McBride v Scottish Police Services Authority
| Jurisdiction | Scotland |
| Judge | Lord Hodge,Lady Hale,Lord Clarke,Lord Wilson,Lord Reed |
| Judgment Date | 28 June 2017 |
| Neutral Citation | [2016] UKSC 27 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 1 |
| Date | 28 June 2017 |
[2016] UKSC 27
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Reed
Lord Hodge
Appellant
Calum MacNeill QC Kenneth Gibson
(Instructed by Thorley Stephenson SSC)
Respondent
Brian Napier QC Tom Brown
(Instructed by Maclay Murray & Spens LLP)
Heard on 3 March 2016
(with whom Lady Hale, Lord Clarke, Lord WilsonandLord Reedagree)
The appellant ("Ms McBride") was unfairly dismissed. The Employment Tribunal ordered her reinstatement. The issue in this appeal is whether the tribunal erred in so doing.
The appeal stems from the controversy created by the disputed identification by four fingerprint officers in the Scottish Criminal Records Office ("the SCRO") of a fingerprint in a murder inquiry in 1997. They identified the print which was found at the locus of the murder as being that of Detective Constable Shirley McKie. David Asbury was tried and convicted of the murder, but his conviction was later quashed. As a result of the disputed identification, DC McKie was charged with perjury for giving evidence, in the trial, that she had had never been to the place where the fingerprint was found. During DC McKie's trial differences of opinion were expressed about the identification, and she was acquitted of perjury. A number of investigations followed which generated intense media interest and criticism of the fingerprint service in Scotland.
Ms McBride was employed as a fingerprint officer in the SCRO from 1984. She was originally employed by the Strathclyde Joint Police Board but her employment was transferred to the Scottish Police Services Authority ("the SPSA") with effect from 1 April 2007. Her dismissal from employment occurred on 1 May 2007 in the context of that transfer.
Ms McBride and three other officers were suspended from duties from 3 August 2000 until 20 May 2002, while investigations were undertaken. One investigation concluded that the four experts had not been guilty of any malicious wrongdoing. The Black report of February 2002 concluded that "no matters of misconduct or lack of capability have taken place in the work surrounding [the fingerprint which was the subject of the disputed identification]" and recommended that the four experts be returned to their normal positions without any disciplinary action being taken. On 20 May 2002 Ms McBride and the other three experts returned to work on restricted duties.
It should be explained that the SCRO fingerprint bureau provided services for the police and the Crown Office. The duties of fingerprint experts included signing reports on fingerprint identification for use in criminal trials and giving evidence at such trials. Because Scots criminal law requires corroboration, it was and is the practice for fingerprint experts to produce joint reports and for both experts to be available, if required, to give oral evidence in support of their findings, although frequently their report is accepted by the defence or, if it is not, only one of the two signatories gives oral evidence at trial.
On return to work Ms McBride and the other three experts resumed work on restricted duties but also undertook an extensive retraining programme over 12 to 18 months with a view to their return to full duties, including the signing of joint reports and giving evidence in court. The four experts sought to return to full duties but were not allowed to do so.
The problem was that there remained disagreement between fingerprint experts, within the SCRO, nationally and internationally, over the disputed identification. It was and is the task of prosecuting counsel in the Crown Office, under the direction of the Lord Advocate, to select witnesses to give evidence in trials. There were concerns in the Crown Office that the use of any of the four experts in a criminal trial would encourage defence counsel to cross-examine on matters relating to the DC McKie controversy in order to weaken the significance of the fingerprint evidence in the eyes of the jury. In September 2006, Lord Boyd of Duncansby, who was then Lord Advocate, gave evidence to the Scottish Parliament's Justice 1 Committee, which was inquiring into the SCRO and the Scottish Fingerprint Service. He was asked whether the Crown Office intended to call the fingerprint officers involved in the DC McKie case as expert witnesses in the future. In response he expressed the view that a trial in which any of those officers gave evidence might become a trial of the fingerprint officer rather than the accused and that this was a situation that he wished to avoid.
Ms McBride and her colleagues remained on restricted duties. In their evidence to the Employment Tribunal some of her colleagues stated that she fulfilled a worthwhile role and had made a valuable contribution to her department. Two managers who had direct experience of her work gave evidence that she was seen as trustworthy and conscientious. See para 43 below.
After the Scottish Government had announced its intention to establish the SPSA, the Justice Minister instructed Assistant Chief Constable David Mulhern to review the Scottish fingerprint service and produce an action plan to develop it "as an integrated part of the new Scottish Forensic Science Service". Mr Mulhern was appointed the interim chief executive of the SPSA, which was intended to bring together the work of five separate bodies. Because of the continued disagreements over the disputed identification, Mr Mulhern saw the creation of a new fingerprint service within the Scottish Forensic Science Service as of the utmost importance.
In the lead-in to the creation of the SPSA, Mr Mulhern made it clear that he did not want Ms McBride and the other three experts involved in the disputed identification to transfer to the SPSA. At a meeting on 12 September 2006 between representatives of the employer and trade union representatives he stated that there would be an opportunity to take redeployment within Strathclyde Police and that he had not considered the possibility that the fingerprint officers might return to full duties. Ms McBride wanted to return to full duties and expected that the question of her return to full duties would be discussed after her transfer to the SPSA.
Ms McBride's employment transferred to the SPSA on 1 April 2007. She was invited to a meeting on the next day to discuss redeployment. She asked her employer's representatives to disclose who had made the decision to consider only redeployment, and when and why that decision had been made. Her questions were not answered correctly until 27 April 2007.
On 1 May 2007 at a meeting chaired by Mr Tom Nelson, the SPSA's director of forensic services, Ms McBride said that she was willing to discuss redeployment but wished an opportunity to discuss reinstatement to unrestricted duties before she considered redeployment. There was no discussion at the meeting of her returning to unrestricted duties or of the status quo of restricted duties continuing. On the same day, Mr Nelson gave Ms McBride a letter in which he informed her that her employment would terminate forthwith because of her "inability to carry out the full range of [her] duties and the failure to identify any suitable redeployment options for [her]".
Ms McBride's internal appeal against her dismissal was unsuccessful. She presented a complaint of unfair dismissal to an Employment Tribunal. Before discussing the legal proceedings, I mention, first, the terms of her contract of employment and, secondly, later events.
Ms McBride's job description stated her job title as "fingerprint officer" and described her main functions "as a fingerprint expert" as being "to provide an efficient and effective identification support to operational police personnel". Of the 12 listed job activities, one and part of another had become excluded duties as a result of the SPSA's decision that she was not to give evidence in court. They were:
"2. To prepare court cases and give evidence as required.
3. To check and sign identifications prepared by other Fingerprint Officers and trainee Fingerprint Officers."
Ms McBride could not give evidence in court and so could not perform task 2. She was able to check identifications under task 3 above. But she could not sign the identifications because she was not allowed to give evidence in court. Other activities, such as examining the fingerprints lifted by scene of crime officers, assessing and verifying identifications, validating fingerprint classifications, preparing and collating statistical information, liaising with investigating officers, assimilating new technology and assisting in the training of fingerprint trainees, remained open to her.
A public judicial inquiry, "the Fingerprint Enquiry", chaired by Sir Anthony Campbell, reported in December 2011 (after the decision of the Employment Appeal Tribunal discussed below). It concluded among other things that Ms McBride and her colleagues had not acted improperly in identifying the fingerprint, although it was not DC McKie's fingerprint.
David Mulhern ceased to be the chief executive officer and left the employment of the SPSA in April 2009. The SPSA ceased to exist on 1 April 2013 and its rights and obligations were transferred to the respondent ("the SPA").
The Employment Tribunal ("the ET") in a judgment dated 26 January 2009 found that Ms McBride had been unfairly dismissed. Because the arguments which this court has heard in this appeal have included opposing interpretations of the ET's judgment and reasons and the appeal turns on whether the ET erred in...
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