27.1. This chapter considers the opinion evidence in relation to certain marks that SCRO identified as having been made by Mr Asbury namely XF, found on the gift tag in Miss Ross's living room, a number of marks found on the tin in his home (QI2 Asbury, QE and QL) and QD2 found on a bank note in the tin.
27.2. Distinct issues arise in relation to these marks and they require separate consideration.
27.3. Mr Rokkjaer and Mr Rasmussen, Danish police fingerprint examiners who were engaged by the Crown in 2000,1 and all of the witnesses involved in Phase 1 of the comparative exercise (including Mr Wertheim) confirmed that XF had been correctly identified.2 Mr Swann illustrated 16 points in sequence and agreement in chart R in his presentation3 to the Inquiry.
27.4. Mr Wertheim's reports dated 30 March 20004 and 6 October 20035 both contained statements that there were "unresolved questions" about XF and proceeded on the premise that he had not seen the gift tag. He posed questions regarding the authenticity of the mark XF in his Phase 1 response and witness statement to the Inquiry, both documents proceeding on the basis that he had not seen the gift tag.
27.5. In summary, Mr Wertheim's main issues, which the Inquiry summarised in a letter, were:
27.6. The Inquiry team investigated these questions with the assistance of Dr Bleay. For the reasons that he explained and demonstrated in his presentation at the Inquiry hearing,8 Dr Bleay concluded that mark XF was a naturally deposited mark from a real finger:
27.7. Mr Wertheim accepted Dr Bleay's conclusions.9 Initially he explained that his questions stemmed from the fact that he had not seen the original gift tag, only a photograph of it.10 That was inconsistent with his contemporaneous notes of a visit to the procurator fiscal's office dated 25 April 2000, recording that he had examined XF and concluded that the print was "legit" (i.e. legitimate).11 On being shown those notes Mr Wertheim admitted that he must have seen it at that time and apologised to the Inquiry that he had since forgotten that fact.12
27.8. It would have been outwith the terms of reference of the Inquiry to investigate how Mr Asbury's print came to be on the gift tag and the Inquiry has not done so.
27.9. The correct identification of XF by SCRO has been confirmed and the questions concerning the authenticity of that mark have been answered comprehensively. There is no reason to entertain any doubt about XF.
Q marks - introduction
27.10. The marks QD2, QE2, QI2 Asbury and QL2 featured in the case HMA v Asbury but not in the trial of Ms McKie. Mr Graham, who was instructed for the defence in HMA v Asbury, agreed with SCRO's identifications. Subsequently, the identification of each of these marks was put in issue by Mr Rokkjaer and Mr Rasmussen in their report to the Crown in August 2000.13 The Q marks were not included in the comparative exercise but the Inquiry did explore the specific issues concerning these marks that were raised in their report.
27.11. In the case of QD2 they reported that on the photograph marked QD2 (in Production 98) they had seen at least four clear details that could not be found on any of Mr Asbury's prints and so they concluded that QD2 did not originate from him.
27.12. In the case of each of the other three marks they reported that they could not determine whether the mark originated from Mr Asbury. They did not elaborate on their reasoning in relation to QL2 but they did give reasons for their conclusions on QE2 and QI2 (Asbury) that will be discussed below.
27.13. From the report by the Justice 1 Committee it was understood that Mr Rokkjaer and Mr Rasmussen had since changed their opinion at least in relation to QD2. Their initial contradiction of the identification of QD2 and their subsequent confirmation of the identification were, and remain, controversial. The Inquiry had correspondence with the Danish Fingerprint Department, in particular regarding QD2. Mr Rasmussen was understood to be unavailable and Mr Rokkjaer declined to attend the Inquiry.
27.14. There is a potentially significant complication in that the image of the mark QD2 that Mr Rokkjaer and Mr Rasmussen examined was not the same image that the SCRO examiners studied when they first identified it as Mr Asbury's right little finger. Mr Rokkjaer and Mr Rasmussen carried out their comparison in the procurator fiscal's office in Kilmarnock and were given the book of photographs which had been Production 9814 in HMA v Asbury. The joint report signed by the SCRO examiners15 implies that the images "now shown on pages 1 and 2 of Book A" (i.e. Production 98)16 were the images used in making the identification but for QD2 this was not the case.
27.15. The Inquiry did not recover the original image of QD2 used by the SCRO examiners when the mark was first identified ('the SCRO image'). Photocopies of the front (bearing the initials of the examiners)17 and back18 (with writing by Mr MacPherson)19 of that image were appended to a report by Mr M. J. Pass, an independent fingerprint examiner instructed by the Scottish Executive in connection with the civil case.20 It is shown in figure 20.21 The image of QD2 included in the court production ('the Production 98 image') covered a larger part of the banknote22 - see figure 21. The SCRO image shows only the lower right quarter of the area in the Production 98 image and concentrates more clearly on the mark QD2 (though the label for the mark is not reproduced). The SCRO image was not lodged as a production in the trial and was not seen by external experts until 2006 when, for the purposes of the civil action brought by Ms McKie, additional images, including a scanned copy of the front of the SCRO image and enlargements of it, were made available. The Inquiry recovered examples of the scanned copies and enlargements that were made available in 2006.23 The 2006 scanned copy of the SCRO image will be referred to as 'the SCRO scanned image.'
27.16. In 2000, having examined the Production 98 image, Mr Rokkjaer and Mr Rasmussen reached this conclusion:24
"Photograph of a fingerprint on a £10 banknote. The impression was compared with the item which was taken from sealed bag, marked label no. 75. No impression was seen on the £10 note.
The impression was probably developed with the substance ninhydrin, which evaporates with time and does not leave any traces.
On the photograph marked QD2 at least 4 clear details were seen. These details cannot be found on David Asbury's right little finger, nor on his other fingers as indicated in the SCRO's report.
Conclusion The fingerprint marked QD2 does not originate from David Asbury." (emphasis original)
27.17. Mr Zeelenberg's submission to the Justice 1 Committee25 and letters from Detective Commander Frank Jensen, of the Danish National Police Forensic and Serious Crime Department, and Mr Rokkjaer (to which reference will be made) are all consistent in explaining the sequence of events that prompted the change on the part of Mr Rokkjaer and Mr Rasmussen. The sequence starts with Mr Zeelenberg studying an enlargement of the SCRO scanned image in January 2006 during a meeting in connection with Ms McKie's civil case.26 He compared this with a copy of Mr Asbury's print and found there to be "a solid identification" and because his finding conflicted with that of the Danes he liaised with Mr Rokkjaer. Mr Zeelenberg was shown a photocopy of the image that the Danes had seen (i.e. the Production 98 image) and he thought that the area where the QD2 mark was did not show in the same way in the two images perhaps due to a difference with the centring of the light source when the photographs were taken. He thought that the Danes might have picked up some other ridge detail on the Production 98 image since they had mentioned a mark with at least four minutiae, whereas the mark on the enlargement of the SCRO scanned image (i.e. QD2) showed very clearly many more minutiae.27 He showed this enlargement to the Danish examiners and suggested that their original opinion must have been mistaken and this led to the change on their part.
27.18. That contact led to a letter to the Crown Office dated 1 February 2006 from Mr Jensen, who wrote: "There is no doubt that the print QD2 belongs to David Asbury. No differences between the prints were detected."28
27.19. Mr Rokkjaer provided his own explanation in a letter to the Inquiry dated 29 July 2009.29 As Mr Zeelenberg's narrative suggested, the explanation turns on the difference between the two images. Mr Rokkjaer said that "the 'correct' finger print labelled QD2 was not visible on the material we were shown in 2000" but was visible in the 2006 image that they were shown by Mr Zeelenberg. Mr Rokkjaer denied a change of opinion as such, saying "We have not changed our opinion with regard to our statements concerning the print QD2, as this is with regards to two different prints." The reference to two different prints was explained more fully earlier in the letter:
"We maintain that the fingerprint labelled QD2, which we were shown in the year 2000 in Kilmarnock is not identical to the print from David Asbury's right little finger.
At the same time we maintain that the fingerprint labelled QD2, sent to us by Arie Zeelenberg in January 2006 is identical to David Asbury's right little finger." (emphasis original)
In other words, in 2000 they had studied the Production 98 image and focussed on a fragment of another mark on the banknote and reached the conclusion that it did not match Mr Asbury; and in 2006, when given an enlargement of the SCRO scanned image, they examined QD2 and concluded that it did match.
27.20. The materials made available in 2006 were studied at approximately the same time by the SCRO officers and by Mr Pass.
27.21. The SCRO officers produced a supplementary report dated 30 January 2006,30 responding to the first report by the Danish examiners unaware that their view was about to change. The SCRO report was accompanied by a book of photographs.31 This did not contain a copy of the Production 98 image. In order to describe its contents it is necessary to know that both the Production 98 image and the SCRO image were "in reverse" i.e. they were images in which the ridges, which are normally black, appear as white. The book contained the SCRO scanned image32 and a colour reversal33 of it. That colour reversal (being a reversal of a reversal) can be referred to as the "corrected" image. The book also included a charted enlargement showing 16 points in sequence and agreement in mark and print compiled using the corrected image as the basis for the comparison.
27.22. Mr Pass's report for the Scottish Executive dated 30 January 200634 set out his findings. He confirmed the identification of QD2 using the SCRO scanned image. He also worked with the Production 98 image and his observations on this image are worthy of note:
"This additional photograph is considerably lighter and discloses three additional areas of fragmentary ridge detail.
I have examined these and have reached the following conclusions:
two of these areas contain insufficient ridge detail for comparison purposes.
the third area although the quality is relatively poor, consists of first and second level detail and I have no doubt that it was also made by the right little finger impression of 'DAVID ASBURY'."
27.23. For completeness, Mr Swann included a charting (chart I) of QD2 in his Inquiry presentation.35 That is based on a comparison of Mr Asbury's print with a copy of the corrected image of the mark.
27.24. The explanation that Mr Rokkjaer has provided, that QD2 was "not visible" on the Production 98 image, remains controversial for two reasons.
27.25. The first is that though the two images are different other experts were able to work with the Production 98 image.
27.26. Secondly, the SCRO examiners have been critical of the erroneous assumption by the Danish examiners that QD2 was "probably developed with the substance ninhydrin" when it had been developed using DFO and Quaser light. In their own report dated 30 January 200639 the SCRO examiners expressed concern that no mention had been made by Mr Rokkjaer and Mr Rasmussen of the image of the mark QD2 being a colour reversal, the outcome associated with development using DFO and Quaser light.40 That said, there is evidence from Mr MacNeil of the Identification Bureau that ninhydrin was used on the banknotes, after the mark was developed and photographed but before the banknote was seen by the Danish experts.
27.27. Given the facts that Mr Graham42 and Mr Pass43 were both able to work with the Production 98 image and that Mr Rokkjaer and Mr Rasmussen may have made a wrong assumption about the manner in which the mark had been developed, it is not possible to say conclusively that their first conclusion is explicable on the basis that the Production 98 image was inferior although image quality is a critical variable in fingerprint work. It was unfortunate that the image included in the court production was not the image that the SCRO officers had actually examined when the mark was first identified.
27.28. There is now a consensus that QD2 was properly identified by SCRO as the right little finger of Mr Asbury.
QE2, QL2, QI2 Asbury
27.29. In their 2000 report44 Mr Rokkjaer and Mr Rasmussen concluded that the quality of photographs they were shown of the marks attributed to Mr Asbury, QE2, QI2 and QL2 (in Production 98), was insufficient for identification. They reported:
27.30. In concluding their report they noted: "In order to carry out identification of a fingerprint in Denmark, there must be at least 10 distinct details that correspond in the impressions. In addition it is extremely important that no 'false details' are seen i.e. details that can be clearly seen on the one impression but do not exist on the other. In order to determine whether they are identical or not, it is also a requirement that the impressions are clear and that the overall impression with regard to size, shape and line structure corresponds between the impressions."
27.31. To be precise, the Danish examiners were not necessarily contradicting SCRO in relation to QE2, QI2 Asbury and QL2. Again, the photographic images that had been included in Production 98 were not the actual images that the SCRO examiners studied when they made the initial identification. The actual images that the SCRO examiners studied have writing on them. Clean images were used in Production 98. For QE2, QI2 and QL2 there is not the added complication that arose in relation to QD2. For these three marks the images appear to be photographic reproductions of the same image from the negatives.
27.32. The Inquiry investigated whether the marks QI2 Asbury, QE2 and QL2 were of sufficient quality for comparison. The fingerprint department of the Police Service of Northern Ireland (PSNI) was asked to undertake a limited review to assess whether the images of these marks contained sufficient ridge detail for comparison, "in effect, to give us a second opinion on not the identity of these marks as having been made by David Asbury but rather whether the images were of sufficient quality to be used in a comparison exercise."46
27.33. Teams led by Mr Logan, Head of the PSNI Fingerprint Bureau, did this work.
27.34. The materials made available to the PSNI included the actual photographic images that the SCRO examiners had studied at the time of the identification.
27.36. There were differences of view among the members of the PSNI team.49 In each case the views ranged from a value mark, suitable for comparison, to the mark contained insufficient ridge detail for identification but the pattern could possibly be used to eliminate individuals.50 The overall conclusion was that each of these marks had sufficient ridge characteristics for comparison.
27.37. The range of opinion among the members of the team can be reconciled with the overall conclusion in favour of the marks being suitable for comparison by reference to the PSNI's policy for establishing whether a mark has sufficient ridge characteristics for a comparison to be made. A mark must be examined by two examiners and both must agree on an insufficient ridge detail (IRD) status. Should either of them disagree the mark is retained for comparison purposes. PSNI policy is also that staff check all imprints, both those considered of value and those considered IRD, against suspects and elimination fingerprints.51
27.38. The Inquiry wished to know whether QE2 and QL2 were suitable for comparison. The overall conclusion reached by the PSNI is consistent with an affirmative answer to that question and I so find. It was not considered necessary to conduct any further inquiries in relation to those marks.
27.39. QI2 Asbury was to prove to be more complicated and the PSNI was given a succession of tasks.
27.40. The Inquiry had more than one annotated original image of QI2. The one primarily referred to in this Report is DB_0001h, the image containing manuscript references to the identifications of the marks of both Miss Ross and Mr Asbury. A second annotated original image, CO_1993h, contains a reference only to Mr Asbury.
27.41. The PSNI was initially asked only whether QI2 Asbury had sufficient ridge detail to be of comparable quality. At first the PSNI was supplied with the image CO_1993h.52 The overall conclusion, with some qualifications by some members of the team, was that it had insufficient ridge detail for comparison.53 To ensure that they had examined the correct part of the mark they were subsequently provided with an enlargement outlining QI2 Asbury and other images, including the image DB_0001h. The conclusion was unchanged.54
27.42. Mr Logan illustrated the limited characteristics (eight in total) that were possibly observable55 but explained that the conclusion that the mark contained insufficient ridge detail for comparison was due to the fact that it was affected by distortion, movement and superimposition and apparently contained two recurves of a possible loop or loops.56
27.43. At this stage, the PSNI had looked only at the mark.57 Mr Logan variously described the initial exercise the PSNI had undertaken for the Inquiry as "artificial"58 or "unorthodox".59 He explained that this was not because there were no prints - that was quite normal - but because the PSNI did not have a range of images of the mark.60
27.44. The Inquiry team asked the PSNI to undertake further work, in stages.61
27.45. Meantime,62 Mr MacPherson produced for the Inquiry a charted comparison63 of the mark QI2 Asbury and a plain impression of Mr Asbury's print, countersigned by Mr Geddes and Ms McBride. This comparison used Inquiry images and illustrated 17 points in coincident sequence.
27.46. In all the PSNI was supplied with the following materials:
(i) the photocopies64 of Mr Asbury's ten print forms that the Inquiry had;
(ii) the two original images of the mark QI2 studied by the SCRO officers;65
(iii) images prepared for the Inquiry by Dr Bleay:
(iv) the Identification Bureau negative of the images;
(v) Mr MacPherson's charting;70 and
(vi) an actual size replica of the tin.
27.47. In the first stage of the exercise the PSNI was asked to examine Mr Asbury's prints to complete their initial analysis of the mark; and to do that without considering the new images of the mark. Examination of the prints did not change their conclusion because no member of the team could count between the groups of characteristics to right and left of the original image of the mark.71 It was their unanimous opinion that they could not rule out the possibility that the mark was made by Mr Asbury, but they would not be willing to say conclusively that it was made by him.
27.48. In the second stage they were asked to examine the materials used by Mr MacPherson (in blank and not with his chartings marked).72 They reported that any differences in the quality of the images were not sufficient to alter the conclusion.73
27.49. In the third stage, the PSNI gave the negative to the PSNI fingerprint photographer who adjusted the exposure and contrast and produced a variety of photographic images. The team selected one of those images as being the most suitable for making a comparison. The fourth stage of the exercise involved a comparison using this image, still without the PSNI team members studying Mr MacPherson's charting.74 PSNI concluded not only that it was of comparable quality but also that ten points were in coincident sequence with the right middle finger of Mr Asbury and four of the five members of the team were able to count between the two sides of the mark. "As a result of this new comparison" PSNI were "conclusive" that the mark QI2 Asbury matched the right middle finger of Mr Asbury, which was the identification that SCRO had made.75
27.50. The PSNI identification was based on ten points in coincident sequence observed on a comparison of the selected PSNI image and the rolled impression76 of Mr Asbury's print. That result was reported by letter77 and illustrated in a charted enlargement.78
27.51. On one view there remained differences in detail as between PSNI and SCRO, the main difference being that PSNI found only ten points in coincident sequence, whereas in the new charting prepared for the Inquiry Mr MacPherson and his colleagues found 17. There were also underlying differences in relation to the source materials used: separate images of the mark were used and PSNI made a comparison with a rolled impression, whereas Mr MacPherson had used a plain. It was decided not to pursue these points of difference because the Inquiry's limited objective had been to investigate the doubt raised by the Danish examiners and the fact that the PSNI agreed the identification was sufficient to resolve that doubt.
27.52. The SCRO finding that mark QI2 Asbury was made by the right middle finger of Mr Asbury has been independently verified by the PSNI. It is accepted that the SCRO officers correctly identified that mark.
1. See chapter 13
2. CO_0030, FI_0110 page 15 Mr Grigg Phase 1 Comparative Exercise, FI_0109 page 2 Mr MacLeod Phase 1 Comparative Exercise, FI_0130 page 15 Mr Wertheim Phase 1 Comparative Exercise, FI_0108 page 2 Mr Zeelenberg Phase 1 Comparative Exercise and FI_0111 SCRO Phase 1 Comparative Exercise
3. TS_0004 slide 19
4. FI_0118 Inquiry Witness Statement of Mr Wertheim pdf page 54 (at para 18 on pdf page 59)
5. FI_0118 Inquiry Witness Statement of Mr Wertheim pdf page 61 (at para 23 on pdf page 67)
6. FI_0118 pdf pages 11-12 Inquiry Witness Statement of Mr Wertheim and FI_0130 page 15 Mr Wertheim Phase 1 Comparative Exercise
8. Dr Bleay 16 November page 157ff (from page 159) and EA_0171 slides 48-60
9. Mr Wertheim 22 September pages 106-107
10. FI_0118 pdf pages 11-12 Inquiry Witness Statement of Mr Wertheim and Mr Wertheim 22 September pages 106-107
11. CO_1734 pdf page 4
12. Mr Wertheim 22 September pages 110-114 and 23 November page 4ff
14. SG_0010h and Sheriff Crowe 2 July pages 144-146
16. SG_0010h and FI_0055 para 105 Inquiry Witness Statement of Mr MacPherson
19. FI_0055 paras 102-103 Inquiry Witness Statement of Mr MacPherson
21. Taken from SG_0359h
23. e.g. SG_0702 and SG_0693
25. AZ_0006 pdf pages 6-7
26. AZ_0042 Annex G
27. AZ_0006 pdf pages 6-7
31. SG_0359h and FI_0055 para 106 Inquiry Witness Statement of Mr MacPherson
32. SG_0359h pdf page 2 (also available to the Inquiry as SG_0702)
33. SG_0359h pdf page 3 (also available to the Inquiry as SG_0703)
35. TS_0004 slide 10
37. Mr Graham 9 July pages 84-90
38. Mr Graham 9 July page 90
40. See chapter 19 para 34
41. FI_0018 paras 41-42 and 51 Inquiry Witness Statement of Mr MacNeil
45. i.e. QI2 Asbury
46. Counsel to the Inquiry 16 November page 4
49. NI_0002 and NI_0003
50. NI_0002 and NI_0003
51. NI_0002 and Mr Logan 16 November page 6
56. Mr Logan 16 November pages 56-61
57. Mr Logan 16 November page 8
58. Mr Logan 16 November page 1
59. Mr Logan 16 November page 28
60. Mr Logan 16 November page 28ff
61. NI_0005 and Mr Logan 16 November page 8ff
62. Mr Logan 16 November page 9
64. See chapter 1
65. DB_0001h and CO_1993h
69. EA_0184; see chapter 19
71. NI_0005, NI_0008 and Mr Logan 16 November pages 61-72
72. Mr Logan 16 November pages 11-12
73. NI_0005 and Mr Logan 16 November page 72
74. Mr Logan 16 November page 13
75. NI_0005 and Mr Logan 16 November pages 80, 87-88
76. Mr Logan 16 November pages 13-14