'planted'. She maintained she had never been in the house. The report indicated that Ms McKie "also displayed knowledge of a theory that the door had to be off for her print to be in the position found. She feels strongly that an 'independent' expert would support her feelings that the print was 'planted'." It was noted that "she did not allude to any of the other theories previously mentioned by her and was not told of specific lines of enquiry which counter them."
8.49. Mr Malcolm contrasted the findings of his investigations with the accounts give by Ms McKie over time.
8.50. The report concluded with the following observations:
"The bare essence of [Ms McKie's] assertion is criminal conduct on the part of an unknown person.
Conversely she is a liar, however, to date no evidence has been found to put her inside the house. The possibility therefore exists that some other individual is lying also."
Mr Malcolm's report concerning 'the previous incident'
8.51. Mr Malcolm provided a second report dated 3 April, countersigned by Mr Orr, dealing with the 1993 incident.44 The belief in 1997 was that the 1993 incident provided a precedent for Ms McKie not telling the truth when her print was found where it ought not to have been but, as explained in Chapter 6, in the light of a subsequent discovery that belief was without foundation.
Mr Heath
8.52. Mr Heath had been away on other business, returning to the division around 31 March. He told the Inquiry of the difficult atmosphere that existed. Ms McKie was denying that Y7 was hers despite its being checked "many times" and there was a growing awareness she had made "several" visits to the house, which he accepted in oral evidence might mean only one other to return the log to the locus.45 It was emerging that the log-keeping had not been carried out properly and members of his team were coming to him mentioning 'the previous incident' involving Ms McKie. Fingerprint evidence was going to be a significant part of the evidence in the Asbury trial and the fact that one of his officers was challenging a mark would therefore create significant complications. The clear fingerprint evidence, at the time, was that Ms McKie had been where she should not have been, and it seemed to him, and he suspected to many other officers in his team, that the force was tolerating what the evidence indicated was a serious mistake on her part. Added to this, his recollection was that rumours were circulating that Ms McKie had indicated that her print had been 'planted' at the scene by colleagues. Morale was affected by this and he personally felt undermined. He began to consider leaving the CID.46
The Precognition is completed and sent to Crown Office
8.53. Crown Office sought an update by letter dated 26 March and was informed that the Precognition would be submitted on 3 April.47 The precognition officer who prepared it was Ms Berry and it was dispatched to Crown Office on 2 April and received there on 3 April.48
8.54. The Precognition was a self-contained series of volumes containing the witness statements taken by Ms Berry and expert reports. It opened with a narrative of the facts of the case and an analysis of the critical evidence,50 both prepared by Ms Berry, and included her recommendation that proceedings be taken against Mr Asbury.51
8.55. Bound as part of the Precognition52 were copies of Mr Malcolm's report dated 1 April 1997 with Mr Hogg's memo of 14 March, the report by53 and Ms McKie's statement taken by Mr Malcolm on 31 March.54
8.56. The analysis of the evidence identified a sufficiency of evidence based on:
(i) the print on the gift tag (i.e. XF) attached to the boxed soap set purchased in 1996;
(ii) the partial prints of Mr Asbury and Miss Ross on the tin (i.e. QI2);
(iii) evidence that the money in the tin was folded in a way considered unique to Miss Ross; and
(iv) Mr Asbury's disappearance after the murder.
8.57. Ms Berry's analysis was that the "damning evidence" was the fingerprint evidence relating to (1) the finding of Mr Asbury's print on a gift tag in Miss Ross's house (i.e. XF) and (2) the finding of her print on a tin containing money in his bedroom (i.e. QI2 Ross). Both Ms Berry and Mr McMenemy highlighted the difficulty posed by the disputed identification of Y7, Ms Berry observing:
"If this situation cannot be resolved before this case comes to court, the credibility of the Fingerprint Officers will undoubtedly be called into question, probably blowing the only substantial evidence we have in this case apart."55
8.58. The Precognition included a reasoned note by the Senior Procurator Fiscal Depute, Mr McMenemy56 endorsing the recommendation that Mr Asbury be prosecuted for murder.
8.59. Mr McMenemy highlighted that the chronology relating to the recovery of the tin contradicted Ms McKie's theory that Y7 was explicable as a 'plant' taken from the tin. He mentioned that so far Ms McKie had been interviewed by senior police officers, "authority figures", and that as it might be that she had disobeyed an order he suggested that he precognosce her to discover whether or not she would stick to the story and also to see if a more sympathetic approach might bring about a change of heart.
Ms McKie's account of her interview with Mr Malcolm and the content of the statement
8.60. Ms McKie's own account of her interview with Mr Malcolm was that she met him, by arrangement, on 31 March to answer questions from the procurator fiscal which appeared to focus on how she could account for her fingerprint being at the locus. She tried to "explain the inexplicable" suggesting various theories, but these were dismissed. She was asked about her visits to the locus and about her movements generally at the time of the murder. She was upset as it seemed as if she was being considered a suspect. She was informed that the procurator fiscal wanted to make sure she knew what perjury was and she replied that she did and that she was telling the truth. She was, she says "quite frankly terrified."57
8.61. A copy of the statement noted by Mr Malcolm was included in the Precognition submitted to Crown Office.58 It includes this statement: "I would like an expert unconnected to the enquiry to re-examine the fingerprint."59
Commentary
8.62. The situation had now deteriorated for Ms McKie.
8.63. The police had carried out extensive investigations on the instructions of Crown Office. The identification of Y7 as her print was now attested by the joint report dated 27 March 1997 by four SCRO examiners. Despite the reference in her statement of 31 March to a desire to have the mark re-examined she was known by then to have accepted that Y7 was her mark. This is considered further below in the context of the precognition taken from her by Mr McMenemy. Such explanations as she had been able to suggest had been investigated and rebutted.
8.64. The fact that the police were instructed to investigate the previous incident in 1993 involving Ms McKie is illustrative of a hardening of attitude towards her. The lack of resolution regarding Y7 was viewed as potentially undermining the prosecution of Mr Asbury.
April 1997 - Indictment and further enquiries
8.65. Given the time limits fixed in Scots law for trials, the indictment had to be served on Mr Asbury by 10 April and, accordingly, Crown Office was working to a short deadline.
8.66. The potential difficulties with Y7 were immediately appreciated, as is apparent from the handwritten note from the duty Advocate Depute, Mr Moynihan, of 3 April 1997.60 This note recorded that he had drawn the matter to the attention of the Lord Advocate61 to inform him of the position and it instructed certain further enquiries including that Mr Asbury be indicted in the High Court. It is evident from this and another, undated, note62 that a concern of Crown Counsel at this point was that Ms McKie might have moved the tin from the house of the deceased to the house of the accused.
8.67. Within Crown Office the task of preparing the indictment, and hence preparing the case for trial, was assigned to Ms Gillian Climie, a procurator fiscal in the High Court Unit.
8.68. The investigations instructed in Crown Counsel's note of 3 April were reflected in a letter dated 7 April 199763 from Ms Climie to Ms Berry which also contained instructions as to other enquiries and aspects of preparation of the case. The letter recorded that Crown Counsel was giving further consideration to the fingerprint evidence and meantime asked Ms Berry for a response to the points raised in Mr Gallacher's letter of 28 February namely whether the door-frame had been removed, whether any opinion could be given by scene of crime officers as to the age of Y7, and what exactly the opinion of scenes of crime was as to how the print was deposited. "Is it more likely than not that the door was off? If so, can the degree of likelihood be expressed?"
8.69. With a letter dated 9 April Crown Office sent the indictment to the procurator fiscal for service on Mr Asbury.64
8.70. A further detailed letter dated 11 April and stamped as received that day was sent by Ms Climie to Ms Berry following Crown Counsel's further consideration of the fingerprint evidence in general and in relation to Y7.65 The letter took into account the further enquiries recommended by Mr Moynihan66 and was seen in draft by Mr Drummond67 and Mr Moynihan.68 It set out an extensive list of specific instructions from Crown Counsel concerning Y7 and other instructions in relation to the fingerprint evidence in general.
8.71. Among the instructions, Mr Hogg was to be precognosced on various matters including his opinion as to whether the door was on or off when Y7 was deposited, the age of the print, and the suggestion that Y7 was "lifted" from the tin and transferred to the door-frame. It noted "It is, of course, appreciated that the planting theory does not hold water given the chronology of events. Crown Counsel's concern is that Y7 found at the locus is that of [Ms McKie], she denies being at the locus (which, prima facie, suggests that she is not telling the truth) and she happens to have been one of two officers who stumbled on the tin (a highly incriminating piece of evidence against the accused) on 14 January."
8.72. Ms McKie was also to be precognosced, by Mr McMenemy with another legal member of staff present. The circumstances regarding the print were to be fully explained to her and she was to be told there was scientific evidence showing that the frame was part of the original house. She was to be given the opportunity to accept her presence at the locus and to explain it. If she continued to deny her presence she was to be left in no doubt of the risk which she ran in giving such evidence on oath "in the face of apparently irrefutable evidence showing that she had touched the door frame." She was also to be asked if she was aware of any actual evidence as opposed to speculation about the 'theory' of planting and about the 1993 incident. The letter stated "in the event that [Ms McKie] maintains her position on oath…it is essential that all relevant evidence is available to demonstrate to the jury the untruthfulness of this. If the jury accept [Ms McKie's] evidence then the integrity of the science of fingerprinting (on which this case depends) is put into question."
Ms McKie precognosced
8.73. Ms McKie was precognosced by Mr McMenemy on 16 April. She said she was asked the same questions as before and advised that the procurator fiscal would be telling the defence solicitors about her position.69
8.74. Mr McMenemy accepted it could be said that during the interview with Ms McKie he was trying to "burst" her and to get the truth out by probing her. He could see that she was in a very difficult position as she was either facing disciplinary proceedings for going into the house or she was going to the High Court to repeat under oath that she had not been in the house and as a result facing the possibility of proceedings against her for perjury. Mr McMenemy could see that she was isolated and no one, Mr McMenemy included, believed her. He discussed with her what her attitude, as an experienced police officer, was to fingerprint evidence and she said that it was "basically conclusive evidence". Mr McMenemy told her that that was where her colleagues were coming from in relation to Y7.70
8.75. That is reflected in a passage in the precognition taken by Mr McMenemy:
"In my view it was conclusive evidence, well-nigh infallible. Accordingly, I accepted the fingerprint detected on the door-frame as mine but I cannot explain how it got there."71
Mr Heath
8.76. Mr Heath said he left a social event on 4 April at which Ms McKie was present because he could have been placed in a compromising position. He was later informed of unrest caused by remarks made that night by Ms McKie including a suggestion that various people in Strathclyde Police were out to get her.72 He decided to submit a report to Mr Thomson and did so on 7 April, noting in it that he was doing so in an effort to convey the likely effect of Ms McKie's position on the trial, the current effect on the division's morale, and the likely effect on the public perception of Strathclyde Police "and fingerprint evidence in general" should Mr Asbury be acquitted or found not proven. His report noted that Ms McKie's 'planting' suggestion "infers a conspiracy by Strathclyde Police in attempting to pervert the course of justice" in the murder case and indicated his concerns for the trial. He stated that if asked at the trial his opinion as to Ms McKie's position on the fingerprint identification there could only be one answer "since all of the other possibilities regarding the presence of her fingerprint have been eliminated, and her account of where the fingerprint was allegedly lifted from is not feasible." He would state that Ms McKie was in his opinion a liar. 73
8.77. Mr Heath intimated that he wanted to leave the CID as a result of the whole matter. He was transferred to a post in the Force Inspectorate in May 1997 only returning to Kilmarnock on promotion in 2000.74
Commentary
8.78. It has already been observed that in her statement of 31 March, Ms McKie was noted as having said that she would have liked "an expert unconnected to the enquiry" to re-examine the fingerprint.75 Her perception that fingerprint evidence was "well-nigh infallible" was the prevailing view at that time and the Crown did not pursue re-examination by an external expert. An independent expert was instructed on behalf of Mr Asbury for his trial, as noted below.
8.79. Given the certainty that the police understood to be attached to the identification of her mark, and the fact that her strongest alternative explanation for the presence of her mark alleged malpractice on their part, it is not surprising that the attitude of the senior officers towards Ms McKie did harden. Mr Shields, her police 'neighbour' with whom she had worked on more than one occasion, said that his relationship with her changed at the stage when she suggested planting.76
8.80. There is no evidence that the police were 'out to get' Ms McKie. Nor is there any evidence of any conspiracy involving the police and SCRO falsely to identify fingerprints in the case. The evidence is that the police went out of their way to have SCRO check the identification and methodically examined the explanations that she advanced.
8.81. Ms McKie found the questioning at the interviews difficult but the questions put to her during these interviews by Mr Malcolm and Mr McMenemy reflected what Crown Office had instructed and were understandable given that the universal view at the time, including that of Ms McKie and her father, was that SCRO was right.
8.82. From Ms McKie's point of view, she was in an impossible situation.
End of April until the trial in HMA v Asbury
Ms McKie
8.83. At the end of April Ms McKie was in discussion about options for her return to work, but this changed with developments in May.77
8.84. Mr Asbury was represented by Mackintosh & Wylie. It is outwith the remit of the Inquiry to consider in detail the arrangements for disclosure to the defence in connection with his trial78 but it appears that Ms McKie was on a list of witnesses provided by the Crown and that, in facilitating delivery of a 'precognition letter' to her, Mr Heath suggested to the solicitors' firm that they might wish to precognosce her themselves rather than through a precognition agent.79 Ms Dowdalls, a partner in the firm precognosced Ms McKie on 5 May with her father present.80
8.85. A few days later, on 8 May, Ms McKie was served with an Investigation Form under the Police (Conduct) (Scotland) Regulations.81 She described herself as being "absolutely devastated" and after this she could not think about work and remained on sick leave. Between then and 28 May, the day she gave evidence at the trial, she was "in the depths of despair".82
Preparations as regards the fingerprint evidence
The defence
8.86. Mackintosh & Wylie instructed Mr Malcolm Graham, a retired fingerprint examiner from Lothian and Borders Police, to provide a report in relation to the fingerprint evidence. He agreed the SCRO identifications of the critical fingerprints XF, QD2, QI2 (both Mr Asbury and Miss Ross) and of Y7.83 It should be noted, though, that in oral evidence he clarified that he was not working to the 16-point standard in coming to his view on Y7 or QI2 (Ross and Asbury): "I never went to 16 points. All my examinations are to my satisfaction."84
8.87. The report specifies that in relation to Y7 he viewed two actual size photographs of it in a production book (Book "L"). One photograph was dated 16 January and the other 18 February. He thought that because of the fragmentary nature of the mark, the second photograph would have been taken to try and enhance it. He said that he was asked to consider the possibility that the mark had been lifted from the tin and that he was able to say "with certainty" that that did not happen for these reasons:
8.88. Mr Graham noted that although fingerprints could be transferred from one surface to another with the use of adhesive tape, considerable knowledge and skill was required to find a suitable latent impression and transfer it in a manner that did not appear suspicious when developed.
The Crown
8.89. Mr Hogg said that on 8 May Mr McMenemy brought the door-frame to his office for him to examine it in the context of Ms McKie's allegation that the fingerprint had been planted. He told Mr McMenemy that he was not an expert on planting. He said that it appeared to him to be a good print but he could not comment on planting.85
8.90. SCRO's preparation of the fingerprint reports for the trial in HMA v Asbury is considered in Chapter 9.
8.91. There was no note on the Crown Office file of any further involvement by Crown Office between the date of the letter of 11 April86 and the start of the trial.
The trial
8.92. The trial proceeded between 16 May and 4 June 1997.
8.93. A summary of the proceedings, with some incidental observations, is in the note prepared by Sergeant Stuart Carle, the police observer.87
8.94. The defence did not contest the SCRO evidence regarding the identification of the fingerprints. The focus was not on the identity of the marks, but rather on how they got to the place where they were found.
8.95. Mr MacPherson and Mr Stewart both gave evidence but neither was cross-examined by the defence.88
8.96. Ms McKie was called by the Crown as a witness on 28 May 1997. There are both the summary of her evidence in Mr Carle's note89 and transcripts of her evidence.90 Her evidence covered the finding of the tin in Mr Asbury's house91 and also the 1993 incident.92 As for Y7, she did not accept that the fingerprint was hers because she said that she had not been in the house. She accepted that she had never known fingerprint evidence to be incorrect and she had no explanation for the print being identified as hers but she repeated her denial that she had been in the house.93
8.97. Mr Graham was called as a defence witness and he confirmed in cross-examination that he had no doubt about the identifications of QI2 as the print of Miss Ross94 and Y7 as that of Ms McKie.95 The thrust of his evidence at the trial was directed to the possible means by which Miss Ross's fingerprint could have been planted on the tin, the possibility that he left standing being that it could have been placed on the tin by contact with the corpse in the mortuary.96
8.98. The advocate depute in his address to the jury is noted as stating that the starting point of the Crown case was the fingerprint evidence relating to XF and QI2 Ross.97 That being so, he had to face up to Y7 and to assure the jury that they could have trust in fingerprint evidence. His submission was that Ms McKie was not telling the truth, she had done something like this before and had dug herself into a hole and did not know how to get out of it. He is noted as describing Ms McKie as a rogue policewoman who had added an unnecessary burden to the case but that her print did not cast doubt on the integrity of the police operations.98 In conclusion he is noted as having said: "Fingerprint evidence is irrefutable and this is not an exception in this case."99
8.99. The defence closing address to the jury did not contest the identification of QI2 Ross but argued that the print had been placed on the tin when the tin had been taken to the mortuary.100 Y7 was cited as showing that fingerprints could be disputed. If Ms McKie was not telling the truth then a second person must also have lied about the log, which only went to show that the production register relating to the custody of the tin could also be erroneous.101
8.100. The jury returned a verdict of guilty by majority.102
Commentary
8.101. The basis on which the jury reached their verdict is not known. The defence did not focus on the identification of the fingerprints but on their deposition. There was no attack on the work of SCRO at the trial. Their identifications were supported by the evidence of Mr Graham for the defence.
8.102. It was not until the trial in HMA v McKie that attention focussed on SCRO. As Mr McKie said to the Inquiry with reference to the period prior to the involvement of Mr Wertheim, down to about March 1999, "It has to be remembered at this time we were not claiming the SCRO experts were wrong in identifying the print as Shirley's because our previous police training had lulled us into accepting that such experts were infallible …The various double checks we believed had been carried out only strengthened our conviction that while the print was hers something must have gone seriously wrong. Our sole focus was on the belief that the print, although hers, must have been forged or placed in the house accidentally or transplanted there by person unknown… probably by other than the experts."103
1. CO_1716
2. Now Sheriff Gallacher
3. CO_4028
4. Mr Heath 9 June pages 71-72 and FI_0013 paras 282, 287 Inquiry Witness Statement of Mr Heath
5. FI_0013 para 281 Inquiry Witness Statement of Mr Heath
6. FI_0013 para 283 Inquiry Witness Statement of Mr Heath and AC_0003 page 3
7. Mr Heath 9 June page 73, FI_0013 para 283 Inquiry Witness Statement of Mr Heath and AC_0003 page 3
8. FI_0013 paras 284, 288 Inquiry Witness Statement of Mr Heath and AC_0003 page 4
9. CO_1716
10. CO_1717
11. There were a number of duty advocate deputes, but only one Home Advocate Depute, which was the senior post.
12. CO_1717
13. CO_4026 and CO_4027
14. CO_4052. He subscribed "TAKD"
15. Short for 'precognosce on oath'. Precognition on oath is the formal process by which a witness may be required to attend before the sheriff to be interrogated under oath. The precognition is recorded and signed by the witness and by the sheriff.
16. This would be consistent with the normal practice at the time. Crown Counsel's instructions were forwarded internally to a procurator fiscal within Crown Office and it was that procurator fiscal who communicated the instruction to the outside agency, in this case the local procurator fiscal's office.
17. CO_4025
18. CO_1718
19. CO_2219 Mackay enquiry statement of Ms McKie
20. CO_1163 Mackay enquiry statement of Ms McDonald
21. CO_2219 Mackay enquiry statement of Ms McKie
22. AC_0003
23. FI_0120 para 17 Inquiry Witness Statement of Mr O'Neill
24. CO_2402 Mackay enquiry statement of Mr McKie
25. CO_1719
26. Mr McKie 15 October page 115
27. CO_1719
28. CO_2219 Mackay enquiry statement of Ms McKie
29. CO_1719
30. CO_2219 Mackay enquiry statement of Ms McKie
31. Mr McAllister 16 June page 58
32. CO_1716 para 30
33. See Chapter 7 para 192
34. Mr McKie 15 October page 110
35. Mr McKie 15 October pages 112-114
36. CO_0998 and in the Precognition for the Asbury trial, CO_3850 pdf page 60ff
37. See Chapter 14
38. The borrowing of the keys is considered in Chapter 14.
39. DB_0004
40. See Chapter 9
41. FI_0034 paras 38-43 Inquiry Witness Statement of Mr Hogg. CO_1460, copied in the Precognition, CO_3850 at pdf page 70.
42. This evidence concerning the door being on or off, including Mr Hogg's evidence about it, is considered in Chapter 3.
43. Mr Hogg 17 June page 12 and FI_0034 para 55 Inquiry Witness Statement of Mr Hogg
44. CO_1457
45. Mr Heath 9 June pages 74-75
46. FI_0013 para 295ff Inquiry Witness Statement of Mr Heath
47. CO_4024
48. CO_4021
49. CO_3850 from pdf page 43
50. CO_3850 from pdf page 53
51. CO_3850 pdf page 55
52. CO_3850
53. DB_0004 (from pdf page 68 in CO_3850)
54. CO_3850 from pdf page 73
55. CO_3850 pdf page 54
56. CO_3850 from pdf page 56
57. FI_0071 para 75 Inquiry Witness Statement of Ms McKie and CO_2219 Mackay enquiry statement of Ms McKie
58. CO_3850 from pdf page 73
59. CO_3850 pdf pages 73-76
60. CO_4023A. The involvement of Mr Moynihan, Senior Counsel to the Inquiry, in the preparation for the prosecution of Mr Asbury was the subject of my decision dated 16 March 2009 URL: http://www.thefingerprintinquiryscotland.org.uk/inquiry/files/2009-03-17%20Chairmans%20Decision%20regarding%20the%20Position%20of%20Senior%20Counsel%20to%20the%20Inquiry.pdf
61. Then Lord Mackay of Drumadoon
62. CO_4023
63. CO_4003
64. CO_3995
65. CO_3989
66. CO_4023 and CO_4023A
67. CO_3990
68. CO_3988
69. FI_0071 para 75 Inquiry Witness Statement of Ms McKie and CO_2219 Mackay enquiry statement of Ms McKie
70. Mr McMenemy 11 June page 135ff particularly at page 138
71. CO_3852 pdf page 146
72. FI_0013 paras 308-310 Inquiry Witness Statement of Mr Heath
73. FI_0013 paras 311-312 Inquiry Witness Statement of Mr Heath and CO_1721
74. FI_0013 para 313 Inquiry Witness Statement of Mr Heath
75. CO_3850 pdf pages 73-76
76. Mr Shields 9 July pages 20-22
77. FI_0071 para 75ff Inquiry Witness Statement of Ms McKie and CO_2219 Mackay enquiry statement of Ms McKie
78. The Inquiry Chairman 9 June page 115
79. Mr Heath 9 June pages 79-80; and FI_0013 paras 304- 305, 314, 317 Inquiry Witness Statement of Mr Heath, CO_1172 Mackay enquiry statement (supp) of Mr Heath and CO_2221 Mackay enquiry statement of Ms Dowdalls
80. FI_0071 paras 76-79 Inquiry Witness Statement of Ms McKie and CO_2219 Mackay enquiry statement of Ms McKie
81. A disciplinary investigation led by Chief Inspector Wilson was set up that day in relation to possible misconduct by Ms McKie. Mr Wilson reported on 26 August 1997 - see Chapter 10 paras 35-36. The disciplinary proceedings are not a matter considered by the Inquiry.
82. FI_0071 para 80 Inquiry Witness Statement of Ms McKie and CO_2219 Mackay enquiry statement of Ms McKie
83. DB_0202
84. Mr Graham 9 July pages 109-111 at page 109
85. FI_0034 paras 52-54 Inquiry Witness Statement of Mr Hogg
86. CO_3989
87. CO_0215
88. CO_0215 paras 70.14 and 71.3, the transcript of their evidence is SG_0523.
89. CO_0215 para 88
90. LM_0058 and LM_0111 (each has gaps and therefore they require to be read together)
91. LM_0058 and LM_0111 pages 29-33 ,54-55
92. LM_0058 and LM_0111 pages 40-41
93. LM_0058 and LM_0111 pages 35-36, 41-45
94. CO_0215 para 126.6
95. CO_0215 para 126.7
96. CO_0215 para 126.2-3
97. CO_0215 para 129.4
98. CO_0215 paras 129.16-129.18
99. CO_0215 para 129.17
100. CO_0215 paras 130.7, 130.11-12 and 130.23
101. CO_0215 para 130.14
102. CO_0215 para 133
103. Mr McKie 15 October page 7 and FI_0181 para 45 Inquiry Witness Statement (Part 1) of Mr McKie