Pardon bid fails for convicted Glasgow killer John McIntosh who went to his grave protesting innocence

He took his own life at home seven years ago after he spent nine years in jail for a drug-fuelled killing of the taxi-driver. He had been fighting in vain to clear his name after another man claimed to be the killer.

The former shipping container industry worker, who died aged 38, told his family he felt let down by the legal system and repeated this in messages to Twitter followers hours before he took his life. He was found by his family on this very day,  January 3, six years ago.

His son, 25-year-old Grant Wilson, who was just two when his dad was jailed and had been suffering from depression, also committed suicide in December, 2016, with the family blaming the double tragedy on the miscarriage of justice.

READ MORE: Convicted killer who fought to clear name found dead

Relatives took the case to the Scottish Criminal Cases Review Commission in an attempt to get the conviction overturned with support from the Glasgow-based Miscarriages of Justice Organisation which said Mr McIntosh's death was a scandal.

John McIntosh at the age of 17, then known as McLay. The above picture was taken in 1992 at Glasgow High Court.

But the SCCRC decided not to refer the case back to the High Court, saying it did not believe a miscarriage of justice had taken place.

Dorothy Mackay, the mother of Mr McIntosh decided to seek a posthumous pardon after being told by justice officials of the potential route in response to a plea to the First Minister.

The justice division said that if she wanted to apply for a pardon she should enclose the SCCRC's statement of reasons for refusing the further appeal and set out why she considered why, despite that decision, the conviction "was clearly unjust".

Scottish ministers have never recommended a pardon since the SCCRC was established in 1999.

Now the family has been told that the pardon has been rejected and with Mrs Mackay now ill they have given up on ever getting Mr McIntosh's name cleared.

They were told by the Scottish Government's justice directorate: "Although the First Minister is generally responsible in Scotland for recommending to Her Majesty the Queen the exercise of the Royal Prerogative of Mercy (RPM) to grant a Free Pardon, the constitutional position is that the courts and not the Scottish Government decide whether a person is guilty of a crime.

"A decision to recommend to the Queen the exercise of the RPM would normally only be undertaken in exceptional circumstances where, for whatever reason, it is impracticable to refer the case to the courts, and where new evidence has come to light which demonstrates conclusively that no offence was committed or that the individual concerned did not commit the offence."

And the justice directorate said that Scottish ministers had concluded that the grant of a Royal Pardon is "not justified in this case" as the matter had already been considered by both the appeal court and the SCCRC.

"I understand that you believe that your son was a victim of a miscarriage of justice. However, the First Minister's powers to intervene in such matters are, necessarily, unsed sparingly. It would not be appropriate for the First Minister to act, effectively, as a 'reviewer' of decisions made by the SCCRC or the appeal court in cases where they determine that a miscarriage of justice did not occur."

Mr McIntosh's sister Dorothy said: "We have nowhere else to go and as mum was the driving force behind it all and is now too unwell to continue, I think we need to stop. This miscarriage of justice has already taken my brother I cannot allow it to take my mum as well."

Evidence in the case revealed Mr McIntosh's co-accused Stephen Harkins had repeatedly boasted about being the real murderer before and after the trial. But it was deemed inadmissable by appeal judges in 1994 before that was overturned after the intervention of then Scottish Secretary Donald Dewar.

"Each failed appeal and a review commission failed to acknowledge the validity of a credible witness and then finally a refused posthumous pardon again cites the words of the SCCRC. They couldn't even make their own decision," added Mr McIntosh's sister.

"This failure in the Scottish justice system led to the the death of my brother, the inadvertent my brother's son and then the failing health of my mother who fought to clear her son's name.

"We now can do no more but live with the fact the the Scottish justice system failed them all, including Stephen McDermott and his family."

A picture of father and son has pride of place at Mrs McKay's home

At the original trial, the jury convicted Mr McIntosh of murder by a majority verdict, and, also by a majority, found the murder charge against Mr Harkins - then 22 - not proven.

By the time of an appeal and after an intervention by Scottish Secretary Donald Dewar in 1997 which allowed the confessions to be considered by the court, there were seven affidavits, including one from prison officer William Blake, saying that Mr Harkins had boasted about being the real murderer.

One statement from William Blake, a prison officer with 13 years service at Greenock Prison, said Mr Harkins told him Mr McIntosh was serving life for a murder he had not committed.

Court papers revealed: "At one point, Harkins and [Blake] were going through a gate while engaged in a work party collecting rubbish. Harkins had asked him if he had known [McIntosh] and Blake said no... Harkins had said that the appellant had been his co-accused and that he was doing life for a murder that he had not committed.

READ MORE: Killer in bid to clear name

"Blake had not been interested because it was raining and they were trying to get through the grill gate, but Harkins went on and said, 'I know who did it - I did it'."

It did not occur to him to tell senior officers immediately and he refused to give an affidavit at first as he feared harm would come to him, court papers show.

He eventually made a statement. But Mr Harkins died in January 1999.

Over a year later Lord Coulsfield dismissed the appeal, and questioned the admissions, saying Mr Harkins was regarded, by other prisoners and by prison officers, as "boastful, a nuisance and a person who was in the habit of indulging in bravado".

Mr McIntosh's family were stunned when Lord Coulsfield said he felt it was not sufficiently significant to show a miscarriage of justice had occurred.

In a statement to the family, the SCCRC said that Mr Harkins was "fireproof" with regards to the offence as he could not be re-prosecuted for the murder.

The SCCRC said the appeal court noted he was a "boastful character" and that as soon as it appeared there "might be adverse consequences to him ... he appeared to disassociate himself from his admissions".

The commission accepted the issue it was required to address was whether the post-trial admissions by Mr Harkins were capable of being regarded as credible and reliable by a reasonable jury, and whether it had a material bearing on, or a material part to play in, the consideration by the original trial jury.

The SCCRC noted that the court did observe that the evidence "could not simply be dismissed as incredible and unreliable", and there was "an argument that the court concluded that the evidence was, at the very least, capable of being regarded as credible and reliable by a reasonable jury".

But the SCCRC added: "In any event, as the critical issue at trial was whether it was McIntosh or Harkins who stabbed the deceased, the ultimate question was whether the additional evidence is likely to have had a material bearing on, or a material part to play in, a reasonable jury's determination as regards which accused stabbed the decease.

"The commission noted the evidence against the accused; it noted the comments the trial judge made concerning 'the addition of any further material evidence'. Within that context, and having regard to the particular nature of the additional evidence under discussion, the commission was not persuaded that the additional evidence was significant."

The SCCRC said it was not disputed that Mr Harkins at a first appeal declined to give a statement to the Crown and refused at both appeals to co-operate with those representing Mr McIntosh. The commission concluded: "Accordingly, the commission does not believe that there may have been a miscarriage of justice in this case."

Eight years ago, at the age of 37, and with a 21-year-old son, Mr McIntosh, then free from prison, told The Herald he had tried to kill himself three times as a result of "the torment of what happened" and pledged to leave "no stone unturned" in fighting the case, including taking a lie detector test if necessary to prove his innocence.

While in prison he wrote to the murder victim's parents to apologise for being involved "in such a horrific case" but claimed he did not kill their son. There was no reply.

He and his co-accused blamed each other for the murder, with both said to have been "full of jellies" - a reference to the drug Temazepam - at the time.

The judge, Lord Prosser, told the jury during the 1993 trial that there appeared to be substantial evidence against Mr Harkins, who had already used his knife on another man that night. Only one person had stabbed McDermott. But there was also blood on a distinctive jacket said to have been worn by McIntosh.

Subsequent sworn statements that Mr Harkins had admitted sole responsibility for the murder before and after the trial were deemed hearsay.

Four judges headed by Lord Ross, the Lord Justice Clerk, decided in an original appeal in 1994 that it would be against public policy to relax the rule against hearsay, even if that meant ruling out evidence of genuine confessions. They pointed to the danger that accomplices of the accused would try to get him off by giving concocted evidence of false or non-existent confessions by third parties.

However, Lord McCluskey said the hearsay rule should be relaxed to allow someone in McIntosh's position to lead new evidence at a retrial.

He said: "In relation to the public interest aspect, I note that [McIntosh] has been convicted of the most serious charge known to our criminal law. It appears from the report of the trial judge that he considered that, on the evidence, Harkins was more likely to be convicted of the murder ... Against that background I think it is possible to see the importance of a jury having before it evidence as to Harkins's alleged admissions."

In December 1997, then Scottish Secretary Donald Dewar referred the case to the Court of Appeal in a landmark ruling that resulted in the statements being considered. New laws allowed evidence that came to light after a conviction to be admitted as grounds for appeal.

That evidence included the statement from Mr Blake.

Lord Coulsfield, while dismissing the appeal, questioned the admissions, saying Mr Harkins was regarded by other prisoners and by prison officers as "boastful".

Mr McIntosh said after the failed appeal: "It hurts me that the Court of Appeal had the chance to put things right but chose to brush me off by simply saying Harkins was just boasting.

"It was just the easy way out for the court."

A year after Lord Coulsfield's 2000 appeal ruling, Mr McIntosh was released on "interim liberation".