Scottish Fingerprint Service
The next item of business is statements by Colin Boyd and Cathy Jamieson on the Scottish fingerprint service.
The Lord Advocate (Colin Boyd):
Presiding Officer, I wrote to you last Friday in the light of public comments that followed the settlement of the civil case that Shirley McKie had brought against the Scottish ministers. In the letter, I set out my role as the head of the independent system of prosecution in Scotland and explained why I took the decisions that I had taken.
I took the decision to prosecute Shirley McKie and I took the decision not to prosecute officers of the Scottish Criminal Record Office against whom allegations of criminal conduct had been made. The decision to settle the civil action that had been brought against the Scottish ministers was taken by the Minister for Justice, who will follow me with a statement about that and about how she is taking forward the process of change and continuous improvement in the SCRO.
The case against Ms McKie arose from her evidence at the trial of David Asbury in May 1997 that she had not been inside the victim's house during the investigation. The question whether that evidence could be proved to be false rested on fingerprint evidence. The matter was investigated by the police and by the then regional procurator fiscal for Glasgow, who submitted a report to Crown counsel in December 1997. I considered that report with the benefit of further input from the then deputy Crown Agent.
I decided to prosecute Ms McKie for perjury because there was sufficient reliable and available evidence to do so. At her trial, a conflict of evidence emerged over identification of the fingerprint mark. The evidence that was available to me at the time of my decision supported the view that it was Ms McKie's fingerprint. If that evidence had not been sufficient, the judge would not have allowed the jury to consider it. The evidence was tested in court and the jury acquitted her.
I also took the decision not to prosecute the SCRO officers. In June 2000, the Association of Chief Police Officers in Scotland asked senior officers of Tayside police—Messrs Mackay and Robertson—to investigate the discrepancy between the findings of the SCRO experts and those of experts who were instructed by ACPOS during an earlier review. I then instructed the regional procurator fiscal for north Strathclyde to inquire into allegations of criminality, specifically perjury. The Tayside inquiry was then widened to investigate that allegation and was asked to report its findings to the regional procurator fiscal. That inquiry was extended again in September 2000 to cover similar allegations in the Asbury case.
In October 2000, the Tayside officers submitted their report to ACPOS for its interest and to the regional procurator fiscal for his. They then made further inquiries to assist the fiscal's on-going investigation. His further inquiry involved detailed examination of the expert evidence that was available, including interviews with expert witnesses, apart from those accused, in order to assess their evidence. The RPF submitted his report to the Crown Office in July 2001. I considered that report, his analysis of the case, the material from the Tayside investigation and further advice from the then deputy Crown Agent and I decided that there should be no prosecution.
I had to consider not simply a broad allegation of criminality, but whether there was evidence that would support the prosecution of any individual for a specific criminal offence. In any such prosecution, it would be necessary to establish—to the high standard of its being beyond reasonable doubt—that there had been a misidentification. It was clear even then that there were independent experts who were not connected to SCRO and who were not prepared to say that. Those conflicting positions on identification of the relevant fingerprint evidence have never been resolved as between those who would have given evidence at a trial.
The Crown would also have needed to show, to the same high standard, that even if there had been a misidentification, those opinions were being held dishonestly and with criminal intent. The officers concerned had clearly maintained their position, notwithstanding that there was a contrary view, but that of itself would not have been sufficient to infer criminality. Therefore, in September 2001 I concluded that the evidence was insufficient to justify criminal proceedings. It did not follow that those who gave evidence must be guilty of perjury because Ms McKie had been acquitted.
I mentioned the level of recent comments about the case and I will deal specifically with one allegation, which concerns the Lockerbie trial. The SCRO was not involved in providing any fingerprint evidence for that trial. Officers from Lothian and Borders police carried out examinations in 1991 and officers from the anti-terrorist branch of the Metropolitan police carried out the fingerprint work from then on. Officers from both forces were listed as witnesses at the trial, but the fingerprint evidence was not disputed. The suggestion that the decision making in the cases was in any way connected is deeply offensive to me and—more important—to all those involved. It is entirely without foundation.
The independence of the Lord Advocate in making prosecution decisions is a long-standing convention, which is enshrined in the Scotland Act 1998, and the independence of those who prosecute in his name or hold his commission as procurators fiscal flows from his independence. The independence of those who make prosecution decisions is a cornerstone of any democracy.
There have been calls for a public inquiry into the cases, about which the Minister for Justice will say more. I would be deeply concerned—not for me, but for the integrity and independence of the system—if an inquiry attempted to revisit the decisions. Decisions on whether to take proceedings and on the nature of those proceedings are taken after independent and objective assessment of the available evidence and not as a result of opinions, theories or speculation. Such decisions must not be swayed by public opinion, media pressure, high-profile campaigns or other external factors.
More than any other case, the case in question illustrates the dangers that exist. I knew when I made my decision in September 2001 that it would not be popular with Ms McKie or her father. The predictable controversy could have been avoided had I decided to prosecute the SCRO officers, but to decide to do so would have been wrong. Such a decision would have been based on expediency and would not have been the result of an independent exercise of judgment.
My decisions in the case followed careful consideration by other prosecutors, including regional procurators fiscal and senior Crown Office staff. Such consideration is part of the system of checks and balances that are in place in our system. The decisions were taken properly in discharging my role as head of our independent prosecution system.
The issue is not about protecting my position as the current Lord Advocate. It is much more fundamental than that: it is about protecting the role of the independent prosecutor in the public interest. I take that role very seriously, and have done so in this difficult case, which has deeply affected the lives of all those involved.
I begin by reminding everyone about what lies at the heart of the issue. The case is about people, the decisions that they took and the impact of those decisions. It is also about processes—the systems within which those people operated.
The Lord Advocate, as the head of our independent prosecution service, has just described the investigations that were made and the decisions that were taken about the people involved. I will not second-guess those decisions, as some people are in danger of doing. We were elected to Parliament to make good laws for Scotland, but we are not above the due process of those laws.
I will set out clearly the changes and improvements that have since been made to the systems and organisations. I will also say why a public inquiry into the case would be unnecessary and could be an obstacle to moving our fingerprint service forward as we transform our criminal justice services.
Shirley McKie was acquitted of perjury on 14 May 1999. On 20 March 2000, Her Majesty's inspectorate of constabulary for Scotland began an inspection of the SCRO fingerprint bureaux.
On 22 June 2000, the Deputy First Minister and Minister for Justice, Jim Wallace, made a statement to Parliament. He acknowledged that independent experts had found that the print that was found at the Marion Ross murder scene was not Shirley McKie's print. He also expressed regret for her suffering. I am sure that everyone in Parliament shares that regret.
On 14 September 2000, Her Majesty's inspectorate of constabulary for Scotland published a report following its inspection of the SCRO fingerprint bureaux, which contained 25 recommendations that covered organisation, training, quality assurance and independent scrutiny. On 6 July 2001, the Lord Advocate announced that more than 1,700 cases that had been examined by SCRO fingerprint staff over 13 months had been independently reviewed and had been confirmed to be accurate. There had been no misidentifications.
On 7 September 2001, the Lord Advocate confirmed that there would be no criminal proceedings against the SCRO officers. In November 2001, Shirley McKie served proceedings against the Scottish ministers
On 20 March 2002, a scrutiny committee with an independent chair was set up by the Association of Chief Police Officers in Scotland to conduct a disciplinary investigation. It reported that there was no misconduct or lack of capability in the work of the SCRO officers and that no disciplinary action should be taken. On 17 March 2005, following three further inspections of SCRO, Her Majesty's inspectorate of constabulary reported that all its recommendations from 2000 had been discharged.
On 29 June 2005, the Executive announced that it was willing to settle the Shirley McKie case on the basis that the fingerprint misidentification was not malicious. Following that announcement, discussions between the parties continued right up until 7 February, when a settlement was reached.
An enormous amount has been done since September 2000 to change and improve our fingerprint services, which is why I am so concerned by the allegations that have been made about the adequacy of the Scottish fingerprint service as it is now. Those allegations are damaging public confidence, so let us look at the facts.
All the recommendations that were made by HMIC and ACPOS in the wake of the Shirley McKie case have been successfully implemented. As a result of those and other changes, we now have a national fingerprint service, national guidance on fingerprint standards and procedures, rigorous procedures to ensure that identification is independently verified, a structured training and development programme for each fingerprint expert, which includes annual external competency testing, and a service that operates to audited and internationally recognised quality standards.
The Scottish fingerprint service is not falling behind international standards. In fact, a number of features of the service put it ahead of the rest of the United Kingdom. It is the only UK service that subjects itself to annual testing by an external agency—a measure that the Association of Chief Police Officers in England has described as a model of good practice that it hopes to follow. We have not finished yet: as part of our plans for the new Scottish police services authority, we will create a new forensic science service for Scotland and the fingerprint service will be part of that new service.
As I have said, we intend to introduce a new standard of fingerprint evidence in Scotland—the non-numeric standard that is used in many jurisdictions around the world—which will further enhance the presentation and understanding of fingerprint evidence in our courts. We intend that the new standard will be in place by autumn 2006, following a thorough implementation and awareness programme.
I have described the extensive programme of renewal and modernisation that the Scottish fingerprint service has gone through over the past five years. I am determined that Scotland's fingerprint service should be acknowledged as being world class. I believe that we have an historic opportunity to realise that ambition by demonstrating independent oversight, scientific excellence and transparent adherence to standards.
I have today instructed the interim chief executive of the Scottish police services authority, Deputy Chief Constable David Mulhern, to bring forward by the end of March an action plan to develop the Scottish fingerprint service as an integrated part of the new Scottish forensic science service from April 2007. In preparing his action plan, Deputy Chief Constable Mulhern will draw on the best available scientific advice and expertise in organisational development and human resource management. I will make his plan available to Parliament and I will keep Parliament informed of his work over the next year.
A number of members have expressed support for an independent public inquiry. We need to consider carefully whether anything of value could be achieved by such an inquiry, how long it would take and what impact it would have on the process of reform while we were awaiting its outcome. A statutory inquiry could not rule on any person's civil or criminal liability and it could not rule on whether Ms McKie's claim against the Scottish ministers would have been successful had she not agreed to settle out of court without admission of liability. It could not rule on convictions or acquittals that took place in the past nor could it determine whether particular persons who were under investigation were guilty of criminal conduct. A public inquiry could not change the outcome of the criminal investigation, it could not reverse the findings of the disciplinary investigation and I very much doubt whether it would be the right way to secure further improvement of our fingerprint service.
I believe that we have to accept that neither Ms McKie nor those who it was alleged had wronged her will ever be reconciled: neither I nor a public inquiry can change that, but as a minister it is my job to learn lessons from the past while looking to the future.
Much has been made of the rights and wrongs in this case. I firmly believe that settling with Ms McKie was the right thing to do. It was right for her as fair recompense for all that she has been through. It was right for our fingerprint service and its staff to allow them to move forward as part of a new national forensic service and central police authority and it was right for the Executive as an appropriate settlement that was a defensible use of the public purse.
It is also right that we should defend and support the independence of the Lord Advocate in making decisions about prosecutions and it is right that we should acknowledge the integrity of Scotland's fingerprint service today and support the efforts to develop and improve that service so that it is recognised as being world class.
I invite members who wish to put questions to the Lord Advocate or the minister to press their request-to-speak buttons.
Before we proceed to questions, I advise members that I will rule any reference to the case of David Asbury to be inadmissible under rule 7.5.3 of standing orders in terms of sub judice.
I am also advised that Shirley McKie's case against Strathclyde police board and others is still technically sub judice, but I shall allow questions on that subject provided that they do not stray into matters that could prejudice the outcome of a settlement.
I put it to the minister that any reforms in the Scottish Criminal Record Office subsequent to the Shirley McKie case, however welcome, do not negate the need for public accountability for what went wrong in that case and any cover-up that then took place. I point out to the minister that those matters were not specifically examined in the HMIC report to which she referred.
I suggest that there are a number of questions in the Shirley McKie case that are left unanswered by today's statements. How could a fingerprint that was clearly not Shirley McKie's be wrongly identified as hers by not one but six individuals in the SCRO? If it was "an honest mistake" as the First Minister has alleged, when did it come to light and why was it not corrected immediately? Was the fingerprint—as has been alleged—manipulated, misrepresented and dishonestly presented in court and in subsequent presentations? Those are just some of the unanswered questions on which the Scottish public are entitled to answers.
The Lord Advocate refused to order prosecutions on the basis of evidence that was available to him in 2001—including the Mackay report, which alleged "criminality and cover-up"—so why has he not investigated or acted on the considerable subsequent evidence of criminality that has been presented to the Court of Session by Shirley McKie and which has also been seen by the Executive's lawyers?
Why, in the five and a half years after Jim Wallace apologised to Shirley McKie in Parliament, did he and then the current Minister for Justice refuse to compensate Shirley McKie? Why, during that period, did the Executive go to court time and again at taxpayers' expense to try to deny Shirley McKie the right to have her case heard in court and why only on the morning that the case was due to start—five minutes before it was due to start—did it decide to pay out £750,000 in settlement? Is not it the case that the Executive's objective all along was to prevent the truth of the matter from coming out in an open court?
I suggest to the Lord Advocate and the minister that although it might have started as "an honest mistake", the clear weight of evidence suggests that it very quickly became a systematic cover-up. By failing to order a full inquiry six years ago when evidence was first presented, the Scottish Executive became party to a massive cover-up of the truth, and will remain party to that cover-up until it accepts the overwhelming demand for a full public inquiry.
Of course, a full public inquiry cannot change what has happened, but it could find out exactly what did happen and could minimise the chance that it would happen again in the future. If the Executive really has nothing to hide in this case, perhaps the minister or the Lord Advocate will tell Parliament today what they fear from an open public inquiry.
Ms Sturgeon directed a couple of questions at me. I make it absolutely clear that, as far as I am concerned, I have nothing to fear from examination of what has happened, because I took the right decisions at the time. It would be quite wrong to revisit such decisions on criminal cases, because doing so would undermine the clear independence of the Lord Advocate and the prosecution.
On Ms Sturgeon's point about the Mackay report, I hope that I have made it absolutely clear that the decision that I took in 2001 was based not only on that report—which has apparently been leaked into the public domain—but on the investigation that was carried out by the then regional procurator fiscal of north Strathclyde, and on further advice that I received from the deputy Crown Agent. At that time, that information and the decision that there would be no proceedings was given to Ms McKie and was publicly intimated to the SCRO's officers. It is a question of law that I can no longer take criminal proceedings against those officers even if I wished to do so. I see no merit whatever in reopening a criminal investigation.
Ms Sturgeon raised a number of points in her question, and I will try to deal with a few of them.
On the length of time that it took to resolve the case, I am aware that my predecessor as Minister for Justice, Jim Wallace, has also intimated concern about that. However, I decided to bring the matter to a conclusion because I believed that that was the right thing to do. As with the Lord Advocate and the decisions that he took, I knew that my decision would not be universally popular and that some people might have preferred the matter to go to court. I believed—I still believe—that it was the right thing to do.
During that time, a number of issues had to be resolved through legal processes. However, once we had decided to try to move to settlement, I wanted it to happen. It was right and proper for various negotiations to take place at that point because, as I said, I believe that it was correct to offer a settlement that was fair to Ms McKie and that took account of what she had gone through during those years; that took account of the fact that she had not been able to go into employment; and which took account of her future prospects. However, the settlement had also to be justifiable as far as the public purse is concerned. I feel that we have achieved that.
Ms Sturgeon also said that we should learn from the past in order to make changes for the future. That is absolutely right in principle: we can, and must, learn from the past. Indeed, we have already learned from a significant number of inquiries into the Scottish fingerprint service and we have made changes—25 recommendations have been implemented.
I want to ensure that we focus on the future. We should have a world-class fingerprint service in Scotland. I have already said that we have moved forward, but we can do more. Some of the allegations and misinformation that have arisen in the past few weeks have not been helpful, so we need to restore public confidence; the measures that I have set out today look forward to improving the service further. Rather than our spending more time looking at the past, I believe that that course of action is the right way forward.
We know what went wrong in a number of situations in the fingerprint service. The HMIC report raised several issues, which have been acted on. The report made 25 recommendations on how to improve the efficiency and effectiveness of the service, including bringing together the various bureaux into one organisation and ensuring that the right leadership was in place, that work was verified independently, that extra training was carried out and that the service met international standards. We must seek to restore public confidence, but the way to do that is through the measures that I have laid out today.
We have had, arising from the tragic death of Marion Ross, nine years of confusion, allegation and disagreement and of alleged conspiracy, cover-up and criminality, which has affected the criminal justice system in Scotland. It has left a huge black cloud hanging over the Scottish Criminal Record Office and our fingerprint service. I must say that the minister's statement has dispelled none of that. How can the minister think that the public or any of the parties who are involved in this saga can possibly have confidence in anything other than an independent external judicial inquiry, with full powers to compel evidence and to get to the facts of the matter? Does the minister accept that anything less will leave that huge black cloud hanging over our fingerprint service indefinitely and will lay her and the Executive open to charges of bungling ineptitude, gross political irresponsibility and staggering complacency?
The Lord Advocate has ruled out a public inquiry. Does he accept that our prosecution service—the independence of which he rightly lauded—is placed in an especially sensitive position when it has to consider alleged criminal conduct in any organ of the criminal justice system, in which transparency and public confidence are paramount? Does he therefore also accept that when an extraordinary situation such as the one that we are considering arises, the independence of our prosecution service is compromised if politicians sit in judgment, and that the only way out of such a mess is to have an independent judicial inquiry, free from political interference, to ascertain the facts of the matter?
I am, of course, conscious that it is not for me as a politician to interfere in what the Lord Advocate does in his role as the head of the prosecution service. I will therefore confine my remarks to Miss Goldie's points about the Scottish fingerprint service. I will try to explain once again that it is not the case that nothing has happened since the reports that were ordered by my predecessor were produced and investigations undertaken as part of HMIC's inspection. As I said, the HMIC report contained 25 recommendations, which resulted in a substantial change process being put in place in the Scottish fingerprint service. We had independent verification: for 13 months, the work of the service was scrutinised more rigorously than happens anywhere else, and during that time no misidentifications came to the fore.
We must ensure that we make more progress. I want our fingerprint service to move ahead as part of the new forensic science service that we will create. I am disappointed that Miss Goldie feels that there will not be an opportunity for further scrutiny because, as I said, the action plan that I expect Deputy Chief Constable Mulhern to produce in a short time will be provided to Parliament and regular reports on progress will be given. It would be appropriate for any parliamentary committee that wishes to do so to take evidence on the action plan and to scrutinise the process. I do not believe that nothing has happened and that nothing is about to happen, which may be the inference. We tried to ensure that the recommendations were acted on, after which the service was again inspected; HMIC made it clear that all the recommendations had been implemented.
We are moving ahead. The Police, Public Order and Criminal Justice (Scotland) Bill will create a new governance body—the Scottish police services authority—that will ensure that independent people will oversee the process.
I am concerned about the impact that the on-going matters may be having on staff in the Scottish fingerprint service. We owe it to the staff in the service to ensure that that action plan is introduced and that we deal with any issues that are identified as part of that.
It is important to appreciate that there are quite a number of important checks and balances within our system. We have the police, who are independent of ministers; we have the Procurator Fiscal Service, which is an independent investigation body when it comes to allegations of criminal conduct by police officers and people who are associated with the police, such as the fingerprint officers in this case; and we have Crown counsel, who are independent. If criminal proceedings are taken, that evidence is tested in our independent courts of law; if not, I am accountable to Parliament and would be here answering questions. It is important to emphasise that no public inquiry could investigate whether people have been guilty of criminal offences. I would be concerned if we moved to a system in which, instead of putting evidence before a criminal court, we were putting evidence before a public inquiry. That would be entirely wrong.
I say to Miss Goldie and the rest of Parliament that it is in the most difficult and sensitive cases that the independence of the prosecutor has to be resolutely defended. It is in those cases that we should be careful about doing anything that undermines that independence. I believe that I am entitled to seek the support of Parliament in that.
Does the Lord Advocate agree that, if the Parliament values the separation of powers, it would be most dangerous for it to go down the road of holding any public inquiry that would question his decisions? Does he agree that that would set a precedent for other Scots to ask politicians to intervene in their cases?
Will the Minister for Justice assure me that she will counter directly public allegations about Scotland's fingerprint service? Will she attempt to get to the bottom of the damaging remarks made by Allan Bayle and others who claim, among other things, that there is a cancer within the SCRO? Will she be proactive in defending our system, challenging all those who seek to damage it and making any changes that are necessary?
I shall take the questions in the order in which they were put. I agree with Pauline McNeill that it would be dangerous to go down the road of questioning those decisions. I point out to Parliament that it is unusual for the person who is directly responsible for prosecutions in a democracy to be accountable to Parliament in the way in which I am. In England, for example, the Director of Public Prosecutions is not accountable to Parliament in the direct way that the Lord Advocate is. Recognising that there are issues to do with accountability, the United Kingdom Parliament, in the Scotland Act 1998, gave the Lord Advocate protections that allow me to refuse to answer a question that relates to a criminal case when I consider that to answer such a question is not in the public interest and, if I think fit, to withhold from Parliament documents relating to individual criminal cases. I can also direct those who hold commissions to do that. The UK Parliament thought that those protections were right and I believe that this Parliament would agree that they are right; they exist for the protection of the independence of the office of Lord Advocate.
I shall comment on Ms McNeill's questions on the current position and future of the Scottish fingerprint service. Allegations that have been made must be having an impact, both on public confidence and on the staff who work in the organisation. I am aware of suggestions that we should take action to stop some of those staff working in the organisation, but I do not accept that that is the way forward. People are doing a job on our behalf, and it is important that we have confidence in the work done by the Scottish fingerprint service. Equally, we must ensure that its work is constantly reviewed to make the public confident that it is up to accepted international standards.
Earlier, when I said that I expected Deputy Chief Constable David Mulhern to introduce an action plan, I also made the point that I would not be happy if it did not take account of international best practice. It is important that such best practice covers not only the scientific methods available from the wider forensic science field, but organisational culture and change management. Parliament will have an opportunity to examine that plan. I am sure Pauline McNeill and others will want to scrutinise it carefully.
Does the minister agree that it is vital that there is confidence in our justice system as a whole and the fingerprint service in particular, not least because of the more than 40 cases that are being analysed today by the service in its contribution to the detection and prevention of crime?
The minister will be aware that the Justice 2 Committee is scrutinising the Police, Public Order and Criminal Justice (Scotland) Bill, which will reform the fingerprint service and establish the Scottish police services authority. Does she agree that if members have serious, well-founded concerns about the standard of fingerprint testing, the efficiency and effectiveness of the reforms that she has outlined and the implementation of the recommendations of three HMIC reports, they should bring those concerns to the committee, given that the Parliament is able to act on them—if agreed to—through legislation?
Does the minister also agree that members must desist from innuendo and reckless statements that undermine the independence of not only the prosecuting authorities but HMIC and the integrity of its reports? If they are not prepared to bring them to the committee, they should desist from making such statements.
I agree that it is important that the public have confidence in the justice system as a whole. That is why the Executive is keen to reform many areas of the justice system. Jeremy Purvis made a valuable point about the scrutiny of the Police, Public Order and Criminal Justice (Scotland) Bill. I hope that members across the chamber will familiarise themselves with its details.
Hear, hear.
I hear calls from the other side that people are already doing so. I also hope that they will inform themselves about the current position of the SCRO, the work that it has undertaken and the changes that have been made. Last week, I gave a detailed answer to a parliamentary question from Mr Alex Neil outlining some of those changes, and I have tried to focus on them again today.
I ask the Lord Advocate the same question as Nicola Sturgeon asked—which was not answered—on the new evidence on criminality within the SCRO that was submitted to the Court of Session as part of the negotiations with the McKie family. What is he going to do about that new evidence of criminality in the SCRO?
Is it true that the Lord Advocate received a letter in August 2001 from an officer in the SCRO that claimed that after he commenced duty there, he was shocked and appalled by the level of malpractice? What did the Lord Advocate do in response to that letter? Did he carry out an inquiry to determine what alleged malpractice was taking place?
If the misidentification of Shirley McKie's fingerprint was supposed to be an honest mistake, what about the misidentification of another fingerprint? Is that also an honest mistake?
The Lord Advocate is right to say that he has to act as the independent head of an independent prosecution service. However, his failure to order a public inquiry is creating the impression that decisions are being taken for political reasons rather than for reasons of justice.
I answered the question that Ms Sturgeon put to me. I said that, as a matter of law, having publicly announced that no proceedings would be taken against the Scottish Criminal Record Office officers, and having informed them of that, I would be barred from prosecuting. In any event, I see no merit whatever in reopening a criminal investigation five years on.
Mr Neil asked me about a letter that I was supposed to have received in August 2001. I have no recollection of that letter, but I will have the matter investigated.
I note that Mr Neil's question raised the issue of malpractice. That, of course, would be a matter for Her Majesty's inspectorate of constabulary.
The second fingerprint relates to a case that is currently before the court. I do not think that it would be appropriate to answer Mr Neil's question.
Parliament was abused in 2001, and there is a danger of its being abused again, judging by the comments that we have heard recently.
To put the record straight, will the Lord Advocate confirm that the four SCRO staff are not the only ones to have positively identified the fingerprint as Shirley McKie's? Peter Swann, the independent fingerprint expert who was chosen by Ms McKie's defence lawyers, also made a positive identification, as did Malcolm Graham, another eminent independent fingerprint expert. The fact that those two experts independently agreed with the identification fatally undermines any claim of malice on the part of SCRO staff—one of whom is a constituent of mine. Neither a public nor a parliamentary inquiry will give the four SCRO staff the opportunity to defend themselves in court against allegations that have been made against them in the action brought by Shirley McKie. The courts are the proper place for such allegations to be dealt with—not here.
Does the Lord Advocate accept that those people, whose rights have not been given due consideration throughout these proceedings, feel strongly that they are the ones who have been denied justice?
I can confirm that other experts, independent of the SCRO, agreed with the SCRO identification.
One of the reasons for my concern about the present allegations is that I do not believe that allegations of criminal conduct should be made anywhere other than in a court of law. People are presumed innocent throughout a criminal investigation. That presumption of innocence remains with the SCRO staff. That is a basic part of our democracy and our civil liberties, which I believe we all hold dear.
I am sure that everyone in the chamber would agree that this whole affair calls into question the integrity of the criminal justice system in Scotland. It is important that that integrity be restored as quickly as possible. I hear everybody agreeing with me.
Does the minister accept that the public will see from this debate that she is offering yet another inquiry to be conducted out of the public eye, behind closed doors? This time there is an action plan by Deputy Chief Constable Mulhern, against the background of similar work by the Association of Chief Police Officers and HMIC. She mentioned in her statement that independent experts have considered 1,700 cases and found no other misidentifications—yet there are two misidentifications in this case. As the Lord Advocate has said in another statement, fingerprint evidence is not an exact science.
Will the minister accept that, rather than tell Parliament what a public inquiry cannot achieve, she should understand that a public inquiry would serve the public well and offer all sides the chance to clear their names? It would compel witnesses to appear and give evidence. That would be the way to restore confidence in the criminal justice system.
I thank Mr Fox for again outlining the number of times that this particular set of circumstances has been looked into. I again make clear what I hoped that the statements by the Lord Advocate and me had already made clear, which is that an inquiry of the sort that Mr Fox has described does not offer the opportunities that he suggested that it would. The Lord Advocate has outlined clearly why taking matters out of the proper setting of the courts of law in our democracy is a dangerous route to go down.
As I said in my statement, I think that the position in which all sides have found themselves is extremely difficult. There is no doubt that the situation has been difficult for Ms McKie and the people who are close to her. It has also been difficult for the fingerprint officers and many of the other employees of the SCRO. As I said in my statement, I took the view that, however many inquiries we might have, it would be unlikely that those two sides would ever be reconciled. I still hold that view. I took the decision that we should try to bring the matter to some kind of conclusion in order to give some kind of closure to those who need it and to allow us to move on. However, I did not want us simply to draw a line underneath events without learning from them. It is vital that we continue to examine what is happening at the SCRO and that we take the steps that I have outlined today. I keep stressing that Parliament will have the appropriate opportunity to consider that work as we proceed because I will present regular reports on it.
It is also important that we do not lose sight of the fact that this whole sorry saga started with the murder of an innocent woman, Marion Ross, whose killer has still not been brought to justice seven years after her tragic death. For her family, there has been no justice from Scotland's criminal justice system. What assurance can the minister give Parliament that everything possible is being done to ensure that that crime is solved and that the perpetrator is finally brought to justice? Surely she must realise that only a judicial public inquiry would establish the facts surrounding the botched murder investigation.
I do not want to stray into any inappropriate territory, but I think that we are in danger of confusing issues. It is not for me as the Minister for Justice, a politician, to instruct the police on how to do their job. That is an important point. Neither the police's handling of inquiries nor prosecution decisions should be interfered with in that way. Of course I am well aware that Marion Ross's murder was the point at which events started, but it would be quite wrong of me to suggest to the police or the prosecution service how they should proceed with that investigation.
Does the minister find it totally incredible that Nicola Sturgeon has made allegations of systematic cover-up? Does the minister think that it is the mark of a cover-up to agree to an inspection by Her Majesty's chief inspector of constabulary, with all the integrity and independence that are associated with that post and its individual office holders? If the chief inspector of constabulary were to have discovered criminality, his remit would have been to report it to the procurator fiscal and the chief constable. The Lord Advocate exercised his independent role as head of the prosecution system by conducting independent investigations into the allegations of criminality that were made. Is it the sign of a cover-up to come to Parliament within 24 hours of receiving the interim findings to make a statement to the effect that the SCRO fingerprint bureau was not fully effective and efficient, to agree to the publication of that report and to follow that up with the Association of Chief Police Officers in Scotland by ensuring that the report's recommendations will be implemented? That is far from being a cover-up.
Does the minister accept that the responsibility that ministers—both she and I—discharged was that of securing the implementation of those recommendations and of taking further measures, such as those that she has outlined today? Will she confirm that if she has to account for her stewardship, she will, like me, stand ready to do so robustly and with nothing to hide? Does she accept that it is the role and duty of Parliament to hold ministers to account and that it would be a bad—and a sad—day for Parliament if we ever felt it necessary to outsource one of our primary responsibilities?
I am well aware of the role that Mr Wallace, in his capacity as the Minister for Justice at the time, played in securing those investigations and advancing the recommendations to make improvements. I have picked up on that work.
It is important to stress that we need to ensure that if public confidence in the system has been damaged, it is restored. That is why Mr Wallace is absolutely correct in saying that the Parliament has the appropriate opportunities available to it. Parliament has the opportunity to bring ministers to committee or to the chamber to be held to account for the work that they are taking forward.
I have laid out today a clear way forward and I intend to take it. In due course, I also intend to report back to Parliament, as promised.
Does the Lord Advocate accept that an essential element of public confidence in the justice system is that decisions to prosecute or not to prosecute are taken on a consistent basis and that they are seen to be taken on that basis? Does he accept that his decision to prosecute Shirley McKie and his decision not to prosecute the SCRO officials are considered by many not to have been taken on a consistent basis? Does he further accept that, in the interest of ensuring public confidence in the consistency of the decisions that are taken in the independent judicial system, he should order a public inquiry into this issue?
I am sorry, but I could not disagree more. Every decision has to be taken on the facts of the individual case. It is not a question of saying that this, that or the other person is guilty—one cannot have a consistent approach in that way. That would be completely the wrong thing to do. One has to marshal the evidence against each individual accused, determine whether that evidence supports a criminal charge and lay it before the court. It is not a question of applying some supposedly consistent approach.
I believe that on these occasions it is customary for members to preface their question to ministers by welcoming the comments that they have made, but I will go further than that. Given the wild, inaccurate and almost hysterical coverage of this affair in recent weeks, today's statement of facts from the Minister for Justice and the Lord Advocate has been like a breath of fresh air.
I welcome the fact that the Lord Advocate has come to Parliament and explained the reasoning behind the various decisions that he has taken in this matter. I welcome in particular his explanation that he was not motivated by expediency, public opinion, media speculation or one-sided campaigning—I hope that the public is reassured by that.
I ask the minister and the Lord Advocate to restate and confirm some of the facts that I heard in their statements, the significance of which may have been overlooked by some of those who are listening to the proceedings. Will they confirm that it was the McKies who instructed Mr Peter Swann, the independent fingerprint expert, to look again at the identification that the SCRO fingerprint officers had made in the McKie case? His finding confirmed the accuracy of the fingerprint officers' identification. It was only after that that the McKies went elsewhere for their independent fingerprint advice.
I also ask—
Briefly, please.
Will the minister and the Lord Advocate confirm that the fingerprint officers who were involved at the heart of this affair had every piece of their work in the year before and after the McKie case examined and rechecked by independent experts and that their work was found to be accurate? Do the minister and the Lord Advocate agree that it is not in the public interest for fingerprint officers to be tried by the media when they have shown honesty and integrity throughout?
Ken Macintosh laid out a number of points, and I will start with the last one. I hope that the Lord Advocate and I set out very clearly today that the place for any trial is in the proper court and not in any other place. As I laid out in my statement, it is the case that the fingerprint officers—not only those at the centre of this case but those involved in a range of cases—were scrutinised very thoroughly. Indeed, they were scrutinised more closely than would happen elsewhere. At a certain point, the Lord Advocate took the view that that additional scrutiny was no longer required because the fingerprint officers' work had been shown to be up to standard.
I want to re-emphasise an important point that I made in my statement: we must always look to improve. Today's announcement is not new; the matter has been in the public domain for some time. We have indicated that we intend to move to the non-numeric standard. We have an implementation programme in place; we are in the process of ensuring that it is rolled out; and we have now given a timeline for that work to be undertaken. I hope that MSPs will take the opportunity to familiarise themselves with the process and scrutinise it where appropriate.
Does not this whole fiasco demonstrate the untenable situation whereby the head of the prosecution service is also a member of the Executive?
In view of the Minister for Justice's statement on BBC radio the other day that the Executive could not order a public inquiry because decisions on whether to prosecute are a matter for the Lord Advocate rather than her, will she or the Lord Advocate confirm that a decision on whether to hold a public inquiry is quite different from a decision on whether to prosecute? There is at least one precedent for the Scottish Executive ordering an independent public inquiry—namely the Fraser inquiry into the Holyrood project—so why can we not have a public inquiry into the McKie case?
I will clarify what I am reported to have said in a media interview. I was making it clear that it would be wrong for me as a minister to interfere in any prosecution decisions—a point that has been stressed again today. Of course Executive ministers have powers to order inquiries if they believe that that is the correct thing to do, but it is of fundamental importance that the head of our prosecution service be able to take decisions about prosecutions by weighing up all the facts and information that he has before him without political interference. I find it rather astonishing that members suggest today that there should be political interference, because they would be the first to complain if I tried to interfere in the Lord Advocate's decisions.
I agree with the minister's comment about confidence in the justice system and refer her to remarks that I made after Jim Wallace's statement on the case in 2000, when I emphasised that point. I point out that all that I warned the Executive about then has come to pass in the six years that have passed, as the justice system is under question.
I will question the minister on her statement that more than 1,700 cases that were examined by SCRO fingerprint staff over 13 months have been independently reviewed and the identifications confirmed to be accurate. Does it not seem strange that four SCRO staff members got it wrong in this one case? They were right in 1,700 cases, but wrong in just one. I ask the Executive and the Lord Advocate to publish, in the spirit of freedom of information, the McLeod and Mackay reports. They have not been made available to the general public, but perhaps they should be.
The Lord Advocate stated that the judge would have determined whether there was sufficient evidence to take a case against Miss McKie. I put it to him that, if a case against the SCRO officers had been put, the judge would have made a similar judgment. I cannot understand why the Lord Advocate did not give the judge that opportunity.
Mr Gallie referred to comments that he made in 2000. I confess that I do not have his words to hand and therefore cannot focus on those specific comments, but I hope that my remarks have given him some assurance that the various measures that were talked about in 2000 have been put in place and that there has been significant change since then. He has taken a responsible approach to making representations on Miss McKie's behalf at various stages, so I hope that he will accept my remark that we must try to allow her some closure on the matter and that he will take it in the spirit in which it is intended to be taken.
Mr Gallie referred to particular reports. I will allow the Lord Advocate to deal with the Mackay report, but it is not our view that there would be anything to be gained from the publication of the McLeod report. The Executive commissioned that report as part of its defence in the civil action, had it gone to court. Matters have now been settled out of court and I hope that I have assured the Parliament that that was the fair, right and proper thing to do in the circumstances.
I will deal with the two points that were directed at me. The decision to take criminal proceedings, as a quasi-judicial act done either by me or by one of my advocate deputes acting in my name, is not one that is ever taken lightly, particularly when the offences that are the subject of proceedings are serious. It is quite improper for me, or for anybody else for that matter, to subject citizens to a criminal trial if, in the judgment that I form, there is insufficient evidence to take the case to court. I hope that members will understand that that is the basis on which our criminal justice system is formed.
As far as the Mackay and Robertson report is concerned, I emphasise to Parliament that it is only one part of a wider report that came through the regional procurator fiscal for north Strathclyde. Such reports, including reports by police officers to procurators fiscal, are regarded as highly confidential. I will give members the reasons for that. First, police officers must be free to detail all the information and evidence that they have, together with any other information that might be relevant to a prosecution decision. They must be free to do so without the threat of public disclosure, which might open them up to criticism or to civil proceedings for defamation. Secondly, I return to the proposition that I have put continually before the Parliament: that the only proper place for allegations of criminal conduct is a court of law. I will not support the idea of putting into the public domain information that might give rise to trial by media. For those reasons, I will not publish either report.
My questions are to the Lord Advocate, and they were intimated to him in writing earlier today. Will he confirm that, prior to the trial of Shirley McKie for perjury, an independent verification, or blind test, was carried out at the behest of either the SCRO or the prosecution services to check the accuracy of the identification by the SCRO of the fingerprint or fingerprints as belonging to Shirley McKie? Was that blind testing carried out prior to Shirley McKie's trial for perjury? Will he confirm that the Crown Office knew of the blind testing and that it was informed of its outcome before the trial? Will he confirm that that evidence was withheld from the Shirley McKie defence team, and was not disclosed prior to her trial?
I thank Fergus Ewing for having given me prior intimation of his question. Regrettably, it was received in my office at 2 o'clock this afternoon, and I will not be able to answer it in full.
I understand that Fergus Ewing is referring to an exercise that was carried out when the elimination print was being examined. It was put before five other SCRO officers. The results were that two officers who examined the print did not find as many as 16 identical characteristics—which is the established standard for identification—but that, on the characteristics that they found, they were each satisfied that the print was that of Shirley McKie; a third officer preferred to examine the prints under a magnifying glass before giving a view, but did not do so; a fourth preferred to examine the print in daylight, but did not do so; and a fifth officer marked up 16 points of comparison on the lower part of the print, with none in disagreement, and was satisfied that it had been made by Ms McKie.
That exercise, as I understand it—and assuming that we are referring to the same thing—was carried out in February 1997, which was clearly before the trial for perjury.
Fergus Ewing asks:
"Will the Lord Advocate confirm that the Crown Office knew of the blind testing and that it was informed of its outcome before the trial?"
Let me be clear. I do not wish to mislead Parliament on this matter, so I wish to be absolutely accurate before I fully answer that question, and I promise that I will write to the member as soon as that is the case. My recollection, however, is that the matter came to light during the investigation of the SCRO officers, and that it was therefore not known to the Crown at the time. I will confirm the position in writing.
That concludes questions to the Minister for Justice and the Lord Advocate.
On a point of order, Presiding Officer. With the greatest respect, I believe that a number of matters were raised during this question session that were not necessarily addressed in the statements from the minister or the Lord Advocate. Fergus Ewing raised a number of those in the final question, in response to which the Lord Advocate said that he would reply in writing. Is it entirely appropriate that we should not all know what the Lord Advocate tells Fergus Ewing in writing?
I wonder also about the process that we have just followed, whereby two ministers with completely different responsibilities answered questions at the same time, when it was not clear which minister should be expected to answer.
As far as the Lord Advocate and Mr Ewing are concerned, they are both devoted to openness and I assume that the response will be made public in due course.
That concludes this item of business. I will allow a slight pause for members to leave the chamber.