On 14 March 2008 the Cabinet Secretary for Justice, Mr Kenny MacAskill, announced in the Scottish Parliament that the Scottish Government was establishing an independent public inquiry under the Inquiries Act 2005 to inquire into the case of Shirley McKie which he said has "cast a cloud over the individuals involved and has been a source of serious concern for the criminal justice system for the past decade."
I was appointed to be Chairman of the Inquiry with the following terms of reference:
"To inquire into the steps that were taken to identify and verify the fingerprints associated with, and leading up to, the case of HM Advocate v McKie in 1999, and to determine, in relation to the fingerprint designated Y7, the consequences of the steps taken, or not taken, and to report findings of fact and make recommendations as to what measures might now be introduced, beyond those that have already been introduced since 1999, to ensure that any shortcomings are avoided in the future."
As the terms of reference state, the scope of the Inquiry extended beyond the identification of Y7 to other fingerprints and required an examination of the subject in general with a view to making recommendations for the future.
I was fortunate in that Mr Gerry J. B. Moynihan Q.C. and Ms Ailsa Carmichael (now Ms Ailsa Carmichael Q.C.) accepted appointment by me as Counsel to the Inquiry and Mrs Ann Nelson as Solicitor and Secretary to the Inquiry. Dr Carole Ross was appointed as Assistant Secretary and during the course of the Inquiry Mr Roddy Flinn and Mrs Debbie Blair each acted as Deputy Solicitor to the Inquiry succeeded by Mr John Grady, advocate.
I wish to record my admiration and appreciation for all the work that Counsel to the Inquiry, Mrs Nelson, the Deputy Solicitors, Mr Grady and the lawyers who assisted them, has each done. Dr Ross, as Assistant Secretary, and the members of the small administrative staff team have worked consistently, and at times under considerable pressure, with zeal and intelligence and for this they each deserve my warmest thanks.
The community of fingerprint experts is deeply divided over the case of Shirley McKie. Many acknowledged experts in the field have expressed opinions over the years. Those who have not done so are perceived by others to be so closely associated with colleagues or organisations that have expressed an opinion that they are not universally regarded as being independent. As a result, at an early stage in the Inquiry it became clear that it would not be possible to appoint an assessor, with suitable expertise in the study of fingerprints, who would be generally accepted as being independent. Moreover it seemed unlikely that there would be any one fingerprint examiner who could be regarded as the final arbiter. In practice it is for a tribunal of fact to decide whether the identity of an individual has or has not been established by means of a fingerprint. The fingerprint expert has to be able to demonstrate where similarities and differences exist. A judge or jury, without training or expertise in fingerprint analysis, then decides on the evidence if the expert is correct. Accordingly, I decided that it was not only necessary but also appropriate that I should conduct the Inquiry without an assessor.
Where I have made findings I have done so to the civil standard of proof, that is on the balance of probabilities and not to the criminal standard of proof which is beyond reasonable doubt.
The work of the Inquiry had depended to a considerable extent on the co-operation of core participants and other witnesses and their recognised legal advisers. Almost without exception they have been of real assistance to the work of the Inquiry. I am especially grateful to those fingerprint experts who took part in the comparative exercise and for the time and trouble that they took over it, and also to those who were invited to comment on recommendations when they were in draft form for their contributions.
One legal representative, Mr David Russell, was critical in a number of respects of the way in which the Inquiry was conducted. Correspondence received from Mr Russell together with responses from the Inquiry has been published on the Inquiry website so that the public may be aware of the criticism.
I recognise that a number of interested parties expected Ms McKie to be required to appear before the Inquiry to give oral evidence in addition to her written statement. As I explained, in the ruling that I gave at the time, I had to balance the advice that I received from a suitably qualified independent medical practitioner against the information that Ms McKie could provide to the Inquiry - having already provided a written statement and given sworn evidence in two criminal trials to the effect that she had not entered Miss Ross's house in Irvine Road beyond the porch. I decided that in these circumstances it was not reasonable to require her to attend to give oral evidence.
One of the purposes of a public inquiry is to gather as much relevant information as possible and to make it available to the public. In the course of the Inquiry around 2500 documents were considered and 100 statements taken from witnesses in addition to those already available from earlier investigations. A review of relevant literature on the subject of fingerprint identification was commissioned. Most of the documents and statements together with a transcript of the oral evidence have been posted on the Inquiry website.
For over 100 years fingerprints have provided the criminal justice system in Scotland and elsewhere with a valuable source of evidence. Like most other forms of forensic evidence, the comparison of fingerprints is a difficult and complex subject and I hope that the Report that follows will allow the interested reader to understand and appreciate the challenges facing the fingerprint examiner. The recommendations made in this Report are designed to assist fingerprint examiners to meet these challenges and to ensure that the identification evidence they provide continues to be evidence in which the general public and the criminal justice system in Scotland can have confidence.