These are the three rulings I gave in written form during the course of the Inquiry.
1. 3 February 2009: Specialist assistance for the Inquiry
This Decision deals with the issue of specialist assistance for the Inquiry.
At the Procedural Hearing on 21 November Mr Moynihan, Senior Counsel to the Inquiry, indicated that consideration was being given to instructing Professor Christophe Champod of the University of Lausanne as the Inquiry's expert witness, and the role that he might fulfil if instructed.
In the light of the reaction to this proposal at the Hearing, I asked Counsel to the Inquiry to reconsider the proposed approach: namely, the use of a single individual, Professor Champod, as the Inquiry's expert witness undertaking all the tasks Mr Moynihan had outlined.
In the intervening period, with the Inquiry team, I have been addressing this matter most carefully, taking into account the views expressed by core participants both at the hearing and subsequently. This has inevitably taken some time.
Fingerprint procedures, in the broadest sense, lie at the heart of this Inquiry. I recognise that various individuals connected with the Inquiry, whether as core participants or potential witnesses, are themselves experts. However, having regard to the specialised subject matter of the Inquiry and my statutory duties, I have decided that it is essential that the Inquiry has, in addition, expert input from elsewhere.
I am not persuaded that there is any substantive reason to rule out Professor Champod. In a specialised area like this it is inevitable that persons may have some sort of association with those involved, or a general interest in the subject matter, but I am satisfied that Professor Champod is sufficiently independent for the Inquiry's purposes.
However I am persuaded that the Inquiry ought not to adopt Mr Moynihan's proposal to use Professor Champod alone. Instead, in order to ensure balance, the Inquiry will proceed with a modified approach, which is to obtain expert assistance from more than one source.
At this stage in the Inquiry's development, I have decided that the tasks identified so far should be distributed in the following way.
Dr Stephen Bleay of the Home Office Scientific Development Branch will be asked to work on various technical tasks - developing negatives, producing high resolution copies of photographs, and examining such of the relevant original exhibits as still exist. The latter is the task outlined by Mr Moynihan on 21 November, "to examine the original material (that is the door frame, the gift tag, the tin and the bank note) to see if any current method could assist in retrieving any better or new image of the marks."
Depending on the outcome of this work, Dr Bleay may be asked to do further work on the original material.
On 21 November Mr Moynihan outlined a review which he proposed that Professor Champod should undertake: "Using the existing reports and also witness statements, Professor Champod will be asked to assist the Inquiry team to identify the specific areas in dispute and to facilitate focused questioning on disputed details at the hearings of the Inquiry." He went on: "Should there be any experimental work that may help to elucidate matters, then Professor Champod would be asked to carry this out and the results of any such work would form part of his evidence."
Again in the interests of balance, and recognising that Professor Champod does not claim to be a fingerprint practitioner, I have decided that this review ought to be done by more than one person. Professor Champod will be asked to do the review, but, in addition, my intention is that one or more others, who are fingerprint examiners or practitioners, will also be instructed. That will allow Counsel to have the benefit of a range of views. I am not yet in a position to indicate who the other individual or individuals will be. The Inquiry team are pursuing some leads, but I would welcome suggestions from core participants. If there is not consensus, I will decide upon how many and who should be instructed.1
On 21 November, Mr Moynihan indicated that the Inquiry team and I had had a preliminary meeting with Professor Champod. Two points arise from that meeting.
Firstly, Professor Champod presented a layman's guide to fingerprints. I found that helpful and I consider that such a presentation might be helpful at an early stage of the hearings for the benefit of members of the public. I currently consider that Professor Champod should give that presentation.
However, as we go forward, it may emerge that it would more appropriately be given by another, and I therefore reserve my decision on this.
Secondly, I am aware that Professor Champod's research interests include the application of statistics in the analysis of fingerprints. On that topic it will also be my intention to seek evidence from more than one source.
At the Procedural Hearing, Mr Moynihan proposed that "The Inquiry team will review the witness statements, any report from Professor Champod and documented productions to identify ¿ the 'key issues'. ¿ The Inquiry team will determine which witnesses they would propose ¿ to call to give oral evidence and the lines of questioning they would propose to put to the witnesses. That analysis would be circulated to core participants for their consideration and comment."
It seems to me that that approach is appropriate subject to the variation, in the light of my decision above, that Professor Champod will not be the only source of such a report. The analysis will take into consideration the full range of contributions that the Inquiry team receives. Subject to any unexpected developments, I intend that the Inquiry proceed on this basis.
Some of the work that I have mentioned, such as the development of negatives, is technical assistance. However, where opinions are provided or reports prepared for the Inquiry I intend that these will be in writing and made available, and that the authors may be called as expert witnesses at Inquiry hearings. Within the context of law and practice in Scotland, it will be for me as Inquiry Chairman to accept or reject any expert evidence that I receive.
2. 16 March 2009: Senior Counsel to the Inquiry
This Decision is with regard to the position of Senior Counsel to the Inquiry.
On 21 April 2008 I appointed Mr G.J.B. Moynihan Q.C. to be Senior Counsel to the Inquiry. Since then Mr Moynihan, together with Miss Ailsa Carmichael Q.C., has been working under my direction as to the lines that the inquiry is to follow.
In the course of gathering documents the Crown Office file in the case of HMA v David Asbury was received in the offices of the Inquiry on 23 January 2009. When it was read by Mr Moynihan on 28 January 2009 he found that as an advocate depute in 1997 he gave the instruction to indict Mr Asbury in the High Court and directed also that further inquiries should be made. Mr Moynihan informed me of this development at once and he advised me that he had had no recollection of being involved in the prosecution of Mr Asbury in this way nor did he have any present recollection of having been involved.
I decided that it was not in the public interest for the Inquiry or Mr Moynihan's role in it to be suspended while his position as Senior Counsel to the Inquiry was under review. There are considerable ongoing costs being incurred and I was anxious that the indicative date for the first public hearing should be met. I was prepared to appoint another senior counsel in place of Mr Moynihan, if it proved to me essential to do so. However, I appreciated that this would cause delay and might not turn out to be necessary once I had considered the position in detail.
The terms of reference of the Inquiry are:
At a procedural hearing of the Inquiry on 21 November 2008 I stated, in general terms, the issues that I was minded to examine though I made it clear that I would keep these under review. One of these issues was the identification and verification of the marks labelled Y7, QI2, QD2 and XF.
At the preliminary stages of the case of HMA v David Asbury the evidence was that his mark XF had been found on a gift tag attached to a parcel in the home of the late Marion Ross. He had worked there in the past but the gift tag and contents of the parcel to which the tag was attached could not have been in her house at the time that he did this work. When he was asked during an interview if he had murdered Miss Ross he responded, after a pause of 38 seconds, that he had not. He also said that he had not been in Marion Ross's house since the work he was engaged on had been completed.
At Mr Asbury's home a quantity of money was found in a tin in his bedroom. Five days after the discovery of the body of Marion Ross was made public Mr Asbury disappeared from home overnight, leaving a note for his mother. He returned home the following day.
Subsequently in a voluntary statement Mr Asbury said that he had been in Miss Ross's house after the work had been finished and that this was about two or three days before she was murdered. The circumstances were that he thought his car had broken down and he called at Marion Ross's house to ask if he could use her telephone to call his mother to come and collect him. As he was about to use her telephone he realised that his car had not broken down but had run out of petrol and so he did not make the call. After this Miss Ross showed him round the extension he had helped to build earlier so that he could see it when painted and carpeted. He added that he had used the lavatory before leaving the house.
On the basis of this evidence an advocate depute (not Mr Moynihan) authorised the local procurator fiscal to apply to the court to have Mr Asbury fully committed for trial on a charge of murder.
After full committal by the Sheriff had taken place, evidence was obtained that the mark QI2 (on the tin, containing a substantial sum of money, found in the bedroom used by Mr Asbury) had been identified as that of the late Marion Ross. It was after this that the case was referred to Mr Moynihan, in his capacity as the duty advocate depute, and he directed that Mr Asbury be indicted for murder. In my view this cannot be regarded as a controversial decision as the evidence was prima facie now stronger than it had been when the earlier decision had been made by the Court to fully commit Mr Asbury for trial in solemn form. It is significant that at the trial of Mr Asbury leading to his conviction it was not disputed by the defence that the mark XF was his or that QI2 was that of the deceased Marion Ross. It was much later that a question first arose about the identity of QI2 and the mark XF has never been the subject of dispute.
By the time of Mr Moynihan's involvement the tin and money had been seized as productions. Y7 and QI2 had both been found and photographed and SCRO examiners had provided opinions that the donors of the marks were respectively Shirley McKie and Marion Ross.
While it could in no sense be decisive of the issue as to whether Mr Moynihan should continue as counsel to the Inquiry I decided that each of the core participants should be informed about the position and asked if they had any objection to Mr Moynihan continuing as Senior Counsel. It was appropriate to begin by informing Digby Brown, solicitors, as one of their clients, David Asbury, was potentially the person most directly affected. The Crown Office file was given to the Inquiry under an obligation of confidentiality and I considered that all core participants, subject to the same obligation, should be offered an opportunity to inspect the relevant part of the file for themselves if they wished to do so.
All of the core participants other than those represented pro bono by Mr David Russell of Towells, solicitors, raised no objection. Mr Russell, on behalf of the core participants Mr Peter Swann and Mr Malcolm Ross, expressed a strong objection to Mr Moynihan continuing in the Inquiry. Although it was explained that it is envisaged that material from the Crown Office file will be put in the public domain in due course, Mr Russell declined to examine the file by reason of the constraint with regard to confidentiality. He has provided me with comprehensive written submissions in which he has asked for a public sitting with a number of witnesses that he named called to give evidence.
After careful consideration I have decided that such a public hearing would not assist me in arriving at a decision on this issue especially when I have had such an extensive written submission already from Mr Russell.
Decision
Over eleven years have passed since Mr Moynihan had a part in the prosecution of Mr Asbury. While it might have been expected that the subsequent publicity surrounding the prosecution of Shirley McKie would have reminded him of his earlier role in the prosecution of Mr Asbury I accept that this did not happen. Given the way in which the Crown Office operated at that time with different advocate deputes looking at files at the various stages of a prosecution and the fact that he did not conduct the trial of David Asbury it is not surprising that he has no recollection of it. Since he had no such recollection he was under no duty to disclose it to me prior to his appointment.
In this Inquiry it is for me to inquire as well as to report and to decide who are to be and who are not to be called as witnesses; I direct the lines of inquiry to be followed; and I give instructions as to who should be interviewed as potential witnesses. The role of counsel to the Inquiry, important as it is, has to be seen in this context.
The issue to be decided by me is whether Mr Moynihan's involvement, as described earlier, in the prosecution of Mr David Asbury could vitiate the fairness and impartiality of the inquiry that I am undertaking if he continues in the role of senior counsel. The conclusion I have reached is that a fair minded person, who is neither complacent nor unduly sensitive or suspicious, knowing the relevant facts, would not consider that there is a real as opposed to fanciful possibility of this happening. Accordingly I have decided that Mr Moynihan should continue to act as Senior Counsel to the Inquiry.
3. 5 November 2009: Shirley McKie and the Inquiry
This decision is about Shirley McKie.
Shirley McKie provided a written statement to the Inquiry dated 2nd June 2009.
The Inquiry issued a notice (the Notice) to Shirley McKie, dated 1st September 2009. The Notice informed her that in terms of the powers conferred on me by section 21 of the Inquiries Act 2005 I required her to attend at certain oral hearings of the Inquiry to give evidence.
She then submitted a claim to the Inquiry seeking to be excused from compliance with the Notice on medical grounds. She provided medical evidence in support of her claim.
Thereafter I appointed a suitably qualified medical practitioner who had not previously treated or reported upon Shirley McKie to examine her and report to me. That medical practitioner has carried out an examination of Shirley McKie. He has provided a report to me on soul and conscience.
I have considered that report, Shirley McKie's claim and the supporting medical evidence submitted by her.
I have also considered the information that she could provide to the Inquiry.
She can assist the Inquiry in respect of one principal matter: whether she entered the locus, 43 Irvine Road, Kilmarnock, at any time before mark Y7 was found. Her written statement to the Inquiry deals with this matter.
She gave evidence on this matter, on oath, at the High Court of Justiciary in the trials Her Majesty's Advocate v Asbury and Her Majesty's Advocate v McKie. The Inquiry has the relevant transcripts of the proceedings of these trials.
Her written statement to the Inquiry also deals with the allegation that she committed perjury in the trial Her Majesty's Advocate v McKie.
Having considered the information already available to the Inquiry in relation to these matters and the reports provided to me I have determined that it is not reasonable in all the circumstances to require Shirley McKie to comply with the Notice. Therefore, I have revoked the Notice on these grounds.
1 Chapter 24 describes how this exercise came to be abandoned.