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 1                                         Tuesday, 2nd June 2009
 2   (10.30 am)
 3   THE CHAIRMAN:  Shortly after the Inquiry was announced work
 4       began on the recovery of documents and the
 5       identification of potential witnesses and the recording
 6       of various statements.  As the events leading up to this
 7       Inquiry go back to January 1997, as you will appreciate,
 8       much material has accumulated in the interim and so it
 9       has taken a considerable amount of time to gather and to
10       analyse it.
11           The stage is now reached where the public hearings
12       can begin and this gives me an opportunity just to
13       outline what the sitting plans are so that if members of
14       the public who are interested want to know when events
15       will be continuing here at Maryhill, they will be able
16       to know when that will be.  But I would urge them to
17       keep in touch with the website if possible because if
18       there are any variations they will be able to see that
19       then.
20           Now, first of all, the hearings of the evidence are
21       going to be here at the Maryhill Central Community
22       Centre, Central Hall, and the present plan -- and I'm
23       going to keep this under review and I'm open to
24       suggestions from Core Participants and others where
25       perhaps the ideas I have about when we should sit prove
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 1       in some way inconvenient, I'm quite open to looking at
 2       it again.  But the present plan is to sit from Tuesday
 3       to Friday, not on Mondays, and that we do that until
 4       Friday 10th July.  Of course the first exception to that
 5       will be this week when I do not intend to go beyond
 6       Thursday which I hope will give sufficient time for all
 7       the business that we need to conduct this week.
 8           Normally we will sit at 10.15 and continue to 1.00
 9       and then from 1.50 in the afternoon to 4.00 pm.  I
10       intend to have two short breaks during the day, one in
11       the morning as near as possible to 11.30 for 15 minutes
12       and then in the afternoon from 2.50 to 3.00 pm.  The
13       other change that I think we might make is that on
14       Fridays we may stop at 3.00 rather than continue to 4.00
15       so people who have to travel can get to their various
16       destinations.
17           Then if we have a sufficient number of witnesses
18       available I would like to resume again on 18th August
19       and sit until 28th August and then there will be a break
20       to 22nd September.  Then, subject to one further break
21       to allow for the preparation of material about
22       recommendations, my idea is that we should continue
23       until all the oral evidence is completed.
24           I know everyone will want to know as soon as
25       possible whether the August sittings are going to take
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 1       place and we will make arrangements for that as soon as
 2       possible as soon as we know whether the witnesses are
 3       available.
 4           Now, today the hearings will commence with a
 5       presentation by Mr Moynihan QC who is on my left, senior
 6       Counsel to the Inquiry, and he will make a presentation
 7       but I want to make it clear that this is his
 8       presentation, counsel's presentation, and it does not
 9       represent any views that I have formed on any issue of
10       controversy because I can only form my views when I have
11       heard the evidence and when I have considered everyone's
12       submissions about it.
13           Then at the end of Mr Moynihan's presentation, which
14       the estimate will be some time tomorrow possibly, then
15       the legal representatives of Core Participants will have
16       an opportunity, if they wish to take it, to make an
17       opening statement and that is entirely a matter for
18       them.  But it would help with the planning if they could
19       give Counsel to the Inquiry some indication of their
20       intentions about that.
21           The last thing I want to say is that it is a public
22       Inquiry and members of the public who wish to attend are
23       of course not only free to do so but encouraged to do so
24       and if anyone wants to follow the evidence but cannot be
25       here of course they will be able to do it by, each day,
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 1       at the end of the day they will find a transcript of the
 2       day's proceedings on the Inquiry website.  That is not
 3       difficult to find because it's Fingerprint Inquiry
 4       Scotland.
 5           That's all I want to say at this stage and I now
 6       propose to invite Mr Moynihan to begin his presentation
 7       in a few minutes.  I am going to rise for a couple of
 8       minutes so that those who want to leave can do so
 9       particularly I am sure the media want to leave and we
10       will resume as soon as that's happened.
11   (10.35 am)
12                         (A short break)
13   (10.41 am)
14                 Opening statement by MR MOYNIHAN
15   MR MOYNIHAN:  I begin with an introduction and the essential
16       facts.  Marion Ross was found murdered in her own home
17       in Kilmarnock on 8th January 1997.
18           Scenes of Crime examinations carried out in the
19       course of the investigation yielded 428 fingerprints.
20           Of those, this Inquiry is primarily interested in
21       four: Y7, a fingerprint identified as the left thumb of
22       Ms McKie found on a doorframe surrounding the door to
23       the bathroom where Miss Ross' body lay; QI2 a cluster of
24       prints on a biscuit tin containing money found in
25       Mr Asbury's house, including a print identified as the
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 1       right forefinger of Miss Ross and another print
 2       identified as the right middle finger of Mr Asbury's;
 3       QD2, identified as the right little finger of Mr Asbury
 4       and found on a bank note in that biscuit tin; and XF
 5       identified as the right forefinger of Mr Asbury and
 6       found on a Christmas gift tag in the living room of
 7       Miss Ross' house.
 8           A fifth print, Z7, a partial palm print found at the
 9       same time as Y7 and in close proximity to it may be of
10       potential relevance to Y7.
11           Y7 was discovered by the Scenes of Crime officers on
12       14th January 1997 and on 10th and 11th February 1997 it
13       was identified by fingerprint officers at the Scottish
14       Criminal Record Office as the left thumb print of
15       Ms McKie.  Ms McKie then known as DC Cardwell had
16       briefly been part of the police team investigating the
17       murder.  From the outset she denied having gone beyond
18       the porch at the entrance to the deceased's house and
19       therefore disputed that she had placed her fingerprint
20       on the bathroom doorframe.
21           In 1997 Mr David Asbury was prosecuted for the
22       murder of Ms Ross and convicted, with the fingerprint
23       evidence being a central part of the prosecution case.
24       During that trial, no-one challenged the identification
25       of the fingerprints.  However, during the trial Ms McKie
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 1       gave evidence denying that she had been anywhere near
 2       the bathroom.
 3           After the murder trial the prosecution authorities
 4       decided to prosecute Ms McKie for perjury.  In short the
 5       prosecution case was that because Y7 had been identified
 6       as the fingerprint of Ms McKie she must have lied when
 7       she said that she had not been beyond the porch.  At her
 8       trial American fingerprint experts, Mr Wertheim and
 9       Mr Grieve, disputed the identification of Y7 and gave
10       evidence that it could not be her print because of
11       certain points of difference between her print and the
12       mark.  She was acquitted.
13           Subsequently, inquiries were carried out by the
14       police and other public authorities employing a number
15       of experts from the United Kingdom, Holland, Norway and
16       Denmark.  These investigations cast doubt on the
17       identification of not only Y7 but also QI2 and QD2 and
18       two other prints which I, as senior counsel to this
19       Inquiry, have not yet been persuaded that it is
20       necessary to consider.
21           The identification of XF has not to date been
22       challenged.
23           After the full extent of the disputes regarding the
24       fingerprint evidence became known, Mr Asbury was
25       acquitted of the murder by the Appeal Court and a claim
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 1       by Ms McKie for damages was compromised.
 2           Those are the essential facts, as will be well known
 3       to those who have followed the various past
 4       investigations into this matter, including some that
 5       have been published (for example, by Her Majesty's Chief
 6       Inspector of Constabulary and the Scottish Parliament)
 7       and some that to date have been private: a Strathclyde
 8       police disciplinary Inquiry in relation to Ms McKie led
 9       by Chief Inspector Wilson and two reports into
10       allegations of criminal conduct by the fingerprint
11       officers principally involved in the identification of
12       Y7 by Detective Chief Constable Mackay and then
13       Mr Bill Gilchrist.
14           However, the greatest weakness of those past
15       investigations is that they have not resulted in any
16       judicial determination and, hence, debates persist.
17       Most fundamentally, the Scottish Criminal Record Office
18       fingerprint officers continue to maintain that they
19       correctly identified Y7 as the mark of Ms McKie and in
20       that they are supported by a number of independent,
21       external experts including Mr Swan and Mr Leadbetter,
22       while a number of equally eminent fingerprint officers
23       at home and abroad say that they are wrong.
24           This is the opportunity, through an independent
25       judicial Inquiry, to investigate fully and publicly the
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 1       controversy surrounding these fingerprints and to reach
 2       conclusions in relation to the fingerprint examinations
 3       that were carried out in order to learn lessons for the
 4       future and to ensure that the public can have confidence
 5       in the reliance placed on fingerprint evidence in
 6       criminal trials in Scotland.
 7           The Inquiry is being held under the Inquiries Act
 8       2005 and has begun with an impartial investigation as
 9       directed by the Chairman but conducted by the Inquiry
10       team.
11           The Inquiry team made request for access to
12       witnesses and to records that it considered may be
13       relevant to a proper investigation.  The team has
14       received substantial co-operation from those to whom
15       requests were submitted.  The team has accordingly
16       secured access to past reports (both public and private)
17       and to contemporaneous documents held by, among others,
18       the Scottish Government, the Crown Office, the Scottish
19       Criminal Records Office and Scottish Police Services
20       Authority, Strathclyde Police and Mr McKie.  This has
21       included extensive material that would not otherwise be
22       made public.  In particular, the team has had the
23       opportunity to study and, where of assistance, to use
24       the material gathered by Detective Chief Constable
25       Mackay as part of his police investigation and his
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 1       eventual report and ministerial correspondence related
 2       to it.
 3           The Inquiry team has also been interviewing the
 4       principal participants in the events and has been taking
 5       detailed statements from them.  Conscious that the
 6       events took place more than 12 years ago, and that
 7       memories are bound to be faded to some extent, the
 8       Inquiry team has been particularly careful to tie in
 9       witnesses' present recollections with the
10       contemporaneous documents and the witness statements
11       contain meticulous cross-references to those documents
12       so that any reader of the statement will be able to
13       check the consistency of the witnesses' evidence.
14           The process of interviewing witnesses continues but
15       the investigation has been marshaled to enable this
16       Inquiry to open and to deal with matters that have been
17       fully investigated and the Inquiry hearings will
18       progress as the investigation proceeds.
19           Dealing with this hearing, the legislation lays down
20       two guiding principles in relation to the conduct of the
21       Inquiry.  The first is that the Chairman must act with
22       fairness and also that he must have regard to the need
23       to avoid any unnecessary cost, whether to public funds
24       or to witnesses or to others.
25           In order to avoid unnecessary cost, it is not
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 1       intended to call as witnesses to the public hearing
 2       every individual who has provided a statement.  The
 3       selection has been informed in part by the possibility
 4       that the particular individual's evidence on a point of
 5       significance to the Inquiry may in some respect be open
 6       to question (for example, because it is contradicted by
 7       another witness or inconsistent with a significant
 8       document) and by consideration of the interest of the
 9       public in seeing an open examination of the essential
10       issues.
11           Statements provided by witnesses who are not
12       required to give evidence at the public hearings will
13       still be published on the Inquiry website and may still
14       be relied upon by the Chairman in reaching his
15       conclusion.  In the interests of accuracy, each witness
16       has been given advance notice of the points to be
17       covered in the interview and has been afforded an
18       opportunity to revise the draft statement that has been
19       prepared by the Inquiry team.  When the statement has
20       been finalised to the satisfaction of the witness, each
21       witness has been required to sign the revised statement
22       testifying to the truth of its contents.
23           Witnesses called to give evidence at the public
24       hearing will do so under oath.  These witnesses too will
25       have provided signed statements in advance in exactly
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 1       the same way as already described and those statements
 2       will be put on the website.  The contents of those
 3       statements will be taken as read when the witness is
 4       called to the public hearing.  It is not the intention
 5       of Counsel to the Inquiry to rehearse the whole of the
 6       witnesses' evidence.  Instead, the examination in public
 7       will be restricted to certain specific points but the
 8       whole contents of the statement will be available to the
 9       Chairman, whether or not the witness is asked about any
10       particular point at the hearing.
11           An analysis of the material gathered by the Inquiry
12       team (that is witness statements and documentary) has
13       been prepared by Counsel to the Inquiry and shared with
14       such of the Core Participants who were willing to give a
15       confidentiality undertaking.  The objective has been to
16       ensure, so far as possible, that the Inquiry team is
17       fully investigating the points relevant to the Terms of
18       Reference and is making an appropriate selection of
19       witnesses to call to give evidence at the public
20       hearing.
21           This process of consultation will be ongoing as the
22       investigation progresses but ultimately decisions on the
23       issues to be pursued and witnesses to be heard are
24       matters for the Chairman.
25           The Inquiry team intends to lead evidence relating
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 1       to the disputed fingerprint identifications of Y7 and
 2       QI2 and, if there is any basis for dispute, QD2 and XF.
 3       Investigations have yet to take place in that regard.
 4           Among the complications is that in relation to mark
 5       Y7 there are multiple images of the mark and also
 6       multiple sets of fingerprints of Ms McKie.
 7           Y7 has been photographed on at least seven
 8       occasions: three times by Scenes of Crime officers as
 9       part of the murder investigation on 14th January, 12th
10       and 18th February 1997; by a Home Office expert Mr Terry
11       Kent in March 1997; by Mr Wertheim in 1999; by the
12       National Training Centre at Durham, and by Dr Bleay of
13       the Home Office in 2009 for the purposes of this
14       Inquiry.
15           Ms McKie's prints have been taken on at least five
16       occasions, at least three times by the police on 6th
17       February 1997, 18th February and 6th March 1998; by
18       Mr Wertheim in March 1999; and, by a fingerprint
19       prectitioner, Mr Cook, in October 1999 presumably for
20       the purposes of a BBC documentary.
21           A substantial number of fingerprint experts have
22       entered the debate in relation to the identification of
23       Y7 but they have used a variety of combinations of these
24       source materials, with some of them using copies and not
25       principals.  The end result is that the views expressed
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 1       by them are not directly comparable because of the
 2       potential distortion due to the variation in source
 3       material.  The Inquiry team has been exploring the
 4       possibility of securing contributions from the experts
 5       by reference to a common set of source materials.
 6           Progress is being made but until that exercise has
 7       been carried out, Counsel to the Inquiry cannot make any
 8       pronouncement on the evidence bearing on this key issue.
 9       This opening statement is accordingly confined to
10       material so far obtained in relation to the factual
11       background.
12           Also missing from this presentation but to be
13       covered by the Inquiry is a review of the progress made
14       by the Scottish Criminal Record Office and now the
15       Scottish Police Services Authority in implementing the
16       recommendations of past reports into the handling of
17       these fingerprints.
18           It would be possible to begin this Inquiry with a
19       short statement as to the issues raised by the materials
20       that the Inquiry has received and to proceed forthwith
21       to hear evidence.  However, in common with the precedent
22       set in at least one other prominent public Inquiry I
23       propose to take a radically different course and to
24       review and in part analyse the evidence that the Inquiry
25       has so far received.
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 1           I adopt this course primarily because I am aware
 2       that the Inquiry has secured a substantial volume of
 3       material and it is not the intention to rehearse all the
 4       evidence at the public hearings, let alone to read out
 5       the contents of all the relevant documents.  The
 6       evidence that will be heard at the public hearing will
 7       focus on discrete parts of the controversy and without
 8       an overall analysis it would be difficult for those not
 9       directly involved in the hearings to follow the evidence
10       and to understand where it falls into the overall
11       picture.  Accordingly, this statement seeks to paint the
12       general picture and places the contribution of
13       individual witnesses or documents in context.
14           This opening statement is modelled on the analysis
15       document sharing with Core Participants as I have
16       described.  The full text, which will be place on the
17       website in due course, is complemented by footnotes
18       specifying the precise source for any particular
19       proposition and textual references to the electronic
20       codes for the documents in the Inquiry hearing database
21       to which the public will have access via the web.
22           It's not the intention to labour this presentation
23       by reading the footnotes but the references will be in
24       the text placed on the Inquiry website for anyone
25       wishing to pursue any point in detail.
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 1           Where the text is summarising the evidence of a
 2       particular witness, the name of the witness is
 3       highlighted by underlining and there will be a table on
 4       pages 9 to 10 of the text placed on the website to give
 5       the Inquiry hearing database references for the witness
 6       statements.
 7           It has to be stressed that this opening statement
 8       reflects the analysis carried out by me and not by the
 9       Chairman.  What is more, even as far as I am concerned,
10       it is no more than an analysis of the evidence and it
11       does not seek to reach conclusions in relation to the
12       various points of controversy.  That is a matter for the
13       Chairman after hearing all the evidence and considering
14       all submissions received.
15           While care has been taken in preparing this summary
16       to give a fair account of what the witnesses are
17       understood to be saying, inevitably there is always the
18       risk that any summary can misrepresent the witness.
19       Notwithstanding the detailed nature of the opening
20       statement it is no substitute for witness statements and
21       documents and those who are participating in the hearing
22       and are concerned to follow the proceedings are invited
23       to follow the cross-references and to study the source
24       material for themselves.
25           So far as this opening statement is concerned, there
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 1       will be an opening chapter dealing with the law and
 2       practice in relation to fingerprint evidence in general
 3       and then a chronological narration of the sequence of
 4       events highlighting en route the specific issues that
 5       require to be resolved by the Chairman and the evidence
 6       available on the point.
 7           I now turn to chapter one dealing with fingerprint
 8       law and practice and I begin.  The skin on the tips of
 9       the fingers, palms of the hands and soles of the feet
10       contain patterned ridges to increase grip.  The pattern
11       is on the outer layer of the skin (the epidermis) and is
12       shaped by the contours of the underlying inner layer
13       (the dermis) and the distribution of pores all formed in
14       the womb.  Because the pattern in the epidermis reflects
15       the structure of the dermis it is constant throughout
16       life barring damage to the dermis itself.
17           These patterns are unique, not only comparing one
18       individual with another but also comparing one finger
19       with another.  The attributes of uniqueness and
20       constancy result in fingerprints and other friction skin
21       patterns being a means of identification of individuals,
22       particularly (but not exclusively) in criminal justice
23       systems worldwide.
24           On contact with a surface an impression can be left
25       of the pattern of the skin.  The quality of that
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 1       impression will vary depending on the nature of the
 2       surface and the nature of the contact.
 3           Scenes of Crime and objects relevant to the crime
 4       will be examined by specialists to reveal any
 5       impressions that may be present and this can be done by
 6       using various types of dust and chemicals suited to the
 7       kind of surface.  Any impression found is then preserved
 8       either by being lifted using tape or by being
 9       photographed.  The lift or photograph is then passed to
10       a fingerprint practitioner, a person who by training and
11       experience is skilled in the identification of marks.
12           The fingerprint practitioner will also be provided
13       with fingerprint forms containing the impressions of
14       known individuals who may be of interest to the police.
15       In modern practice computer databases of fingerprints
16       can be used to search for any individual whose prints
17       may be a close match to the crime scene mark but
18       computers do not make identifications.  Identification
19       is ultimately a matter for the fingerprint practitioners
20       who compare the crime scene mark with the fingerprint
21       forms of known individuals.
22           Identification is a process that consists of a
23       visual comparison examination by fingerprint
24       practitioners of the crime scene mark and known
25       fingerprint forms to determine whether there are
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 1       sufficient characteristics in common between the mark
 2       and a fingerprint from a known individual, and no
 3       unexplained points of difference, to warrant the
 4       conclusion that the two match to such an extent that the
 5       mark can be individualised and attributed exclusively to
 6       the known individual.
 7           That process is more or less difficult depending on
 8       the quality of the crime scene mark and the prints of
 9       the individual.  Not every comparison results in an
10       identification.  The all important question is, of
11       course, how to judge the sufficiency of the
12       characteristics common to the mark and the print.  How
13       is it determined that a particular combination of common
14       characteristics is sufficiently peculiar to be unique to
15       one individual?
16           I turn then to the history of the 16-point standard.
17       At the time of the Asbury and McKie prosecutions the
18       Scottish criminal justice system was working to the
19       16-point standard.  A crime scene mark could be
20       identified as that of a known individual only if there
21       was a minimum of 16 characteristics in common and no
22       unexplained differences.
23           An account of the genesis of that standard was given
24       in an article by Evett and Williams, "A Review of the
25       Sixteen Points Fingerprint Standard in England and
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 1       Wales".  Though written from the vantage point of
 2       England and Wales, it would appear from the overlap with
 3       the corresponding narrative in Her Majesty's
 4       Inspectorate of Constabulary Scotland report that the
 5       historical outline is the same in Scotland.
 6           The first fingerprint bureau in the UK was
 7       established at New Scotland Yard in 1901.  Initially, a
 8       12-point standard was used in Great Britain until 1924
 9       when the 16-point standard came to be recommended by New
10       Scotland Yard following review of an illustration in a
11       publication by Bertillon which had been sent to New
12       Scotland Yard by New Zealand police.  The illustration
13       showed prints from two different individuals masked in
14       such a way as to obscure differences but with 16 points
15       of similarity marked on the revealed areas of the
16       prints, New Scotland Yard doubted six of the points of
17       similarity but accepted that 10 were present.  Given
18       that the illustration therefore showed two different
19       individuals could share 10 common points, it was decided
20       that the 12-point standard was not high enough and it
21       was raised to 16.
22           There is evidence that, despite the adoption of this
23       standard, practice varied and some fingerprint experts
24       were prepared to give identifications on less than
25       16 points.  In 1953, an expert gave evidence at trial
page  20
 1       identifying two prints, one having 12 points of
 2       similarity and the other 15.  The defendant was
 3       convicted but the Home Secretary was concerned that if
 4       evidence was given of identification on less than
 5       16 points the defence might successfully challenge the
 6       evidence, thereby tending to discredit fingerprint
 7       evidence as a whole.  A meeting was held at which it was
 8       decided that a common standard would be observed,
 9       "... in order that there should be little risk of such
10       evidence being challenged."
11           Evett and Williams cite two exceptions to the
12       standard subsequently recognised by the National
13       Conference of Fingerprint Experts.  The first exception
14       dates from 1978.  The practice evolved of fingerprint
15       officers giving "non-provable" identifications based on
16       the finding of 8 to 15 points, the object being to give
17       the police a lead in the investigation while recognising
18       that, save in cases falling within the second exception,
19       the officer could not take that evidence to court.  As
20       to the origins of 8 points as the lower end of this
21       range Evett and Williams quote the 1978 National
22       Conference of Fingerprint Experts who said:
23           "There was general agreement amongst fingerprint
24       officers that if there were 8 points of resemblance
25       present, that was sufficient to establish identity
page  21
 1       beyond all reasonable doubt."
 2           The second exception dates from 1984 when it was
 3       agreed that evidence might be given of an identification
 4       on less than 16 points in a case of particular
 5       importance, though the evidence would have to come from
 6       an expert of long experience and high standing and it
 7       might be necessary for the expert to say that though he
 8       was personally satisfied as to the identification, it
 9       did not meet the national standard.
10           Evett and Williams had been commissioned by the Home
11       Office in 1988 and reported in 1989.  As part of their
12       study, they located a copy of the original Bertillon
13       publication.  By scrutinising better quality copies of
14       the prints than had been available to New Scotland Yard,
15       they found that the prints had been touched up.
16       Professor Margot of Lausanne University confirmed that
17       of the ten points originally accepted by New Scotland
18       Yard, 5 had in fact been altered by the addition of ink
19       lines.  This finding coincided with an article published
20       in 1914 by Locard who said "... certain of the points
21       are patently fabricated."
22           Consequently Evett and Williams concluded this:
23           "The original decision to adopt a standard of
24       16 points at New Scotland Yard was clearly based on
25       incomplete and misleading information."
page  22
 1           If I stop and move through the text that others may
 2       have and come back in a minute.
 3           This may be a suitable point to say something about
 4       terminology.  Not every impression or mark is
 5       identifiable.  Where there is too little detail of
 6       comparison the mark will be set aside as fragmentary and
 7       inconclusive.
 8           The 16 point standard was relevant only to marks
 9       that were otherwise of sufficient quality to admit of
10       comparison.
11           Where the mark and the fingerprint of a known
12       individual matched with at least 16 characteristics in
13       common and no unexplained differences, the legal test to
14       the 16 point standard were satisfied and practitioners
15       would refer to such a mark as an identification.
16           As noted, at latest from 1978, fingerprint
17       practitioners might be certain of the match with 8 to 15
18       characteristics in common and no unexplained differences
19       but evidence of such a match was not generally
20       admissible in court.  Fingerprints matched to that lower
21       standard were referred to as eliminations, particularly
22       when speaking of prints of individuals who are not
23       suspects in the crime: an example being prints of
24       Miss Ross found in her own home.
25           It is crucial to observe, under reference to Evett &
page  23
 1       Williams at page 26, that the distinction between an
 2       identification and an elimination is a consequence of
 3       legal practice and not necessarily a substantive
 4       difference for a fingerprint practitioner.  A
 5       fingerprint practitioner may be equally certain in
 6       relation to an elimination as he or she would be in
 7       relation to an identification.  The difference between
 8       the two is that, save in exceptional circumstances,
 9       legal practice in 1997 to 1999 had reservations about
10       the match to the lower standard.
11           However, it has to be said that there were
12       variations in terminology and, more particularly,
13       practice.
14           (This is me back on to the text 1.2.3.)  The HMICS
15       report records a lack of consistency worldwide on the
16       description of characteristics that could affect the
17       application of this standard.  Thus, some practitioners
18       might characterise the same feature as either a short
19       ridge (counting as 2 points) or an island (one point).
20       If.
21           I turn to Scottish case law.  Hamilton v HMA
22       reported in 1934 is authority for the proposition that
23       in Scotland an accused may be convicted on fingerprint
24       evidence alone.  That remains good law and was
25       relevantly recently applied in a murder, Lanagan, case
page  24
 1       in 1989.  However, the fingerprint must be found in
 2       incriminating circumstances.  For example, just because
 3       an accused's print is on a false number plate used in a
 4       getaway car does not justify a conviction in the absence
 5       of any other incriminating evidence because a print
 6       could have been put on the plate at any time and not
 7       just during preparation for the crime, Reilly 1986.
 8           Hamilton was a case of theft committed by breaking
 9       into a shop.  The accused's print was found on a bottle
10       in the shop, the bottle having been wrapped before the
11       crime and being found unwrapped and with a fingerprint
12       on it after the crime.  Evidence was led from
13       Fingerprint experts from Scotland Yard.  Lord Justice
14       General Clyde summarised the evidence and comments on
15       the approach to its sufficiency:
16           "Evidence was given by two Scotland Yard experts who
17       deponed that, in the first 16 of the recognised points
18       of comparison, there was complete identity between the
19       fingerprint mark on the bottle and the print of one of
20       the appellant's fingers.  The experts further deponed
21       that identity to the extent of the first 16 points was,
22       in their opinion, more than sufficient to warrant the
23       inference of identity between the finger which made the
24       mark on the bottle and the finger from which the print
25       was taken.  Lastly, they deponed that this method of
page  25
 1       identification has been widely followed not only in this
 2       country but elsewhere for many years; and that -- so
 3       far, at any rate -- no case of identity in the ridges of
 4       the skin of the fingers of two different persons has
 5       been discovered.  They went as far as to claim for the
 6       fingerprint method of identification the quality of
 7       infallibility.  This may well be thought (in words at
 8       least) to put the case too high, but the substance of
 9       their evidence was that, over an area of experience of
10       great extent, and over a tract of time of highly
11       significant duration, the fingerprint method of
12       identification has never once proved to be unreliable.
13       There was no counterevidence.
14           "In these circumstances the Sheriff-substitute
15       [that's the judge] left it to the jury to decide whether
16       they believed the fingerprint evidence, and -- if they
17       did -- whether they were convinced by it of the
18       appellant's guilt.  That is challenged; and the
19       questions according are whether -- there being nothing
20       before the jury except the fact of the appellant's
21       residence near the scene of the crime and the
22       fingerprint evidence -- the Sheriff-substitute [the
23       judge] was right in leaving the question of guilt to the
24       jury as he did, and whether the jury acted unreasonably
25       in convicting the appellant.
page  26
 1           "Fingerprint evidence is undoubtedly competent; that
 2       is settled.  If it is believed, it constitutes real
 3       evidence of the presence of the accused at the scene of
 4       the crime, in something the same way as a fragment of
 5       clothing (left behind by the criminal) or his boot-mark
 6       might be.  There was nothing in the present case to
 7       support, or indeed to suggest, any possibility of the
 8       finger-mark having been made on the surface of the
 9       bottle by the appellant, or by anyone else, at any time
10       other than that at which the crime was committed.  The
11       materials for a chain of circumstances evidence are thus
12       provided.  But then no chain is stronger than its
13       weakest link.  The value of fingerprint evidence depends
14       on the reliance which can be placed on the result of
15       expert investigation and experience -- in an immense
16       number of cases, examined over an extended period of
17       years -- to the effect that identity is never found to
18       be exist between the skin ridges on two different
19       persons' fingers.  This is what leads the experts to
20       claim infallibility in the finger mark method.  I
21       deprecate the use of the word 'infallibility' in this
22       connection at all.  What the experts obviously mean is,
23       not absolute, but practical infallibility -- that is to
24       say, a presumption of truth, the reliability of which
25       may be accepted, not because it is irrebuttable in its
page  27
 1       own nature, but because long and extensive experience is
 2       shown to provide no instance in which it has ever been
 3       successfully rebutted.  All proof depends at bottom on
 4       presumption; even the evidence of two credible and
 5       uncontradicted witnesses who speak to the same
 6       occurrence is probatio probata not because it is
 7       impossible that they should both be mistaken, but
 8       because of the high presumption that what two credible
 9       witnesses say happened in their presence did actually
10       happen.  Accordingly, the strength of the link provided
11       by the fingerprint depends on the degree of reliability
12       which -- on the evidence presented to them -- the
13       jury thought should be attributed to the fingerprint
14       method as applied by the police and the experts in the
15       present case.  They evidently thought the presumptions
16       in favour of its reliability so high as to warrant the
17       circumstantial inference that the appellant was the
18       criminal, or one of the criminals, who broke into the
19       shop."
20           It is open to question whether there is any
21       substantive difference between absolute and practical
22       infallibility.  The more telling point is that the
23       Lord Justice General cautioned the need to assess the
24       reliability of the evidence.  That is clearer from the
25       concurring opinion of Lord Sands, who said:
page  28
 1           "It is well settled in our criminal law and practice
 2       that, if an accused person has left anything by which
 3       his presence on the scene at the time of the offence can
 4       be proved and he can give no reasonable account of his
 5       presence there, the jury may convict him of such an
 6       offence as housebreaking or theft.  Now, what was left,
 7       or used to be left, occasionally in the past was
 8       generally garments or such instruments as tools.  But I
 9       do not see any reason why it should be held on the one
10       hand that to leave a chattel behind which clearly shows
11       the owner's presence warrants a conviction if the jury
12       so judge, while on the other hand, if a man leaves
13       something behind which just as clearly shows his
14       presence in the shape of a finger-mark, it should be
15       unreasonable for the jury to convict.  No doubt, in the
16       case of garments or tools, it must be clearly proved
17       that the garment or the tool, the presence of which is
18       founded upon, was really the property or in the
19       possession of the accused.  Similarly, as regards
20       finger-marks, if they are to be relied upon and treated
21       as conclusive, it must be clearly proved that they are
22       the finger-marks of the accused person.  That is done by
23       calling in persons expert in regard to finger-marks.
24       Now, two witnesses who are expert in the study of
25       finger-marks came and they said, 'We have examined the
page  29
 1       bottle and we have examined the print of the accused's
 2       fingers, and the mark on the bottle is the mark of the
 3       accused's finger.'  The day may come when that will be
 4       enough, but that day has not yet quite come.  This is a
 5       somewhat novel mode of criminal investigation.  It will
 6       not do for the Crown simply to lead evidence of two
 7       experts who say these were the man's finger-marks.  As I
 8       say, the day may come when that may be enough, and then
 9       it will be for the accused to endeavour to challenge or
10       shake that evidence.  But as matters stand, the Crown
11       must proceed to justify the opinion of the experts by
12       eliciting from them upon what their opinion is based.
13       That was done in the present case in the manner which
14       your Lordship in the chair has indicated, and the jury
15       were satisfied with the explanation.  Now, it might very
16       well be that such evidence might not satisfy every man,
17       that one might find persons who would say, 'It may be
18       that that evidence is true as regards past experience,
19       but we will not take it that there cannot be two people
20       with identical finger-marks, or that this is such an
21       improbability as to amounts practically to an
22       impossibility.'  A or B might say that; but it is a
23       question for the jury.  It is for them to judge of the
24       evidence, and, if on the evidence they are satisfied
25       with the explanations of the experts and the reasons
page  30
 1       they give, I do not think we can interfere.  In the
 2       present case the jury were satisfied.  I do not for a
 3       moment say that a jury are bound to accept fingerprint
 4       evidence and expert evidence connected with it, in every
 5       case as conclusive.  It is a question for the jury in
 6       the particular case, and, in order to disturb their
 7       verdict, it would be necessary to conclude that it was
 8       not a view which a jury might reasonably have taken.  I
 9       am unable to reach that conclusion here."
10           The next case of relevance is Rolley v HMA in 1945
11       in which Lord Justice Clerk Cooper directed a jury that
12       it could convict on palm-print evidence:
13           "Members of the jury, you are the masters of the
14       facts; but there is one fact upon which I think you will
15       have very little difficulty in making up your minds,
16       namely, that what I shall call for short a burglary was
17       committed during the week 11th to 18th September at 9
18       Campbell Road, Edinburgh, and that the unknown burglar
19       appropriated by theft the numerous articles to which
20       Mrs Lindsey and her little boy spoke.  The real issue in
21       this case -- and probably you will think the single
22       issue in fact -- is, who was the person who committed
23       that act of housebreaking?  Now, as Mr Cunningham quite
24       properly reminded you, it is, of course, for the Crown
25       to satisfy you that the accused was the person who was
page  31
 1       there and who committed that crime.  It is not for the
 2       accused to satisfy you of his innocence.  This means
 3       that, if in the end of the day you should remain in real
 4       and genuine doubt -- and it must be real and genuine
 5       doubt -- as to where the truth of this matter lies, then
 6       you would be bound to give the accused the benefit of
 7       that doubt.  On the other hand, if you were satisfied on
 8       what you have heard that the Crown has succeeded in
 9       fastening guilt on the accused -- if you think that it
10       is the just and reasonable inference from the evidence
11       led before you this morning -- equally it is your plain
12       duty to convict.
13           "Now, Mr Cunningham for the defence has accepted the
14       position and I so direct you, that the evidence on which
15       the Crown rely to link the accused with this offence,
16       namely, the palm print, is competent, admissible and
17       sufficient evidence of identification provided you
18       accept it.  The value of the evidence is a matter for
19       you.  I would like to explain that very briefly on the
20       lines referred to by the Solicitor-General, by pointing
21       out that in all cases of this kind, unless you have an
22       actual eye-witness, or the housebreaker is caught in the
23       act or in recent possession of the stolen goods, the
24       most common method upon which the prosecution rely for
25       bringing home guilt to the accused is to found upon
page  32
 1       something that the delinquent has left behind, and then
 2       by suitable evidence to show that that something is
 3       unquestionably associated and identified with the
 4       accused.  It may be a footprint, it maybe a garment, or
 5       a distinctive tool, or something of that kind.  In this
 6       case it is a palm-print; and it seems to me to make no
 7       difference what it is, provided that the evidence in its
 8       quality and substance is of a character to carry
 9       conviction to the jury, whose duty it is to determine
10       upon its value.  Something was said in the course of
11       evidence and in the speeches of learned counsel on the
12       word 'infallibility' and on that topic I want to read to
13       you a sentence or two from a case which dealt not with
14       palm prints but with fingerprints, and in it the late
15       Lord Clyde as Lord Justice General said this: 'The value
16       of fingerprint evidence depends on the reliance which
17       can be placed on result of expert investigation and
18       experience -- in an immense number of cases, examined
19       over a very extended period of years -- to the effect
20       that identity is never found to exist between the skin
21       ridges of two different persons' fingers.  This is what
22       leads the experts to claim infallibility for the
23       fingerprint method.  I deprecate the use of the word
24       "infallibility" in this connection at all.  What the
25       experts obviously means is, not absolute, but practical
page  33
 1       infallibility -- that is to say, a presumption of truth,
 2       the reliability of which should be accepted, not because
 3       it is irrebuttable in is own nature, but because long
 4       and extensive experience is shown to provide no instance
 5       in which it has ever been successfully rebutted.  All
 6       proof depends at bottom on presumption; even the
 7       evidence of two credible and uncontradicted witnesses
 8       who speak to the same occurrence is probatio probata not
 9       because it is impossible that they should both be
10       mistaken, but because of the high presumption that what
11       two credible witnesses say happened in their presence
12       did actually happen.'  Now, that is very like what the
13       Solicitor-General said, and, to apply it to this case,
14       you might figure the situation which would arise if
15       Mrs Lindsey and her little boy had come and said they
16       saw the thief and recognised him.  That would not be
17       infallible in any sense.  They might be wrong.  You are
18       presented not with that type of evidence but with a
19       different type of evidence, and it is for you to
20       consider, and for me in a very few words to assist you
21       in considering, the evidence which has been led on the
22       topic of the palm print and its sufficiency for
23       justifying the conclusion spoken to by the expert
24       witnesses that the palm print impression left on the
25       sideboard of the morning room of 9 Campbell Road was
page  34
 1       made by the left hand of the accused, and by no-one
 2       else.  You have had the evidence of four witnesses, and
 3       I feel bound to point out to you that they are men of
 4       wide and prolonged experience in the matter, and that
 5       the witnesses adduced from Scotland Yard are probably as
 6       rich in experience in this subject as anybody alive.  On
 7       the basis of that long experience and study of the
 8       subject, including contributions to its study in the
 9       shape of the book to which Superintendent Cherrill
10       referred, all four of them, as you will remember, said
11       that as a result of a comparison of the original
12       prints -- I mean by that the small prints -- and of the
13       enlargements which were subsequently made, they had --
14       and I think they all used the same words or almost the
15       same words -- no doubt whatsoever.  In order to make the
16       ground of their conviction more clear to you, they have
17       prepared two sets of photographs, and, in accordance
18       with Mr Cunningham's suggestion, I am willing that you
19       should take them with you when you retire in a few
20       moments -- No 5 the small pair of photographs made in
21       Edinburgh, and No 7 the big pair of enlarged photographs
22       made in London.  The photographs made in Edinburgh
23       indicate sixteen points of alleged identity, and the
24       photographs made in London indicate twenty-five points
25       of alleged identity.  Please remember what the witnesses
page  35
 1       said -- that identity on which they rely is the identity
 2       of the ridge characteristics, and in particular the
 3       sequence of the ridge characteristics, and that they
 4       discount and allow for any differences between the
 5       impressions which are due to the degree of pressure with
 6       which the palm may have been pressed on the surface when
 7       the impressions were taken, or any difference in the
 8       character of the surfaces on which the palm may have
 9       placed.  So that in asking you in looking at the
10       photographs I would ask you not to look at them with an
11       uninstructed eye, but with the eye of a person who has
12       heard the explanations of those expert witnesses.
13           "The criticism that was directed by Mr Cunningham
14       against those powerfully-expressed views was, I think,
15       two-fold.  He said the area was too small to enable a
16       proper conclusion to be drawn, and you heard the
17       justification which the four witnesses gave -- I think
18       all four were questioned on these lines -- for rejecting
19       that suggestion and showing they had enough to warrant
20       the conviction which they felt and expressed.  He said,
21       in the second place, that, as the experts had not
22       examined the palms of everybody in the world or in Great
23       Britain, they could not be certain that the identity of
24       ridge characteristics and of sequence of ridge
25       characteristics was as complete as they asserted.  I
page  36
 1       think the point to keep in view when considering that
 2       criticism, as you must, is the very point in the passage
 3       from the late Lord Clyde which I read a moment ago, that
 4       in this imperfect world absolute certainty is
 5       unobtainable by any method known to law or to science,
 6       and that what we are looking for is practical
 7       infallibility.  The real question for you will be
 8       whether you are satisfied, from the explanations given
 9       by these four gentlemen, that their experience has been
10       gathered over a sufficiently long number of years -- I
11       think twenty-six years in one case -- and has extended
12       over a sufficiently large number of cases to justify the
13       confidence with which their conclusion was expressed.
14       On the other side you will keep in view that the
15       accused, in addition to tendering a plea of not guilty,
16       to which he has adhered -- and that is why we are here
17       today -- has gone into the witness box and has in effect
18       repeated that plea of not guilty under oath, and this
19       also is an element that you will take into account.  But
20       the main point for your consideration will be whether,
21       on a consideration of the police and expert evidence,
22       you are satisfied beyond reasonable doubt that the just
23       and proper inference is that the accused was the person
24       who broke into that house, or whether you are not so
25       satisfied."
page  37
 1           Walkers on Evidence was written in 1964 and
 2       discusses fingerprint evidence at paragraph 12 on
 3       page 12 and 13.  That textbook picks up the observation
 4       that fingerprint evidence is not regarded as infallible
 5       "but as providing evidence of a degree of probability
 6       which is ample for judicial proof".  The text goes on to
 7       note that in Britain experts would not be prepared to
 8       commit themselves to the view that two marks were made
 9       by the same person unless there were at least 16
10       identical characteristics, adding that there is no
11       reason why evidence of a lower number of characteristics
12       in common should not be admissible, though perhaps not
13       sufficient in itself to justify conviction.
14           That concluding comment was part of the submission
15       made by the Solicitor-General (Rodger) in the first
16       Scottish case concerning DNA evidence, Welsh v HMA 1992,
17       where parallels were drawn with fingerprint evidence.
18       The Solicitor-General's submission and the conclusion of
19       the court are in the following passages from the opinion
20       of Lord Justice Clerk Ross, who said this:
21           "The Solicitor-General explained that this was the
22       first occasion upon which the appeal court had had to
23       consider evidence of DNA profiling.  He maintained,
24       however, that that did not create any difficulty in the
25       present case.  The trial judge had corrected reminded
page  38
 1       the jury that they did not require to be satisfied to
 2       the extent of mathematical certainty.  Although in
 3       practice in fingerprint cases one looked for sixteen
 4       points of similarity, there was no reason why evidence
 5       should not be given that a smaller number of
 6       similarities would suffice.  He submitted that it was
 7       open to the jury to accept the evidence of the experts
 8       to the effect that the blood sample from the appellant
 9       was the same blood as had come from the deceased's
10       trousers and the blood spots on the stairs of the close.
11       He submitted that the jury were entitled to be satisfied
12       with the expert evidence to the effect that their method
13       achieved a chance of one in 99 million.  That was not to
14       say that in another case it might not be necessary for
15       the court to direct the jury that they could not proceed
16       upon evidence which showed a different figure.  He also
17       stressed that the fact that the blood on the stairs
18       was wet was a significant factor as indicating that the
19       appellant must have been there shortly before the
20       arrival of the police.  He accordingly submitted that
21       there was sufficient evidence to entitle the jury to
22       conclude not only that the appellant had been present at
23       the locus, but that he had participated in the attack.
24       The Crown case depended upon concert and in his
25       supplementary report the trial judge had correctly
page  39
 1       summarised the evidence upon which the jury were
 2       entitled to rely in reaching the conclusion that there
 3       had been a concerted attack by three men upon the
 4       deceased.
 5           "We are quite satisfied that in this case there was
 6       sufficient evidence to entitle the jury to conclude that
 7       there was a concerted attack by three men, and that the
 8       appellant had participated in that assault and was not
 9       merely an onlooker.  The fact that the blood spots on
10       the stairs were wet and the fact that the appellant had
11       a fairly severe wound in his arm which he had sustained
12       at about the same time as the deceased met his death are
13       significant pieces evidence.  So also is the evidence
14       that the appellant's blood was on the deceased's
15       closing.  There is no question of the court laying down
16       as a matter of law that some particular statistical
17       possibility has to be achieved before a jury can proceed
18       upon DNA profiling.  DNA profiling, like fingerprint
19       evidence, depends to some extent on theory and
20       statistics, and it is for the jury to assess the
21       evidence and determine whether they accept it as
22       sufficient to warrant conviction.
23           "In the circumstances we are satisfied that there
24       was sufficient evidence to allow the jury to draw the
25       inference not only that the appellant was present at the
page  40
 1       assault but that he was a participant in the assault.
 2       It follows that the appeal against conviction must be
 3       refused."
 4           Coming now to relaxations of the 16 point standard
 5       in Scottish practice, Evett & Williams mentioned two
 6       exceptions to the 16 point standard.
 7           This is covered from a Scottish perspective in the
 8       witness statements of the Scottish Criminal Record
 9       Office witnesses.
10           Mr Macpherson gives some insight into the use made
11       in 1997 of fingerprint comparisons with fewer than
12       16 points in sequence and agreement.  The Scottish
13       Criminal Record Office could send out a strong suspicion
14       letter to the police if they were able to identify 10 to
15       15 points on a mark.  There was also the "ten and ten"
16       rule, whereby the identification of 10 points on each of
17       two digits was sufficient for identification.  There was
18       also a "dire and crucial" rule, "where there was no set
19       number of points of comparison because of the serious
20       nature of the crime.  Such identifications had to be
21       made by a person of experience."  Mr Foley places the
22       decision whether or not such evidence was to be used
23       with the Procurator Fiscal.
24           Mr Mackenzie says that the rule of thumb in the
25       Glasgow Bureau was that if there were less than ten
page  41
 1       characteristics present in a mark then it would be
 2       deemed insufficient for comparison.  By contrast,
 3       Mr Dunbar, while saying that from a quality assurance
 4       perspective there was no strict numeric standard, says
 5       that for an elimination, "the number of characteristics
 6       in sequence and agreement was probably viewed as
 7       somewhere around eight."  Miss McBride quotes the same
 8       number of characteristics for an elimination.
 9           Evett & Williams point to a logical inconsistency in
10       legal practice.  They begin from the premise that, "It
11       is important to understand that a fingerprint expert
12       regards any identification as a certainty", and this is
13       whether he has reached that conclusion on 16 points or
14       less.  However, with legal practice having set a minimum
15       standard of 16 points, that opinion would not be
16       regarded as" provable" in court, save in a case of
17       particular importance.  The logical inconsistency is
18       that the legal system would admit of the application of
19       a lower standard in a more important case.
20           Turning to differences of opinion, in the present
21       case Scottish Criminal Records Office witnesses,
22       addressing practice down to 1997, draw a distinction
23       between a dispute between a fingerprint officers where
24       one says that a mark has not been correctly identified
25       and a case where there is a difference of opinion as to
page  42
 1       the number of characteristics in sequence or agreement.
 2       An example is Mr Macpherson: (a) In a case where an
 3       officer thought there had been a mis-identification the
 4       matter would have to be reported to the chief inspector
 5       in charge of the bureau but (b) where two differed as to
 6       the number of points they could discuss the matter or
 7       the comparison could be taken to someone else to
 8       analyse.
 9           Turning to scientific evidence, going back to Welsh,
10       it is worth stressing this, Lord Justice Clerk said:
11           "DNA profiling, like fingerprint evidence, depends
12       to some extent on theory and statistics, and it for the
13       jury to assess the evidence and determine whether they
14       accept it as sufficient to warrant conviction."
15           There are two aspects to this: firstly, what theory
16       and statistics underpin fingerprint evidence; secondly,
17       what is the function of a fingerprint expert as a
18       witness in a case and how does that impact on the proper
19       presentation of fingerprint evidence for assessment by
20       the jury?
21           In 1933 Lord Sands said:
22           "Now, two witnesses who are expert in the study of
23       finger-marks came and they said, 'We have examined the
24       bottle and we have examined the print of the accused's
25       fingers, and the mark on the bottle is the mark of the
page  43
 1       accused's finger.'  The day may come when that will be
 2       enough, but that day has not yet come."
 3           There is room to argue that in many contexts in
 4       Scottish criminal practice that that day had come long
 5       before the Asbury and McKie trials.
 6           Fingerprint evidence is within the category of
 7       "routine evidence" covered initially by section 26 of
 8       the Criminal Justice (Scotland) Act 1980.  Westlaw
 9       indicates that that section was repealed with effect
10       from 1st April 1996 but was then replaced by a
11       corresponding provision in section 280 of the Criminal
12       Procedure (Scotland) Act 1995.
13           The current statutory background may be taken from
14       subsection 4 of section 280 of the 1995 Act and I quote:
15           "For the purposes of any criminal proceedings, a
16       report purporting to be signed by two authorised
17       forensic scientists shall, subject to subsection (5)
18       below, be sufficient evidence of any fact or conclusion
19       as to fact contained in the report and of the authority
20       of the signatories."
21           The qualification in subsection (5) relates to the
22       requirement that "forensic scientists" must be
23       "authorised" for this purpose by Scottish Ministers.
24           Reading subsections (4) with subsection (6), the
25       section provides that, in the absence of a defence
page  44
 1       challenge, a report by a duly authorised fingerprint
 2       scientist is "sufficient evidence of any fact or
 3       conclusion as to fact contained in the report and of the
 4       authority of the signatories."
 5           Fingerprint practitioners come within the range of
 6       "forensic scientists" for this purpose.  Accordingly, in
 7       the absence of defence challenge the evidence contained
 8       in their reports is sufficient evidence of the facts and
 9       conclusions of fact contained in it.  In other words,
10       the bald statement by a fingerprint practitioner that a
11       crime scene mark and the fingerprint of a particular
12       individual are identical can be enough to prove that
13       fact, without need even for explanation or
14       demonstration.
15           The critical qualification is that that applies only
16       in the absence of challenge by the defence.  In
17       assessing the practical significance of that
18       qualification, one has to ask how often fingerprint
19       identifications were challenged in court.  The answer to
20       that question, and its practical implications, are to be
21       found in a book by Canadian expert, Mr Ashbaugh, and I
22       refer to page 4 of his introduction to his book
23       "Quantitative-Qualitative Friction Ridge Analysis" where
24       he comments:
25           "A fundamental circumstance that helped the new
page  45
 1       identification process gain acceptance was the fact that
 2       few identification specialists were challenged in court.
 3       Legal counsel shied away from dwelling on a science that
 4       was considered exact and infallible, a belief that was
 5       difficult to dispel without adequate and structured
 6       literature being available.  Most challenges were
 7       haphazard at best, usually ill-prepared and often
 8       confusing.  The majority were doomed to fail.  Each
 9       failure further entrenched the infallibility of the
10       science."
11   THE CHAIRMAN:  Now if it would be convenient, Mr Moynihan, I
12       think, if we stop for 15 minutes.  I imagine it is I
13       fairly difficult for the stenographer with the speed
14       with which we are going.  So a short rest then for 15
15       minutes and we will sit again at noon.
16   (11.45 am)
17                         (A short break)
18   (12.00 pm)
19   MR MOYNIHAN:  Dealing with the law of evidence, fingerprint
20       evidence has to be set in the context of Scots Law in
21       relation to proof generally in criminal cases and expert
22       evidence specifically.  Three rules require
23       consideration: best evidence; corroboration, and proof
24       beyond reasonable doubt.
25           As far as the best evidence rule is concerned, in
page  46
 1       addition to producing the report under section 280 of
 2       the Criminal Procedure (Scotland) Act 1995, the
 3       prosecution would lodge as productions at the criminal
 4       trial the two pieces of evidence critical to the
 5       identification: the first is a crime scene mark and
 6       fingerprint form relating to the individual whose mark
 7       it has been identified as.  This was supplemented by a
 8       Scottish Criminal Record Office booklet containing
 9       enlarged copies of the mark and the fingerprint
10       side-by-side with lines pointing to the 16
11       characteristics in each of the two images.
12           Gilchrist states in terms:
13           "The Scottish Criminal Record Office has always
14       stressed that the charting enlargements are used for
15       illustrative purposes only."
16           The rationale for the Scottish Criminal Record
17       Office witnesses describing each case specific
18       enlargements as only "illustrative" may lie in the best
19       evidence rule.  That is the rule that prohibits parties
20       from leading evidence by reference to copies of critical
21       documents or exhibits.  So in a case where an individual
22       has been stabbed to death by a knife and there is
23       something about the knife that is incriminating the
24       prosecution must lodge the knife and not simply a
25       photograph of it and if a witness were to be asked to
page  47
 1       comment on the photograph, the defence could
 2       successfully object to the witness answering the
 3       question.
 4           That the best evidence rule may be relevant here is
 5       consistent the understanding in the HMICS "Primary
 6       Inspection Report" section 3.11.  The "best evidence"
 7       rule required by law is the crime scene lift or
 8       photograph of the mark and the print form.  That is
 9       consistent with the decision in HMA v Dennison in 1978.
10       An enlargement is merely a visual aid used to explain
11       evidence in court.
12           In one of the oral sessions before the Justice 1
13       Committee Mr Macpherson gave evidence that since 1983,
14       Scottish Criminal Record Office Fingerprint Bureau was
15       the only one in Britain that prepared case-specific
16       enlargements for trial.  Other bureaus used generic
17       enlargements.
18           Again, the rationale may be found in the HMICS
19       report.  Fingerprint evidence tended to be presented in
20       terms of a brief report amounting to little more than
21       certification of the identification to the 16 point
22       standard.  Experts working to the 16 point standard in
23       Scotland did not regularly and fully document their
24       findings, including the nature and location of the
25       identical characteristics found.  This was only done
page  48
 1       when photographic enlargements were requested for court
 2       purposes.  As noted, these enlargements were visual aids
 3       and in some instances they were generic but more often
 4       case-specific.  The complication for the Scottish
 5       Criminal Record Office was that the computer that they
 6       latterly used to produce enlargements for court (known
 7       as the charting PC) produced poor images that tended to
 8       open Scottish Criminal Records Office witnesses to
 9       challenge.
10           Turning to corroboration and proof beyond reasonable
11       doubt, Scots law requires corroborated proof of the
12       identification of the accused as the perpetrator of the
13       crime alleged and requires proof beyond reasonable
14       doubt.
15           There are subtleties to each of these two
16       propositions dealing, firstly, with corroboration.
17           The essence of the rule of corroboration is that an
18       individual may not be convicted of a crime in Scotland
19       on the evidence of single witness, no matter how
20       convincing the evidence of that witness may be.  There
21       must be at least two witnesses pointing to the guilt of
22       the accused before there can be a conviction.
23           Though it is said that corroboration must come from
24       two independent sources, corroborated proof can come
25       from essentially one piece of evidence, such as a single
page  49
 1       fingerprint.  Provided at least two witnesses speak to
 2       each step in the sequence of evidence (that is the
 3       finding of the mark at the scene, that the photograph or
 4       lift in court relates to that mark, that the fingerprint
 5       form relates to the accused and that there is a match
 6       between an accused's print and the mark), a single
 7       fingerprint can provide corroborated proof, examples
 8       being Hamilton and Lanagan.
 9           Furthermore, corroboration does not require evidence
10       exclusively indicative of guilt.  If there is clear
11       evidence from one witness, corroboration can come from
12       evidence from a second witness consistent with guilt,
13       even if that second source of evidence could be capable
14       of innocent explanation.  That is the case of Fox in
15       1998.  It is not necessary the second source be more
16       consistent with guilt than innocence; it suffices that
17       it is capable of being consistent with guilt.
18           In particular, corroboration of a positive
19       identification (for example, by a witness well
20       acquainted with the accused) can come from evidence
21       short of positive identification, such as resemblance,
22       even if the second witness is uncertain and cannot point
23       to any peculiar physical characteristic to inform the
24       degree of resemblance.  That is the case of Adams in
25       1999.  Indeed in one case (Kelly) a conviction was
page  50
 1       upheld where the corroboration came from a witness who
 2       picked out the accused at an identification parade as
 3       one of two men on the parade whose build and hairstyle
 4       resembled that of one of the individuals who had broken
 5       into his house; and that despite the fact that the
 6       second person similarly picked out at the parade was a
 7       stand-in, and, therefore, known not to have been
 8       implicated.
 9           Turning now to proof beyond reasonable doubt.  Proof
10       beyond reasonable doubt does not require proof to the
11       level of mathematical certainty.  In Nolan v McLeod in
12       1987 a man was convicted based on two identifications.
13       One came from the complainer (ie the victim), who knew
14       the accused and said that he was 80 per cent certain of
15       his identification, corroboration coming from a stranger
16       who said he was 75 per cent sure.
17           Whether or not there is proof beyond reasonable
18       doubt is a matter for the jury (or judge in a summary
19       trial).  It is not permissible to ask a witness whether
20       he is sure beyond reasonable doubt, though he can be
21       questioned relative to the nature and extent of any
22       doubt that he may have.  That the case of Nolan v
23       McLeod.
24           In the commentary to Ralston there is a summary of
25       the rules I have just been describing which I will pass
page  51
 1       over and move to1.8.13.
 2           Fingerprint evidence has not traditionally been
 3       prepared or presented to the lower standard of
 4       "resemblance", as opposed to unique identification.  Sir
 5       William Rae's reason for the setting up of the ACPOS
 6       Presidential Review Group is instructive:
 7           "... there was only one acceptable standard of
 8       accuracy in relation to fingerprint identification,
 9       which was 100 per cent and anything less than
10       100 per cent was unacceptable."
11           Nonetheless, in considering fingerprint evidence it
12       may be necessary to recall that Scots Law does recognise
13       a distinction between "scientific proof", that is the
14       degree of proof that might establish a proposition to
15       the satisfaction of a scientist, and the level of proof
16       required by the court.  The difference between
17       "scientific proof" and the civil standard of proof on
18       the balance of probabilities was discussed in the House
19       of Lords case Dingley v Chief Constable in 2000.  Even
20       the higher criminal standard of proof beyond reasonable
21       doubt does not require mathematical certainty: in that
22       regard I refer, again to the case of Nolan v McLeod.
23           There are two distinct propositions which may be
24       involved in fingerprint evidence.  The first is no two
25       individuals have been known to share the same
page  52
 1       fingerprint, hence fingerprints can provide a reliable
 2       basis for identifying an individual.  Second is that the
 3       evidence by a particular fingerprint practitioner
 4       relating to the presence of a certain number of common
 5       characteristics is sufficient to prove that a particular
 6       individual is the donor of the particular crime scene
 7       mark.
 8           The first proposition seems to be commonly accepted,
 9       to such an extent that the English Law Commission (in
10       its Consultation Paper "the Admissibility of Expert
11       Evidence in Criminal Proceedings in England and Wales")
12       has recently cited it as an example of a proposition of
13       which "judicial notice" may be taken.  That means that
14       the reliability of the proposition is regarded as being
15       so well founded that any challenge to it in court would
16       be regarded as manifestly unfounded.
17           However, it has been argued by Cole in an article
18       "Is Fingerprint Identification Valid?  Rhetorics of
19       Reliability in Fingerprint Proponents' Discourse" that
20       the second proposition does not necessarily flow from
21       the first.
22           Compounding variables include (1) the quality of the
23       crime scene mark and fingerprint of the known
24       individual, (2) the skill training and aptitude of the
25       particular fingerprint practitioner and (3) the criteria
page  53
 1       by which identification of fingerprints is judged.
 2       Linked to (3) is the issue of the statistical incidence
 3       of specific combinations of ridge characteristics
 4       occurring in the population.
 5           There is a range of views here.  In the background
 6       to the present case there have been differences in
 7       detail among even those experts who have agreed that Y7
 8       can be attributed to Ms McKie.  Each may agree that Y7
 9       is the print of Ms McKie, but there is a wide variation
10       in the number of characteristics found by the experts,
11       with some reaching this conclusion with fewer than
12       16 points.
13           Take the Scottish Criminal Record Office witnesses.
14       The four witnesses who signed the court reports (that's
15       Macpherson, Stewart, McKenna and McBride) say that in
16       relation to Y7 they always worked to the 16 point
17       standard, even when that evidence was initially directed
18       only to an elimination exercise at the time of the
19       Asbury trial.  Mr Mackenzie observed 10 to 11 points on
20       17th February, 12 or 13 on 18th February and 21 by the
21       time of Tulliallan, on each occasion using different
22       material.  Mr Dunbar saw at least 10 but less than 16
23       on 17th February.  Mr Bruce found 8 during the blind
24       test and Mr Foley found 10 during the blind test.
25           Evett & Williams report that in 1978 the National
page  54
 1       Conference of Fingerprint Experts reached general
 2       agreement that if there were 8 points of resemblance
 3       present, that was sufficient to establish identity
 4       beyond all reasonable doubt.
 5           However, as a matter of Scots law, the question is
 6       not whether any witness personally entertains no
 7       reasonable doubt in relation to the proposition to which
 8       he speaks.  The issue is one for the jury (or judge in a
 9       summary case): is the jury satisfied beyond reasonable
10       doubt by the evidence led.
11           This is linked to the second, more specific, issue
12       relating to the proper function of an expert witness in
13       a court case, be it civil or criminal.  This is topical
14       because of the recent publication of the English Law
15       Commission consultation paper on the Admissibility of
16       Expert Evidence in Criminal Proceedings in England and
17       Wales.
18           There is, however, the recent survey of the law by
19       Lord Nimmo Smith in McTear v Imperial Tobacco reaching
20       back to a classic statement by Lord President Cooper in
21       Davie in 1953 that said:
22           "Expert witnesses, however skilled or eminent, can
23       give no more than evidence.  They cannot usurp the
24       functions of the jury or judge sitting as a jury, any
25       more than a technical assessor can substitute his advice
page  55
 1       for the judgment of the court ... their duty is to
 2       furnish the judge or jury with the necessary scientific
 3       criteria for testing the accuracy of their conclusions,
 4       so as to enable the judge or jury to form their own
 5       independent judgment by the application of these
 6       criteria to the facts proved in evidence.  The
 7       scientific opinion evidence, if intelligible, convincing
 8       and tested, becomes a factor (and often an important
 9       factor) for consideration along with the whole other
10       evidence in the case, but the decision is for the judge
11       or jury.  In particular the bare ipse dixit of a
12       scientist, however eminent, upon the issue in
13       controversy, will normally carry little weight, for it
14       cannot be tested by cross-examination nor independently
15       appraised, and the parties have invoked the decision of
16       a judicial tribunal and not an oracular pronouncement by
17       an expert."
18         Lord Nimmo Smith was also referred to a
19       modern textbook Wilkinson, the Scottish
20       Law of Evidence, which reinforces the
21       guidance in Davie, and there is a quote
22       there that people can just in due course.
23         Section 280 of the Criminal Procedure
24       (Scotland) Act 1995 is a misleading guide
25       here.  It applies where fingerprint
page  56
 1       evidence is truly routine, that is to say
 2       where it is unchallenged.  If the defence
 3       challenges the evidence, then the
 4       fingerprint expert comes within the reach
 5       of the rules of law pertaining to any
 6       expert.  His function is not confined to
 7       a mere bald assertion of a conclusion on
 8       identification.  Whilst it is the
 9       function of the expert to express an
10       opinion and doubtless to do so in a
11       manner apt to persuade the jury,
12       nonetheless the expert must inform and
13       educate the jury, enabling the jury
14       properly to assess his evidence and to
15       each its own conclusion.
16         Turning to non-numeric and current
17       reporting, current practice has moved to
18       the non-numeric approach.  Mr Mackenzie
19       says that the move to non-numeric
20       occurred in Scotland in 2006.
21         Equally, witnesses indicate that the
22       style of report writing has changed.  An
23       example is Mr Mackenzie at paragraph 64.
24       He says that in 2006 the Bureau was
25       instructed to cease producing
page  57
 1       photographic enlargements.
 2         Mr Dunbar says that he was present at
 3       discussions in relation to the use of
 4       non-case specific photographic
 5       enlargements with senior figures such as
 6       Cathy Jamieson and Mr Gilchrist.  He says
 7       that those figures were initially opposed
 8       but "we felt it was better as it removed
 9       the possibility of a jury thinking the
10       enlargement was actual evidence in the
11       case."
12         The now Sheriff Gilchrist has no
13       recollection of this meeting.
14         The numeric and non-numeric approaches
15       have one point in common: in each case
16       the existence of even one unexplained
17       difference between the mark and the
18       fingerprint is fatal to an
19       identification.  The difference lies in
20       the approach to an identification in the
21       absence of an unexplained difference.
22         Under the numeric approach, there was a
23       minimum threshold requirement of
24       16 points in common.
25         With the non-numeric there is no
page  58
 1       minimum threshold.  Instead, the emphasis
 2       is on the quality, not the quantity, of
 3       the similarities between the mark and a
 4       fingerprint.  So now a fingerprint
 5       practitioner can testify to an
 6       identification based on common
 7       characteristics, provided that a study of
 8       the mark and prints as a whole supports
 9       the view that the common features are of
10       sufficient quality to be consistent with
11       a unique identification.
12         There is, however, no objective
13       standard of quality.
14         That concludes chapter 1 and the issues
15       that are considered to arise from this
16       are: firstly, the contents of this
17       chapter will primarily be a matter for
18       legal submission in due course.
19         That said, there is an issue whether
20       this chapter contains an accurate account
21       of the 16 point standard, and the
22       exceptions to it, as it was understood in
23       practice in 1997 to 1999.
24         What was the purpose of producing
25       charted enlargements in criminal trials?
page  59
 1       Was that properly appreciated in 1997 to
 2       1999 and were the enlargements produced
 3       in the Asbury and McKie cases fit for
 4       purpose?
 5         An issue for the Inquiry, particularly
 6       looking to potential recommendations, is
 7       whether the approach to these
 8       prosecutions would have been materially
 9       different had the non-numeric approach
10       been applied.
11         Some of these questions are a matter
12       for legal analysis, rather than evidence.
13       However, insofar as questions of practice
14       are concerned, the potential witnesses
15       are: Mr Macpherson, Mr Stewart,
16       Ms McBride, Mr McKenna, Mr Foley,
17       Mr Geddes, Mr Dunbar and Mr Mackenzie.
18         To the extent that these witnesses
19       coincide in their views it may not be
20       necessary to ask them all to address
21       these specific points in oral evidence.
22         I now turn, sir, to the chronological
23       sequence and this is chapter 2 of my
24       presentation.  We begin with Wednesday
25       8th January 1997.
page  60
 1         As I have said, on Wednesday
 2       8th January Marion Margaret Campbell Ross
 3       was found dead in her home at 43 Irvine
 4       Road, Kilmarnock.  She was 51 years old
 5       when she died.
 6         She had not been seen since 4.00 pm on
 7       Monday, 6th January.  About 6.00 pm on
 8       8th January her body was found in the
 9       bathroom of the house.  A relative had
10       become concerned when she had failed to
11       answer her telephone.  A neighbour, Alan
12       Kinnaird, who kept a set of keys, and
13       James Campbell, a cousin, gained access,
14       and found Miss Ross.  The emergency
15       services were summoned.
16         Miss Ross had formerly worked as a
17       clerk with the Royal Bank of Scotland in
18       Kilmarnock.
19         43 Irvine Road, Kilmarnock, had
20       originally been her parents' house.  It
21       was a semi-detached bungalow.  It had
22       been extended on two occasions.  The more
23       recent of these was in 1995, when an en
24       suite shower room had been added to a
25       rear bedroom, living accommodation had
page  61
 1       been formed in the roof space, and a
 2       porch had been built at the front door.
 3       The en suite facilities and the
 4       accommodation in the roof space had been
 5       virtually unused since their
 6       installation.  By contrast, the ground
 7       floor rooms were in an unkempt condition.
 8         To gain access to the front of the
 9       house, it was necessary to pass through
10       the porch and a total of three doors.
11         There was no sign of forced entry.  The
12       back door was locked with the keys in
13       place.  The inner most of the three doors
14       giving access at the front of the house
15       had been found locked with no keys in any
16       of those doors.
17         The first police officers on the scene
18       were PC Hope and PC Stirling.  They
19       arrived at about 18.17.  They found
20       Mr Kinnaird and Mr Campbell outside the
21       house and ambulance personnel in
22       attendance.  A supervisory officer and
23       CID were summoned and a number of police
24       officers arrived.
25         A police surgeon, Dr Lennox, was called
page  62
 1       and pronounced Miss Ross dead at about
 2       18.56.
 3         At 18.43 PC William Jamison arrived and
 4       started the log.  Before the log was
 5       started, all of the relevant details were
 6       noted in PC Hope's notebook.
 7         Detective Chief Inspector Stephen Heath
 8       was called at home.  He went to
 9       Kilmarnock Police Station, where he was
10       met by a pathologist, Dr Cassidy, and
11       Detective Superintendent Malcolm.  He was
12       briefed by DC Gray.
13         Detective Chief Inspector Heath says
14       that he arrived at the scene at 20.30,
15       along with the pathologist, Dr Marie
16       Cassidy and Detective Superintendent
17       Malcolm.  The log records him as having
18       arrived with Dr Cassidy and Martin
19       Fairley of the forensics laboratory, with
20       Detective Superintendent Malcolm arriving
21       shortly thereafter.  He was made aware
22       that there had been a suggestion that
23       there was a possibility of suicide but
24       was of the view that murder was a strong
25       possibility.  He says that he treated it
page  63
 1       as a murder investigation from the
 2       outset.  He gave instructions that night
 3       including that the house be secured and
 4       kept under guard, the body be
 5       photographed, the locus videoed, and the
 6       body moved to the mortuary and
 7       house-to-house inquiries commenced.
 8         Inspector McAllister also said there
 9       was no practical difference in the
10       treatment of the locus as between a
11       suspicious death and a confirmed murder.
12         Dealing with the possibility that Y7
13       was the print of an officer, Detective
14       Constable Gray deposited on 8th January,
15       Scenes of Crime Officer Michael Moffat
16       attended.  He arrived at 20.10.  He was
17       instructed to take a video and
18       photographs of the scene and did so.  His
19       still photographs were production 13 at
20       the Asbury trial.  His video was
21       production 106.  Mr Moffat placed metal
22       treads on the front porch floor.  His
23       evidence gives rise to the first factual
24       contradiction in the evidence and it
25       relates to the suggestion that Y7 may
page  64
 1       have been the mark of another police
 2       officer, Detective Constable Gray, who
 3       was working with him on 8th January 1997.
 4         Mr Moffat was present on
 5       14th January 1997 when Y7 was discovered
 6       on the bathroom doorframe.  He says that
 7       his suspicion at the time was that the
 8       mark was that of DC Gray.  Mr Moffat
 9       recalls seeing DC Gray resting his left
10       hand on the right-hand doorframe of the
11       bathroom about 4 to 5 feet above the
12       ground just before the two of them lifted
13       the deceased's body on 8th January.
14       After they had moved the body Mr Moffat
15       notice that thumb of one of Mr Gray's
16       gloves were burst and Mr Moffat spoke to
17       him about this at the time, advising that
18       he should report to his boss that one of
19       his prints might show up at the scene.
20         He says that on some date that he
21       cannot now recall he phoned Kilmarnock
22       Police Station and left a message for
23       Gray telling him to lodge his elimination
24       prints to pre-empt any disciplinary
25       action.
page  65
 1         He says he mentioned this suspicion to
 2       DI McAllister on 23rd January 1997.
 3         He also says that when he was cited as
 4       a witness for the McKie case he became
 5       aware that the defence case was going to
 6       be mis-identification and that he
 7       immediately thought of Gray again.  He
 8       phoned Chief Inspector Hogg and suggested
 9       to him that he had Gray's prints
10       compared.  Hogg told him not to start
11       going down that road at this stage but he
12       agreed to have Gray's print checked
13       against Y7.  The next day Hogg told him
14       that "Charlie" had checked Gray's print
15       and it was not his.
16         Referred to his Operation Alba
17       statement (ie, the statement taken by the
18       team of officers led by Detective Chief
19       Constable Mackay that investigated an
20       allegation of criminal conduct by certain
21       SCRO fingerprint officers in 2000)
22       Mr Moffat says that he recalls Inspector
23       Baillie telling him not to get involved
24       as it was going to get messy.
25         He feels that his career has been
page  66
 1       blighted as a result of his involvement
 2       in the McKie case.
 3         A statement has been provided by DC
 4       Gray.  He says that he was wearing latex
 5       gloves and that he does not recall them
 6       being damaged at any time.
 7         James Kerr was present when Y7 was
 8       found on 14th January and he does not
 9       recall hearing any speculation as to who
10       might have left the mark, nor did he hear
11       any mention of Gary Gray.
12         Mr Wilson can only speak to office
13       rumour.
14         Mr Thurley has no recollection of
15       conversations about burst gloves.
16         Mr McAllister denies that anything was
17       said to him by Moffat on 23rd January
18       about Gray or a burst glove.
19         However, Mr Hogg confirms that
20       Mr Moffat did raise with him the
21       possibility of Y7 having been left by
22       some other person.  He spoke to him about
23       this on several occasions and has a note
24       of having done so on 17th August 2000.
25       The point had arisen before and he had
page  67
 1       mentioned it to Mr Heath.  Mr Hogg cannot
 2       now recall the name of the other person
 3       mentioned by Mr Moffat but he says that
 4       this person's elimination prints would
 5       have been checked.
 6         A Scottish Criminal Record Office
 7       worksheet recording the checking of
 8       elimination prints shows the batch of
 9       marks Y7 to V9 compared against PC Gary
10       Gray on 20th and 21st February 1997.  One
11       of the examiners would appear to be
12       Mr Geddes.  The second set of initials is
13       unknown.  The Inquiry understands that as
14       marks are identified or eliminated they
15       are removed from the batch and subsequent
16       comparisons are confined only to the
17       remainder.  It cannot be determined from
18       this list whether Y7 was checked against
19       Gary Gray or only the other marks that
20       remained in the batch as at that date.
21       Mr Geddes has no recollection of him.
22         Operational Alba (that's Detective
23       Chief Constable Mackay and his team)
24       investigated this matter.  Elimination
25       prints, including those of Mr Gray, were
page  68
 1       sent to the National Training Centre,
 2       Durham, to be checked against Y7.  The
 3       Mackay report concludes that Y7 is not
 4       the mark of Detective Constable Gray.
 5       The Inquiry has not found a report from
 6       the NTC, Durham, relating to the
 7       comparison of Gray's print but further
 8       inquiries are being made.
 9         Turning to Thursday 9th January, a
10       post-mortem examination was instructed.
11         The post-mortem examination was carried
12       out by Professor Vanezis and Dr Cassidy
13       on 9th January 1997.  The cause of death
14       was certified as multiple stab wounds to
15       the head and neck.  Detective Chief
16       Inspector Heath learned of the results of
17       the post-mortem examination at about
18       2.00 pm on 9th January.  It was clearly a
19       murder Inquiry.
20          Strathclyde Police initiated a Major
21       Enquiry.  The Senior Investigating
22       Officer was DCI Heath.  His deputy was
23       Detective Inspector Alexander McAllister.
24       Inspector James Thomson was appointed
25       office manager.  Mr Heath requested that
page  69
 1       the HOLMES computer system be installed.
 2       Officers were drafted in from other parts
 3       of Strathclyde Police, including the
 4       Centralised Serious Crime Squad.
 5         Mr McAllister was also assigned the
 6       liaison role linking to the forensic
 7       science lab, Identification Bureau and
 8       SCRO fingerprints section.  In this
 9       capacity he spoke throughout the ensuing
10       investigation to Mr Hogg at the
11       identification bureau and his principal
12       contact at SCRO was the team leader,
13       Mr Macpherson.  He says that he would
14       have communicated regularly with
15       Mr Macpherson, exchanging information and
16       giving updates on investigative
17       priorities.
18         A briefing was held at 16.10 during
19       which the video of the locus was shown.
20       DC James Kerr and PC McIntyre were
21       appointed to control the locus and assist
22       Identification Bureau and forensic staff.
23       DC Kirkland and PC Stevens were the
24       production officers.  The instruction was
25       that with the exception of those officers
page  70
 1       and the Scenes of Crime
 2       Officers/Identification Bureau staff,
 3       police officers were not to enter the
 4       house.
 5         Mr Heath says that there was no need
 6       for other officers to enter the house
 7       because a video was available.  In due
 8       course he authorised Michael Orr to visit
 9       the locus and he later learned that
10       Mr McAllister had allowed other officers
11       to visit.  However, he subsequently
12       became aware that the logging at the
13       locus was not carried out properly and
14       that had to be investigated by Detective
15       Superintendent Malcolm.
16         As for the Scenes of Crime examination,
17       there are some incidental factual issues
18       regarding the proficiency of the Scenes
19       of Crime examination of the house.
20         Chief Inspector Hogg was head of the
21       Identification Bureau.  He was informed
22       of the death of 9th January 1997.  He was
23       told at the outset that it could be a
24       murder or possibly a suicide.  He says
25       that the scene was treated in the same
page  71
 1       manner as if a murder had been confirmed
 2       from the outset.  He arrived at the scene
 3       at about 10.00 am with Mr Thurley, having
 4       also instructed Mr Ferguson to attend.
 5       He attended in order to assess the scene
 6       and ascertain what resources were
 7       required.  He believes that a forensic
 8       examination had been completed overnight.
 9       He entered the house and ascertained that
10       a full examination would take some time.
11       When he left there was an agreed
12       strategy.
13         Mr McAllister says that he was present
14       with Mr Hogg that morning, the purpose
15       being to agree the strategy for the
16       examination of the locus.  He says that
17       there were three stages to the
18       examination of the locus: (a)
19       photography/videoing of the locus; (b)
20       forensic examination for blood and other
21       biological material; and (c) examination
22       to develop latent fingerprints.  He
23       believes that the forensic examination
24       may have started on 8th January 1997.
25         The scene of crime examination began on
page  72
 1       the morning of 9th January.  Initially
 2       Scene of Crime Officers (Thurley,
 3       Ferguson, Wilson and Hunter) attended,
 4       but Wilson and Hunter were sent away from
 5       the scene.  Mr Hogg instructed that
 6       Thurley and Ferguson do the hall first.
 7       Mr Thurley was the team leader.  Thurley
 8       and Ferguson examined various parts of
 9       the locus, including the doorframe of the
10       bathroom, with an aluminium powder.  At
11       about 4.00 pm Mr Thurley received a call
12       from the forensic laboratory and removed
13       certain items including the bathroom door
14       itself.
15         Chief Inspector Hogg says that he
16       instructed Thurley to stop what he was
17       doing because forensic scientists wanted
18       to access the house.  His recollection is
19       that the forensic scientists were
20       interested in the possibility of
21       obtaining footwear impressions and he was
22       given word that they would rather look at
23       the house again themselves.  Hogg says
24       that he did not instruct Thurley to
25       remove the bathroom door.
page  73
 1         David Ferguson is one of the Scene of
 2       Crime Officers who first attended the
 3       locus on 9th January 1997.  In
 4       January 2000 he e-mailed Mr McKie with
 5       criticisms of the conduct of the forensic
 6       examination, including the suggestion
 7       that forensic examination had been
 8       delayed pending the post-mortem because
 9       of the suggestion that Miss Ross may
10       have committed suicide.
11         In his statement to the Inquiry,
12       Mr Ferguson confirms that the instruction
13       he received at the scene was to treat the
14       incident as murder.  He says that with
15       suicides Scene of Crime Officers would
16       not normally carry out an examination,
17       and in particular there would not
18       normally be an examination for
19       fingerprints.  In this case, of the four
20       Scene of Crime Officers present, two were
21       sent away as not being required on
22       9th January, leaving him and Thurley to
23       carry out a limited examination.  He
24       began an examination for prints around
25       the porch area and Thurley carried out an
page  74
 1       examination for prints around the
 2       bathroom area including the doorframe.
 3       Though fingerprints were found that day
 4       they were not recorded on Marks Worksheet
 5       31 until 10th January.  He says that at
 6       about 4.00, pm after the death was
 7       confirmed as a murder, he and Thurley
 8       were instructed to stop what they were
 9       doing and seize the bannister, a section
10       of carpet and the bathroom door.  He
11       believes the reason for this was that
12       forensics had not carried out any
13       examination.
14         The forensic protocol requires the
15       forensic examination to take place before
16       a fingerprint examination and it seemed
17       to him that "things were working
18       backwards".  The correct procedures were
19       not being followed.
20         He said this would not have affected
21       the fingerprinting but may have had a
22       consequence for the forensic examination.
23       He expresses himself surprised that
24       Thurley had decided to use aluminium
25       powder for the fingerprinting.  He says
page  75
 1       that he did not express concern at the
 2       time because he was a junior examiner.
 3       In his e-mail he wrote that he had
 4       disagreed with the use of aluminium
 5       powder at the time and that had black
 6       powder been used from the outset "the
 7       whole sorry affair" would never have
 8       happened.
 9         Turning to Mr Thurley's evidence, he
10       attended the house on 9th January and it
11       was decided he would remain at the house
12       with Mr Ferguson.  Initially the death
13       was being treated as suspicious but the
14       scene would have been protected in the
15       same way as a murder.  He found out later
16       that day it was a confirmed murder.  At
17       about 4.00 pm he was contacted by the lab
18       and asked to stop his examination and to
19       take possession of the bannister.  He
20       also seized the bathroom door and a
21       section of carpet nearby.  It was not
22       until 6th March 1997 that he removed the
23       doorframe to preserve Y7.  He did not
24       begin his fingerprinting until the
25       forensic scientists told him that they
page  76
 1       had completed their examination.  The
 2       Inquiry has his contemporaneous
 3       manuscript narrative of the progress of
 4       the scenes of crime examination of the
 5       house, which records that Y7 was not
 6       found until 14th January when Mr Thurley
 7       was not in attendance.  He refers to Home
 8       Office guidance related in the sequence
 9       of powders to be used in fingerprinting
10       and defends the decision to begin with
11       aluminium powder as the powder most
12       commonly used first and in any event
13       yielding fingerprints in this case.
14         He was not present on 14th January when
15       black powder was used, but says that it
16       was not uncommon to re-examine surfaces
17       with black powder.  He says that the
18       doorframe would have been covered in
19       aluminium powder.  He saw Y7 at some
20       stage and says that it would have been
21       difficult to tell if the aluminium powder
22       had been disturbed.
23         Mr Moffat confirms that Mr Thurley told
24       Scene of Crime Officers that he wanted
25       them to use aluminium powder, though he
page  77
 1       did use black powder on some surfaces.
 2         Detective Constable James Kerr says
 3       that he had some training on obtaining
 4       fingerprint evidence but was not an
 5       expert.  He would have expected black
 6       (not aluminium) powder to have been used.
 7       He reports heated debate instigated by
 8       Moffat about this.
 9         Chief Inspector Hogg says there was no
10       formal protocol regulating the use of
11       aluminium powder, as opposed to black
12       powder.  He presents it as essentially a
13       judgment for individual officers.  He
14       thinks the decision to start with
15       aluminium powder was reasonable.  He says
16       that he was aware of black powder
17       improving the quality of a mark partially
18       revealed by aluminium powder but before
19       the Marion Ross case he had not been
20       aware of a case in which a fingerprint
21       was detected using black powder where
22       aluminium had totally missed it.  His
23       initial thought was that the print had
24       been left after the aluminium powder had
25       been applied but he refers to fingerprint
page  78
 1       marks of the deceased also being found
 2       which suggests that there were
 3       fingerprint marks on the doorframe which
 4       had not been fully revealed using
 5       aluminium powder.  Some experiments were
 6       carried out at the Strathclyde Police
 7       Forensic Laboratory to see whether Y7 had
 8       been left after the aluminium powder had
 9       been applied.  They found that the
10       particles of the two powders simply
11       merged and did not sit one on top of the
12       other.
13         The significance of the detail
14       concerning the SOCOs examination of the
15       house for fingerprints lies in the fact
16       that the mark Y7 was found on the second
17       examination of the doorframe when black
18       powder was used on 14th January 1997 and
19       was not discovered during the first
20       examination with aluminium powder on
21       9th January 1997.  That bare detail,
22       stripped of any other complication, might
23       suggest that the mark was deposited
24       between the two dates.  Given that the
25       house was under police guard, again this
page  79
 1       bare fact would point to Y7 being the
 2       mark of someone involved in the
 3       investigation.  There are, however, a
 4       number of significant complications
 5       relating to this theory, not least being
 6       that fingerprints of Miss Ross were also
 7       discovered on 14th January.  The Inquiry
 8       will look at the manner in which the
 9       crime scene examination was carried out
10       and some of the SOCOs will be called to
11       give evidence at the start of the public
12       hearing.
13         As for Ms McKie, she was then known as
14       Detective Constable Cardwell, had been
15       seconded to a new staff appraisal system
16       but was not required for that work over
17       the festive period.  She was temporarily
18       assigned to the Ross Murder Inquiry and
19       paired up with Detective Sergeant
20       Shields.  She remained part of the
21       Inquiry team until 14th January 1997.
22         Mr McAllister took the decision to
23       return Ms McKie to divisional duties and
24       the decision was taken for operational
25       and not personal reasons.
page  80
 1         On 9th January an action was raised
 2       instructing Detective Constable Cardwell
 3       and Detective Sergeant William Shields to
 4       go to the house with Mr Kinnaird in order
 5       to check which door had been locked when
 6       he went to the house and discovered the
 7       body.  The HOLMES record records that the
 8       keys were uplifted at 17.40 but returned
 9       at 17.50.
10         Mr McAllister confirms that he gave
11       this instruction and that it was
12       countermanded by Mr Heath.
13         Mr Heath says that Detective Sergeant
14       Shields asked if they could go into the
15       house or take Mr Kinnaird in.  Detective
16       Chief Inspector Heath did not want
17       Mr Kinnaird to be taken back to the scene
18       because of the risk of contamination.
19       Detective Chief Inspector Heath said no
20       to the request.
21         There are what bear to be three
22       contemporaneous police statements for
23       Ms McKie: one on 17th January, one on
24       21st January and one on 14th February,
25       all 1997.  Two of those statements
page  81
 1       (17th January and 14th February) deal
 2       with the visit to the house on
 3       9th January.  They record that Ms McKie
 4       and Detective Sergeant Shields
 5       interviewed Mr Kinnaird at his own home.
 6       After the interview they attended at the
 7       house at 19.45.  In the statement of
 8       17th January it is said that Ms McKie
 9       entered the porch area "in order to
10       clearly establish the doors referred to
11       by the witness."  She touched no surfaces
12       within the house.
13         In her statement of 14th February she
14       says that she stood on the metal plates,
15       with Detective Sergeant Shields standing
16       on one in front of her.  Ms McKie,
17       however, says that she did not write the
18       statement of 17th January and that it is
19       in the handwriting of Detective Sergeant
20       Shields.  She had not seen the document
21       before.
22         Ms McKie has provided a statement to
23       the Inquiry.  She generally adopts a
24       previous statement 28th July 2000.  She
25       accepts that it was made clear at
page  82
 1       briefings that attendance at the locus
 2       was by specific instruction only.  She
 3       cannot now remember much about the
 4       cancelled instruction to check the doors
 5       and keys with Mr Kinnaird.  However, she
 6       gives her recollection of attending the
 7       house on 9th January with Detective
 8       Sergeant Shields to gain a better
 9       understanding of Mr Kinnaird's
10       explanation as to which doors he found
11       locked and which he found unlocked.  They
12       only went as far as the porch and stood
13       on the metal foot plates.
14         The log records them as having entered
15       the porch only, and as leaving at
16       19.47 hours.  PC Stirling, who was
17       keeping the log at the, time erroneously
18       made an entry for "Cadwell" rather than
19       "Cardwell".
20         The HOLMES record recovered in
21       Operation Alba does not disclose the
22       allocation or cancellation of the
23       particular action relating to
24       reconstruction of unlocking the doors
25       with Mr Kinnaird.  It may be, however,
page  83
 1       that the computerised HOLMES system was
 2       not fully in operation at this point on
 3       9th January.  The Inquiry has one
 4       document which seems to relate to this
 5       action and it refers to a "manual system
 6       action queue" on 10th January, which may
 7       mean that the action was originally one
 8       recorded on the manual system.
 9         Mr Heath recalls (but cannot be sure)
10       that on another occasion over the next
11       few days Detective Sergeant Shields made
12       a request to visit the locus again.  If
13       made, it would have been met with a
14       negative response.  In his Crown
15       precognition, Detective Chief Inspector
16       Heath seems to indicate that this would
17       have occurred after the request to
18       Detective Constable Kerr (which seems to
19       have been on 11th January, the Saturday).
20       It is not clear why he thinks events took
21       place in that order.  Detective Chief
22       Inspector Heath's account at precognition
23       was that he simply said "no".  In his
24       statement to Operation Alba, DCI Heath
25       states that he cannot recall the full
page  84
 1       terms of the conversation, but that he
 2       told Detective Sergeant Shields that the
 3       Identification Bureau Officers had not
 4       completed their examination, and that
 5       no-one should go in.
 6         Ms McKie also recollects that at some
 7       stage Detective Sergeant Shields asked
 8       Mr Heath for permission to visit the
 9       locus which was refused.  She was not
10       present when the request was made.
11         Unless the mark Y7 had been transferred
12       by some means, the proposition that Y7 is
13       the fingerprint of Ms McKie necessarily
14       implies that she entered the house at
15       least as far as the bathroom.  She has
16       always denied this and the possibility
17       that she could have gained access to the
18       bathroom has been the subject of close
19       scrutiny and a number of previous
20       investigations with negative results.
21       These investigations have covered her
22       possession of the keys to the house for
23       brief periods.  Miss Ross' house was not
24       far from the police station, and could
25       have been reached by car within a very
page  85
 1       short time.  However, the relevance of
 2       the keys is not obvious, on the basis
 3       that the door was always unlocked but a
 4       log keeper on duty.
 5         Ms McKie was questioned about access to
 6       the keys in her statement to Detective
 7       Superintendent Malcolm dated 31st
 8       March 1997.  PC Allan Stevens was one of
 9       the production officers.  He is the
10       person Ms McKie asked to give her the
11       keys to the house on 9th January.  Though
12       Mr Stevens may have some recollection
13       today of what Ms McKie said to him, that
14       is inconsistent with his previous
15       statements and in the result he cannot
16       remember what was said to him.
17         A statement is to be taken from
18       Detective Sergeant Shields.
19         Turning to 10th January, the Friday.
20       On Friday, 10th January, Mr Thurley and
21       Mr Ferguson continued to examine the
22       scene.  They were joined by Moffat,
23       Wilson and Hunter.  The examination of
24       the scene carried on during 11th, 12th
25       and 13th.
page  86
 1         Also on Friday, 10th January, PC Lupton
 2       and DC Glass took post-mortem
 3       fingerprints from Marion Ross at Glasgow
 4       City Mortuary.  Lupton delivered a
 5       laminated form at the Scottish Criminal
 6       Records Office.
 7         On 11th January Mr Heath has produced
 8       event files showing the key
 9       developments down to 11th January.
10         The events of this day have been the
11       subject of close scrutiny on a number of
12       occasions because the log may be
13       incomplete and there had been a
14       persisting rumour that PC Mark Lees may
15       have permitted Ms McKie access to the
16       house.
17         Inspector Thomson provided a statement
18       for Operation Alba in which he states on
19       11th January at about 5.00 pm he issued
20       an instruction to Detective Sergeant
21       Shields (who was working with Ms McKie)
22       to uplift the log so that it could be
23       photocopied and the entries include on
24       HOLMES and then return the log.
25         Ms McKie deals with this in her
page  87
 1       statement of 14th February 1997.  On her
 2       own account she went to the house at
 3       17.45 with DS Shields.  Shields remained
 4       in the car.  She got the log from PC Mark
 5       Lees who was within the porch.  She was
 6       in the house only a matter of seconds and
 7       only entered the porch.  She took the log
 8       back to the police station, photocopied
 9       it and returned to the house with DS
10       Shields.  She gave the log back to PC
11       Lees and again was only in the porch and
12       that for a matter of seconds.
13         PC Lees carried out log keeping duties
14       on 10th, 11th and 18th January.  On
15       11th January he is noted in the log as
16       having been on duty from 13.55 to 23.00.
17         Ms McKie and PC Lees are in agreement
18       that Ms McKie did uplift and return the
19       log that day but her attendance at the
20       locus is not recorded in the log book.
21       That is not the only suggested error in
22       the log for that day.  The log records DC
23       James Kerr as having left at 13.15 and
24       there is no record of him returning that
25       day.  However, he says that he worked
page  88
 1       there that afternoon.  On reflection he
 2       thinks that he may have used the rear
 3       French doors for easier access to the
 4       equipment room.
 5         In addition to providing a statement to
 6       the Inquiry, PC Lees has provided the
 7       following statements: on
 8       14th February 1997, 11th March 1997, and
 9       a statement to Operation Alba on 31st
10       July 2000.  In his Inquiry statement PC
11       Lees says that he is aware of the rumours
12       concerning him and they are untrue.  He
13       did not let Ms McKie into the house.
14       Ms McKie did collect and return the log
15       on 11th January.  On neither occasion did
16       she enter the porch.  His interpretation
17       of entry "into the locus" is passing
18       beyond the threshold at the outer door at
19       the front of the porch.  When she arrived
20       to collect the log, he asked her if she
21       was coming into the porch but she said
22       words to the effect that could not
23       because of the risk of
24       cross-contamination.  He did not log this
25       attendance because she had not crossed
page  89
 1       the threshold in to the porch and the
 2       same applies to her attendance when
 3       returning the log.
 4         He cannot remember the time of this
 5       event and is not aided by prior
 6       statements.  Asked about DC Kerr, PC Lees
 7       notes that there is no entry in the log
 8       recording his presence at the locus when
 9       Lees was on duty and he says that he did
10       not see Kerr while he (Lees) was at the
11       locus.
12         DC Kerr has similarly provided a number
13       of prior statements: an account of his
14       evidence during HMM against McKie is
15       given in Mr Carle's summary of that
16       trial.  Other than some variation as to
17       whether the events in question occurred
18       on 10th or 11th January, the content of
19       his evidence in his Inquiry statement is
20       consistent with these prior statements.
21         DC Kerr's statement to the Inquiry says
22       that on the morning of 11th January
23       Ms McKie asked him if she could look
24       around the house.  He says that he told
25       her Mr Heath's instruction that no-one
page  90
 1       was to go into the house and suggested
 2       she speak to DCI Heath if she felt
 3       strongly about the matter.  In his prior
 4       statements, there has been some
 5       uncertainty whether this occurred on 10th
 6       or 11th January.  In his Inquiry
 7       statement he expresses himself certain
 8       that the conversation took place on 11th
 9       January.
10         He saw her later that afternoon at the
11       house, standing in the porch (ie, the
12       entry vestibule) with the log keeper but
13       he did not see her enter the house.  He
14       says that the radio was on but the
15       football had not yet begun.  He is not
16       now clear about the time.  He believes he
17       left around 6.00 pm.  He believes that he
18       saw her between 2.30 and 3.00.  He thinks
19       that it was closer to 3.00 but it would
20       have been nearer 5.30.  He later learned
21       that she had been delegated the task of
22       copying the log.  DC Kerr says that he
23       and PC McIntyre had agreed to take
24       alternate weekend days off and that he
25       (Kerr) was on duty on Saturday and
page  91
 1       McIntyre on Sunday.  Kerr says that he
 2       went to the high street to get shoe boxes
 3       which he used to store door handles taken
 4       from the locus.
 5         PC McIntyre says that he was at the
 6       locus on 11th January and says that he is
 7       100 per cent sure that shoe boxes were
 8       not used to store productions.  He did
 9       not see Ms McKie at the house at any time
10       from 9th to 14th January 1997.
11         Ms McKie's evidence is that she has no
12       recollection of asking DC Kerr for
13       permission to enter the house.  It was
14       not his decision to take.  She attended
15       the house on 11th January at 5.45 pm to
16       collect the log and returned it.  The log
17       keeper was Mark Lees.  Detective Sergeant
18       Shields remained in the car.  Ms McKie
19       stepped in to the porch on both occasions
20       but did not go further than the porch.
21         Turning to 12th January, that is the
22       Sunday, on Sunday 12th January Ms McKie
23       again uplifted the keys from the
24       production officer but returned them
25       shortly afterwards.  Her explanation for
page  92
 1       this is, again, that her instructions
 2       were cancelled.  The Inquiry has the
 3       HOLMES printout confirming movements of
 4       the keys and records that the keys were
 5       taken out 10.45 am and returned at 11.00
 6       am.
 7         The Inquiry also has the HOLMES record
 8       for this action.  It appears to have been
 9       allocated to DC Swann at 6.31 pm on 11th.
10       It is not clear why Ms McKie ended up
11       uplifting the keys.  Was she working with
12       DC Swann at the time?  HOLMES records the
13       action as having been changed to "for
14       referral" on instructions of the Senior
15       Investigating Officer that is DCI Heath
16       at 11.02 on 12th January, which is
17       consistent with the timing of the return
18       of the keys.
19         PC Stevens confirms that the keys were
20       given to Ms McKie and returned by her
21       shortly afterwards, consistent with her
22       instruction having been cancelled.
23         Ms McKie now has no recollection of
24       this episode.
25         On 13th January, Mr Heath attended a
page  93
 1       meeting with IB, SCRO and lab staff.
 2       Mr Macpherson has manuscript notes that
 3       may relate to this meeting.
 4         Mr McAllister is able to specify who
 5       attended this meeting under reference to
 6       CO1403.  It was a liaison meeting to
 7       check progress.
 8         Dealing specifically with Ms McKie's
 9       rumoured access to the locus, Les Brown
10       e-mailed the Inquiry team with an
11       accusation directed against PC Lees.  He
12       has provided a statement and named a
13       number of sources of information supplied
14       to him.  The Inquiry team has pursued
15       some of these lines of inquiry and where
16       the individuals in question have been
17       interviewed by the Inquiry team they will
18       be named in this analysis.  There are
19       other individuals named by Mr Brown whose
20       information appears to the Inquiry team
21       not to merit further investigation and
22       they have, accordingly, not been
23       interviewed.  In fairness to these
24       individuals, because they have not had an
25       opportunity to comment, this analysis
page  94
 1       omits reference to them by name.
 2         This is a summary of what Mr Brown has
 3       said to the Inquiry.
 4         He is a retired Detective Chief
 5       Inspector with Strathclyde Police.  He
 6       says in March 2006 he was contacted by a
 7       reporter (who he names but from whom the
 8       Inquiry has not taken a statement)  And
 9       asked if he would be prepared to help
10       some people from SCRO.  He met Fiona
11       McBride and Mr Geddes.
12         He says he agreed to help on the basis
13       that he would investigate the murder of
14       Miss Ross.  He has received information
15       anonymously from police officers.  At the
16       first meeting he says that the reporter
17       told him that it was well known in the
18       media that Ms McKie had had a romantic
19       liaison at the house.  He has spoken to
20       Mr Swann about his involvement.  He has
21       also unsuccessfully sought to speak to
22       Mr Herbert Kerrigan, QC (who at one point
23       was instructed on behalf of Ms McKie in
24       relation to the perjury case).  He spoke
25       to Mr Kinnaird and learned that there was
page  95
 1       a 15-hour delay before the police
 2       declared a murder inquiry.  He is
 3       surprised by this.  He has unsuccessfully
 4       tried to speak to Mr Heath.
 5         He has interviewed Detective Sergeant
 6       Shields and accepts that there was no
 7       romantic link with him.
 8         He says that he understands that three
 9       weeks after Ms McKie and Shields were
10       split up as a team, DI McAllister phoned
11       SCRO and asked that Ms McKie's prints be
12       compared against all outstanding
13       fingerprints.  He also says that another
14       named individual (from whom the Inquiry
15       has not taken a statement) has told him
16       that DI McAllister knew that Ms McKie had
17       been in the house.  He has unsuccessfully
18       applied to speak to Mr McAllister.  He
19       has made inquiries specific to PC Lees.
20       He has unsuccessfully tried to interview
21       PC Lees.  He says that a SOCO officer,
22       Kerr, has told him that he heard Lees and
23       McKie having a heated discussion in the
24       porch during the course of which Ms McKie
25       used the word "contamination".  The SOCO
page  96
 1       was dismantling door handles and the date
 2       was around 13th January 1997.  He also
 3       spoke to PC Kerr Reid who told him of a
 4       conversation with a Kilmarnock police
 5       officer who said that he had let Ms McKie
 6       into the house because he fancied her and
 7       who told Reid:
 8         "That bitch will get us done.  It was
 9       me that let her into the house."
10         Despite checking, Brown has been unable
11       to ascertain who was on duty with Reid.
12       He has been told that during the perjury
13       trial Lees and McKie were seeing arguing
14       ferociously in the car park and he says
15       that this may have been about the
16       contradiction in their evidence regarding
17       the presence of Ms McKie in the porch.
18       He was told by SCRO fingerprint officers
19       about a conversation between Colette
20       McKay and PC Morgan.  He interviewed
21       Morgan who told him that he had been
22       trying to impress McKay and was making
23       out that he knew more than he did.  The
24       person he had in mind was Lees but that
25       was based on rumour.  He has spoken to
page  97
 1       Mr Carle about his conversation with PC
 2       Lees.  After he was unsuccessful in his
 3       attempt to interview PC Lees, he
 4       complained to the Assistant Chief
 5       Constable of Strathclyde Police and this
 6       led to an investigation by Nicolson and
 7       Mitchell.  He says that he was told
 8       anonymously that a person named by him
 9       (again from whom the Inquiry has not
10       taken a statement) had been saying that a
11       Kilmarnock police officer had all the
12       answers.  He makes an allegation that Ms
13       McKie committed perjury at the perjury
14       trial.  (It must be stressed that this is
15       an allegation made by Mr Brown and that
16       Counsel to the Inquiry has reached no
17       conclusion in relation to that.)
18           Ms McKie says that the rumours that PC Lees allowed
19       her access to the house beyond the porch are untrue.
20       She also says that she had no contact with PC Lees
21       during her trial.  She has provided a written statement
22       appended to her Inquiry statement responding to the
23       allegation that she gave perjured evidence at the
24       perjury trial regarding knowledge of other experts
25       having advised in relation to Y7.
page  98
 1           Kerr Reid has provided a statement.  He has
 2       confirmed that while on duty at the High Court in
 3       Paisley he was party to a conversation with a second
 4       (unnamed) officer from U Division who said that "his
 5       neighbour" (a third officer also unnamed) had let
 6       Ms McKie into the house and the officer may also have
 7       said that the neighbour had a wee thing for Ms McKie.
 8       He denies that the officer made the specific statement
 9       recounted by Brown.  Colette McKay says that in 2004 or
10       2005 a probationary officer, Officer Morgan, told her
11       that she worked with a guy in Stewarton who had let
12       Ms McKie into the house and who now feels bad for what
13       happened to the four experts.  She told McKenna or
14       Macpherson about this conversation.
15           PC Alistair Morgan has provided a statement.  He did
16       attend SCRO as a probationer officer and did speak to a
17       female member of staff.  However, he says that he did
18       not discuss the McKie case.  He also says that he has no
19       knowledge of any officer allowing Ms McKie entry to the
20       house.
21           Statements have also been taken from Detective Chief
22       Superintendent Nicolson and Detective Superintendent
23       Mitchell.  They confirm that they did investigate
24       Mr Brown's allegations in February/March 2007.  They
25       spoke to Kerr Reid at the time.  He confirmed that he
page  99
 1       had had a conversation with a young police officer in
 2       Paisley High Court, the conversation being of a general
 3       nature.  Mr Mitchell tried to identify the young officer
 4       through police records but the relevant records had been
 5       destroyed by the time of his Inquiry.  Mr Mitchell also
 6       interviewed Colette McKay of SCRO who reported that PC
 7       Morgan had told her that she worked with someone at
 8       Stewarton who had allegedly allowed Ms McKie into the
 9       house.  Mr Mitchell interviewed Mr Morgan but he denied
10       the conversation.
11           Mr Mitchell refers to PC Lees having been
12       interviewed in the past but nothing that Mr Mitchell
13       discovered in his inquiry would have allowed him to go
14       back and question him.  He also mentioned that PC Morgan
15       was interviewed by the complaints and disciplinary team
16       on 8th December 2006.
17           A statement has also been taken from Chief Inspector
18       Carle.  He became an inspector in November 1998 based at
19       Kilmarnock.  He acted as a police observer both at the
20       Asbury and McKie trials.  Before the McKie trial PC Lees
21       approached him for advice.  PC Lees told him the trial
22       was approaching and that there was gossip that he had
23       let Ms McKie into the house.  PC Lees said that he had
24       not let her into the house and there was no hint of
25       uncertainty.  Mr Carle reminded him that he would be
page 100
 1       giving evidence under oath and that he had to be
 2       truthful and forthright.  Mr Carle's notes of the trial
 3       are available to the Inquiry.  At paragraph 33.12 he
 4       notes that PC Lees appeared uncomfortable while giving
 5       evidence-in-chief.
 6           The issues that emerged from that analysis of
 7       chapter 2 are whether Mr Moffat gave accounts to DI
 8       McAllister that he thought that Y7 was the mark of Gary
 9       Gray; whether J7 is the mark of Gary Gray; whether the
10       fingerprint investigation was in any way impeded by the
11       fact that designation as a murder inquiry only took
12       place after the post-mortem examination; whether any
13       significance can properly be attached to the fact that
14       Y7 was disclosed by black powder but not by aluminium
15       powder; and whether there was any substance to the
16       rumours concerning the alleged access of Ms McKie to 43
17       Irvine Road, Kilmarnock, beyond the porch.
18           I have then given a list of witnesses who will be
19       called in that regard.  I will not take up time reading
20       out that.
21   THE CHAIRMAN:  We will stop now until 1.50.
22   (1.00 pm)
23                      (Luncheon Adjournment)
24   (1.50 pm)
25   MR MOYNIHAN:  I am now going to turn to chapter 3 to deal
page 101
 1       with marks XF, QD2 and QI2 and as part of that narrative
 2       that deals with the detention of Mr Asbury.
 3           XF and the location of the Christmas gift.  Mark XF
 4       was found on a tag attached to a Christmas present.  The
 5       present on which this gift tag was found is shown in one
 6       of the photographs on a coffee table.  The photograph
 7       was taken by Mr Moffat.  From Mr Moffat's statement
 8       there is a possibility that it had been moved to this
 9       position to allow for a better photograph.  He has a
10       vague recollection of the package being on a wooden unit
11       in a back room.  He says that the original location of
12       the gift should be shown on the video.
13           It is possible that the coffee table on which the
14       gift was photographed is to be seen in another
15       photograph but the quality of that photograph shown to
16       Mr Moffat was too poor for him to comment.
17           The Inquiry has the video taken by Mr Moffat.  It
18       will be shown to him to clarify where the gift was
19       originally located.
20           Mr McAllister speaks of the gift being found on a
21       settee.
22           The finding of the mark XF.  On 13th January 1997
23       the SOCOs Gibbens and MacNeil discovered mark XF on the
24       gift tag.  MacNeil has provided a statement.  He says
25       that the work was done by Gibbens with MacNeil
page 102
 1       corroborating.  To the best of his recollection Gibbens
 2       used black magna powder, found the mark and marked it up
 3       with a label.  MacNeil took the photographs of the gift
 4       set, production 16.  He is uncertain who took the
 5       photograph of the mark though he thinks that they were
 6       taken by Gibbens.
 7           Dealing with the identification of XF by the
 8       fingerprint officers, at some stage it seems to have
 9       been conveyed to SCRO that the Christmas present on
10       which the gift tag was found was of interest to the
11       police.  A piece of paper within the SCRO case envelope
12       number 7 contains a scribbled note that reads
13       "Apparently current Xmas present??"  Mr Macpherson
14       accepts that he would note such information because it
15       would help him to build up a picture to prioritise his
16       work.  On 21st January 1997 a mark found on the gift tag
17       was identified as that of David Asbury.  The photograph
18       used by SCRO is available to the Inquiry.
19           The Inquiry has the original of the photograph of
20       the Christmas gift tag on which the SCRO fingerprint
21       officers made markings relative to the identification.
22           Perhaps if we could bring up CO1987, please, that
23       fingerprint.  If we could display front and back at the
24       same time if possible.
25           The front of the photograph bears the initials HM,
page 103
 1       AG, AMcK and a further illegible initial, which
 2       according to Ms McBride, is that of Mr Padden.  Above
 3       the initials the word "screen" is written indicating
 4       (according to Mr Geddes) that the comparator has been
 5       used.  Mr Macpherson agrees that that is what the word
 6       signifies.  The photograph bears a note in black that
 7       the mark was eliminated as that of David Asbury.  This
 8       has been crossed out, and, in red ink, it has been noted
 9       that David Asbury was identified.  This reflects
10       Mr Asbury's change in status when he became an accused
11       person.
12           Mr Padden has no recollection of dealing with the
13       mark XF.  He accepts that the initials on the
14       photograph may be his, though not exactly the same as
15       the current appearance of his initials.  His reason for
16       lack of recollection of any involvement is that at the
17       time it was not unusual for staff to examine an
18       impression on the comparator.
19           On the back of the photograph Mr Macpherson wrote:
20           "DC Kirkland informed of ident info being passed on
21       to DI McAllister.  Impression overleaf checked against
22       current form OK.  Reversal requested from IB."
23           Mr Macpherson explains that the stickers on the
24       photograph indicate that it was searched on AFR, that's
25       the fingerprint database.  He is not sure why image
page 104
 1       reversal was requested.  We have the reversal image.
 2           SCRO worksheet BY31 bears an entry by Mr Macpherson
 3       in relation to XF.  Again, it is recorded in black ink
 4       that the mark is eliminated as Mr Asbury's and then is
 5       overwritten in red to show that it was identified as
 6       David Asbury's.  There is, however, nothing on the SCRO
 7       worksheet "elimination page 2", the elimination sheet on
 8       which XF, was listed, to indicate that it was checked.
 9           Mr Macpherson says that it was his practice to go
10       back and write on the photograph when the print was
11       identified.  He has been asked about the absence of any
12       record of this identification on the elimination sheet
13       BY6.
14           He says that his initial statement erroneously
15       contains a reference to elimination sheet 4 and not to
16       elimination page 2 as a document that would record the
17       examination of XF.  Assuming that that is just a
18       clerical error his explanation for the absence of an
19       entry on the elimination sheet corresponding to the
20       examination of XF is that once the mark had been
21       identified and marked by four experts, there would be
22       need to complete that sheet.
23           His supplementary statement addresses the correct
24       document and he explains that XF had been compared
25       against a number of other individuals before being
page 105
 1       identified as Mr Asbury.  It would have been superfluous
 2       to record the finding on BY6 given that it was recorded
 3       on BY31 and the photograph.
 4           Mr Macpherson says that he compared XF initially
 5       against the Asbury elimination print form, had it
 6       checked by other experts and then phoned out the result.
 7       He says that after the arrest he probably double checked
 8       the comparison using the fingerprint form taken on
 9       arrest.
10           Mr Geddes says only that the photo of XF records his
11       initials and that the word "screen" shows that it had
12       been done on a comparator.
13           Mr McKenna was involved in the identification of XF.
14       His initials are on the image and the word "screen"
15       means that he examined it on the comparator.  The image
16       bears an entry, "Charge form OK".  The charge form would
17       have had to be checked against the image when the report
18       was being prepared and the four experts would have to be
19       satisfied with the identification using the charge form.
20       A reversal would have been ordered to have the mark in
21       correct colour sequence.
22           Dealing now with the detention and arrest of
23       Mr Asbury and his first appearance at court.
24       Mr Asbury's grandfather Nimrod Asbury had a building
25       firm that had built the extension to Miss Ross' house.
page 106
 1       The murder inquiry team had known from 14th January 1997
 2       that Nimrod Asbury's grandson had been reported missing.
 3       An event file records that this had come to light as
 4       part of Inquiry by Detective Sergeant Shields relating
 5       to the construction of the extension to Miss Ross'
 6       house.  As part of that Inquiry Sergeant Shields and
 7       Ms McKie attended David Asbury's house and found £1,795
 8       in a jar in his room.
 9           Ms McKie deals with this in her handwritten police
10       statement dated 21st January and in her Inquiry
11       statement from paragraph 47 to 53.  She says that when
12       they found the money in the tin they did not count it
13       exactly but only made a rough estimate relative to the
14       bundles.
15           Mr Asbury returned home on 14th January and was
16       interviewed by police and a statement taken from him on
17       the 16th.  At that stage his fingerprints were taken for
18       the purposes of elimination.
19           Mr Heath says that he probably became aware of David
20       Asbury for the first time at a briefing on 14th January.
21       At 2.00 pm on the 21st DC Kirkland told him of the
22       identification of mark XF as David Asbury's.  Mr Heath
23       regarded this as an important development.  At this
24       point dating the gift became a focus of the Inquiry.
25       David Asbury was now a "TIE suspect", that is to say a
page 107
 1       suspect required to be traced, interviewed, and
 2       eliminated.
 3           On 21st January Chief Inspector Heath met staff at
 4       the Fiscal's office, John McLellan and John McMeneny.
 5       He also prepared a report to the Procurator Fiscal
 6       requesting a warrant to search David Asbury's home.  The
 7       warrant was granted that day.
 8           Mr McAllister's evidence.  He explains that the
 9       Christmas gift was an item of significance to the
10       police.  The identification of the mark would have been
11       communicated by him to SCRO and he described it as "a
12       very meaningful identification" to which he attached
13       great significance.  He discussed it with Mr Heath and
14       it was enough to consider David Asbury a suspect.
15           On 22nd January Asbury was detained under section 14
16       of the Criminal Procedure (Scotland) Act 1995 and his
17       house was searched.
18           A number of police officers attended David Asbury's
19       home to carry out the search.  Geraldine Davidson, a
20       Forensic Biologist, attended to provide scientific
21       support in case any blood stains should be found.
22       Police Constable John Greer video recorded the search.
23       The Marks & Spencer's tin containing money was
24       recovered, sealed and labelled and taken to Kilmarnock
25       Police Station.  It was found to contain £2,240 in
page 108
 1       notes, that is £445 more than when first examined by
 2       Ms McKie and Sergeant Shields on 14th January.
 3            Mr Asbury was taken to a police station for
 4       interview.  At interview he denied being within the
 5       house of the deceased since the renovation work was
 6       undertaken.  He, accordingly, advanced no explanation
 7       for his fingerprint being found on the gift tag.  He
 8       also delayed for 38 seconds before replying in the
 9       negative to the direct question whether or not he
10       murdered Miss Ross.  At the conclusion of the interview
11       Mr Heath instructed the interviewers (Shield and
12       Ferguson) to arrest David Asbury and charge him with
13       murder.
14           While his arrest prints were being taken, he started
15       to make a voluntary statement admitting having been in
16       the house to use the phone when his car broke down two
17       or three days before the murder.  Mr Heath arranged for
18       officers previously unconnected with the inquiry to be
19       brought in and his voluntary statement was tape recorded
20       in their presence.  This was to the effect that he had
21       called at the house of the deceased because his car had
22       broken down and he wanted to call his mother.  He then
23       said that he had realised that the car had run out of
24       petrol and had therefore not placed the call.  He said
25       that the deceased had shown him around the house and
page 109
 1       that he had used the toilet and then left.  On a point
 2       of detail, there seems to have been some discrepancy
 3       between the taped interview and DI
 4       McDonald's handwritten record of the voluntary
 5       statement.  Reference was made to a note by the Advocate
 6       Depute to the Lord Advocate regarding this.
 7           On 23rd January David Asbury appeared on petition at
 8       Kilmarnock Sheriff Court and was remanded in custody for
 9       further examination.
10           Turning to the Christmas gift tag, the police
11       inquiries indicated that David Asbury could not have
12       placed the mark on the tag during the time he worked at
13       the house in 1995.  The Narrative of Facts in the
14       precognition for HMA v Asbury summarises the evidence in
15       this regard.
16           The gift was a wrapped boxed set of soap.  Although
17       the tag was of a type that had been on sale for
18       Christmas 1995 and 1996, a receipt was found in
19       Miss Ross' house indicating a purchase of gift tags and
20       wrapping paper on 18th November 1996.  The boxed set of
21       soap was of a type not manufactured before 1996.
22           The police summary is dated 22nd January 1997 and
23       Mr Heath says that it was given to the Procurator Fiscal
24       on 23rd January.  It records the evidence that the
25       police then had against Mr Asbury.  It also indicated
page 110
 1       that the police were following a positive line of
 2       Inquiry regarding the possibility that the money, and
 3       perhaps also the tin, had been taken from the deceased.
 4       The police summary states that: "the £2,240 recovered in
 5       the bedroom of the accused on 22nd January 1997 will be
 6       examined for blood and the fingerprints of the
 7       deceased."
 8           This is reinforced by examination of the HOLMES
 9       event file.  The entry for 23rd January includes the
10       following:
11           "The money found in his house with the clothing and
12       the footwear to be a priority for examination.
13       Financial profile of Asbury required ASAP.  The sweet
14       jar/tin found in the house containing money from
15       Marks & Spencers to be fingerprinted."
16           On Thursday 23rd January, Lupton and PC Donald
17       MacKay took further impressions from the deceased in
18       order to obtain prints of the flexure areas between the
19       fingers and palms.  Mr Macpherson explains that the
20       fingerprints were retaken in connection with his
21       investigation of a horseshoe shape on a chair in
22       Miss Ross' house.
23           The Inquiry has a copy of a register showing receipt
24       at the forensic laboratory of "cash contained in tin".
25       The date of receipt is not clear from this document.
page 111
 1       However, the Inquiry also has a laboratory receipt dated
 2       the 23rd relating to "£2,240 cash contained in
 3       Marks & Spencers tin".  There's a further document date
 4       stamped, 27th January, by the Strathclyde Police
 5       Forensic Laboratory, and it includes in the list of
 6       articles submitted "£2,240 cash in Marks & Spencers
 7       tin".
 8           On Friday 24th January Geraldine Davidson examined
 9       the Marks & Spencers tin at the Strathclyde
10       Forensic Science Laboratory.  She examined it visually
11       for blood staining, and did not find any.  She did not
12       carry out chemical tests because it was intended
13       to examine the tin for fingerprints.
14           Mr MacNeil says that the cash (and presumably the
15       tin) were handed to the identification branch on 24th
16       January and he signed for them.  The IB had the cash and
17       tin until 27th January until their work was completed.
18           SCRO case envelope vii contains the following note
19       written by Charles Stewart to Hugh Macpherson.  It
20       reads:
21           "DI McAllister was in on Saturday.  He did not know
22       about other mark eliminated, he is getting elims for the
23       two plumbers who installed the shower, et cetera.  Told
24       him marks (if any) from money not with us yet.  Sunday
25       Stevie Heath brought in accused tin print number 3.30.1
page 112
 1       and elims."
 2           That's the end of the note.
 3           The Saturday would have been 25th January and the
 4       Sunday would have been the 26th.  Mr Heath confirms that
 5       McAllister had been in to SCRO on the 25th and that he
 6       visited on the Sunday.
 7           Mr Macpherson says it was normal to send notes like
 8       this.
 9           By 25th January the police were aware of evidence
10       that the money found in the tin was folded in a way that
11       Miss Ross had folded money when she was employed in the
12       bank.  This is noted in a briefing paper of that date in
13       the handwriting of Mr McAllister.  In a manuscript note
14       Mr McAllister updated Mr Heath with more detail from DS
15       Shields regarding the money.
16           Mr Heath does not doubt that SCRO would have been
17       told that the police regarded the tin and the money as
18       significant and been asked to direct their resources
19       towards examination of marks on these items.
20           At some stage SCRO were made aware that the tin
21       containing cash was of particular interest to the
22       police.  There is a handwritten note in the SCRO case
23       envelope vii in these terms:
24           "Gift tag bought 18/11/96.  They are hopeful about
25       the tin the money was in.  There is an area the same
page 113
 1       size as the tin on her bedside table, clearly seen with
 2       dust around it.  Tin recovered at accused's."
 3           The note was written by Charles Stewart.  He does
 4       not recall writing it, but would have passed the note to
 5       Mr Macpherson.  Mr Macpherson accepts that he must have
 6       read the note at the time but he has no recollection of
 7       it now.  Mr Heath accepts that the use of the word
 8       "hope" could be viewed in some quarters as inappropriate
 9       but may be only over exuberance.
10           The "shape in dust" is mentioned in the HOLMES
11       policy file for 26th January, and it may be reasonable
12       to infer that it was about this time (around the weekend
13       of 25th or 26th January) that the information about this
14       line of Inquiry was passed to SCRO.
15           Mr Heath has no recollection of anything to do with
16       shapes in dust.  He views this as a matter of
17       significance and finds it unusual that he was not
18       informed of it at the time.
19           Mr McAllister's evidence: at one point in his
20       statement he says he has no recollection of this, later
21       saying that the note refers to someone having thought
22       that there had been a dust mark in Miss Ross' house that
23       may have fitted the shape of the tin, "but it was no
24       more than a thought".  There was a discussion but he has
25       no recollection of how the "dust mark theory"
page 114
 1       progressed.
 2           He does not know who supplied this information to
 3       SCRO but it was the sort of information that would be
 4       mentioned at debriefs or contact meetings.  Speaking
 5       specifically of the first part of the message, relating
 6       to the gift tag, he says that the amount of information
 7       given to SCRO was a mater for the discretion of the
 8       senior investigating officer and there were variations
 9       between officers in that regard.  Then he makes this
10       personal observation:
11           "The benefit of communicating this type of
12       information was, on a fundamental level of motivation
13       and team working, making every department, including
14       back room staff, involved with the case a part of the
15       investigating team."
16           Mr Brown says that he has received information about
17       a dust free shape on a shelf in Miss Ross' house
18       identical to the shape of the tin found in Asbury's
19       room.  He regards this as crucial evidence and has tried
20       to identify the source of the information.  He
21       understands that Charles Stewart, the fingerprint
22       officer, has the answer and he refers to a note in the
23       "case papers".
24           On 27th January Mr Heath submitted a follow-up
25       report to the Procurator Fiscal concentrating on the
page 115
 1       manner in which the bank notes found in the tin had been
 2       folded.  The report states that fingerprint, forensic
 3       and handwriting examinations were to take place to
 4       endeavour to prove that the money belonged to Miss Ross.
 5           Turning to Mr MacNeil, on Monday 27th January
 6       Mr MacNeil and Leslie Gibbens examined the tin for
 7       fingerprints.  They used superglue, basic yellow and
 8       Quaser light methods.
 9           Examination disclosed two prints on the lid (QE2
10       through QF2) and six others on the outside of the tin.
11       QI2 was one of those found on the outside.  The use of
12       the letter Q indicates the use of Quaser light
13       examination.
14           He is reasonably certain that he photographed the
15       marks.
16           The negatives were retained by the identification
17       branch in lift envelope 97.
18           QD2, this is mark QD2 now.  On the same day, 27th
19       January, Gibbens and MacNeil also examined the money
20       which had been submitted for examination.  They used a
21       chemical developer and Quaser light to find mark QD2.
22       They took a photograph of QD2 though Mr MacNeil has no
23       recollection of preparing a reverse image.
24           To the best of his recollection Mr MacNeil knew at
25       the time that the police regarded the money and the tin
page 116
 1       as significant but he cannot now recollect how that was
 2       communicated to him.
 3           I will deal now with form 13B and perhaps if we
 4       could bring up the document DB0251, this is the form
 5       13B.  Mr MacNeil and Mr Gibbens completed that form 13B
 6       relating to the series of marks QB2 to QL2.  It is a
 7       form that is used when fingerprints are sent to SCRO.
 8       The series of marks to which this form relates includes
 9       both QI2 and QD2.
10           The specific form 13B relating to the marks QB2 to
11       QL2 is one of the series of documents that the Inquiry
12       has and contains an entry in Mr MacNeil's handwriting:
13           "ident required for deceased."
14           None of the other form 13Bs relating to marks in
15       this case contains a similar entry.  Mr MacNeil explains
16       that this would be the type of expression that would be
17       used where a scene of crimes officer has some knowledge
18       of the potential significance of the production to the
19       criminal investigation and wanted to ensure that it was
20       not overlooked.  He concedes that the word "comparison"
21       might have been more appropriate than "ident".
22           Mr Heath attended at the lab, IB and SCRO meeting on
23       29th January and fingerprint officers may have been
24       present but he cannot recall.  The purpose of such a
25       meeting was to explain the priorities in the case.  His
page 117
 1       briefing notes for the 29th refer to elimination of
 2       prints and he observes that this was critical at this
 3       stage.
 4           SCRO crime scene Marks Worksheet BY31 bears a record
 5       that Alister Geddes received the photograph of QI2 at
 6       SCRO on 29th January.  That is consistent with the date
 7       stamp on form 13B.
 8           Turning to the identification of QD2 and the
 9       photograph of that is SG0691 and 2.  We have here the
10       front and back of the photograph.  This mark was
11       received in SCRO on 29th January and identified that
12       same day as the right little finger of David Asbury.
13           The entry on Marks Worksheet BY31 relating to QD2
14       was completed by Mr Macpherson.
15           For the purposes of the later civil proceedings the
16       Scottish Executive commissioned a report by Michael Pass
17       dated 30th January 2006.  Attached to that report is a
18       copy of an image of QD2 with manuscript writing relating
19       to the identification and a manuscript note ostensibly
20       from the reverse of that image recording that QD2
21       identification was reported to DI McAllister that day.
22       That note was written by Mr Macpherson.
23           The Inquiry does not have the original of that
24       annotated image of QD2.  However, the Inquiry does have
25       a photographic original of this mark lodged by the
page 118
 1       prosecution at the Asbury trial and has the negatives of
 2       that image.
 3           The copy of QD2 is annotated with four sets of
 4       initials.  Though Mr Macpherson is not sure about the
 5       third set of initials, the consensus is that the
 6       initials are those of Macpherson, Geddes, Orr and
 7       McBride.
 8           Mr Geddes says that the initials are his,
 9       Mr Macpherson, James Orr and (possibly) Miss McBride.
10       He understands the image to have been received and the
11       result phoned out all on 29th January 1997.
12           Shown the copy of QD2 Ms McBride says her initials
13       are on it and therefore she must have been one of those
14       who initially either identified or eliminated the mark
15       as that of David Asbury.  The others were Macpherson,
16       Orr and Geddes.
17           In due course QD2 was reported in a joint report
18       dated 17th March 1997 by Macpherson, Stewart, McBride
19       and McKenna.  That became production 100 in the Asbury
20       trial.
21           Mr McKenna was not involved with QD2 at the
22       investigation stage.
23           Turning to the full committal of Mr Asbury, while
24       the fingerprint comparison work was ongoing the
25       Kilmarnock Procurator Fiscal sent a report to Crown
page 119
 1       Office, known as the three-day report, with a view to
 2       obtaining Crown counsel's instructions on full
 3       committal.
 4           The preliminary stages in a murder case are as
 5       follows: there are two hearings in court.  At the first
 6       hearing the accused person appears on petition and may
 7       be judicially examined.  The second hearing occurs not
 8       later than eight clear days after the first hearing.  At
 9       the second hearing the accused will be fully committed
10       for trial and, at that time, a charge of murder would
11       invariably result in the accused being remanded in
12       custody.
13           The decision to place the accused on petition is a
14       matter for the local Procurator Fiscal but an accused
15       person may only be fully committed for trial if Crown
16       Counsel (that is to one say of the Lord Advocate's
17       deputes working in the Crown Office in Edinburgh) has
18       authorised the application to the Sheriff.  The local
19       fiscal is required to submit a report to the Crown
20       Office within three days of the accused first appearing
21       on petition.  This report is known as a "three day
22       report" and its purpose is to inform the decision by
23       Crown Counsel whether there is sufficient evidence to
24       commit the accused for trial on a charge of murder.
25           The author of the three day report was
page 120
 1       Mr MacTaggart, a Procurator Fiscal Depute.  The report
 2       was dated 28th January, and was received at Crown Office
 3       on 29th January.
 4           The three day report was studied by William
 5       Gallacher, a Procurator Fiscal Depute who was then the
 6       head of the High Court Unit in Crown Office, and passed
 7       by him to the Duty Advocate Depute for instructions.
 8       Mr Gallacher appended a note on a yellow slip.  I will
 9       read part of that.  He wrote:
10         "I have asked the Procurator Fiscal to clarify what
11       the evidence is of his family regarding 5th to
12       7th January.  Police say they cannot support the
13       accused -- I have asked him just what they say.  At JE
14       [that's judicial examination] the accused says he was in
15       the house on 4th January '97 and at home between 5th and
16       7th January.  As for money I have asked for an
17       explanation as to the differences in amounts, whether
18       all the money is folded unusually and for what the
19       accused actually says about it."
20           The immediately following slip, dated 30th January,
21       is from Ronnie Clancy and simply reads:
22           "CC [that is Crown Counsel] instruct FC [that is
23       full committal] murder."
24           That is the traditionally brief instruction from an
25       Advocate Depute (Crown Counsel) authorising the local
page 121
 1       Procurator Fiscal Depute to apply to the court to have
 2       Mr Asbury fully committed for trial.
 3           Mr Heath confirms that the Fiscal did contact him on
 4       30th January and he met with Mr MacTaggart that day to
 5       discuss two matters.  The first was the way the money
 6       was folded and the second was the evidence regarding
 7       David Asbury's whereabouts from 6th January.  Mr Heath
 8       has provided notes that he prepared for that meeting.
 9            Mr Heath recalls Mr McMenemy saying to him at some
10       point that it was "a fairly circumstantial case".  He
11       says that this was more likely when he delivered the
12       "Custody Case", which (read in context) is presumably a
13       reference back to 23rd January.
14           Mr Asbury was fully committed for trial on 31st
15       January 1997.
16           The now Sheriff Crowe met Mr McMenemy on
17       30th July 2000 when, as Depute Crown Agent, he went to
18       Kilmarnock to view fingerprints with Rasmusson and
19       Rokkjaer.  Sheriff Crowe notes that a prime facie case
20       was required for full committal and adds:
21           "Mr McMenemy's recollection is that at the very last
22       minute the police were able to produce the Marion Ross
23       fingerprint on the biscuit tin found in David Asbury's
24       home and he had been slightly suspicious about that at
25       the time.  He was aware that it was an evidentially thin
page 122
 1       case from the outset and police (sic) had been
 2       especially thorough in their search for evidence."
 3           Turning now to the separate matter of the
 4       identification of QI2, photograph which is at DB0001.
 5       QI2 was not identified until 31st January.  Again, the
 6       Inquiry has the original of the photograph with markings
 7       by SCRO fingerprint officers relating to the
 8       identification.  The back of the photograph -- which I
 9       think is the next image -- bears a record dated 31st
10       January 1997 written by Mr Macpherson.  The initials
11       refer to Hugh Macpherson, Alister Geddes, Charles
12       Stewart and Edward Bruce and it reads:
13           "Deceased's on screen 31/01/97 HMcP/CS/AG/EB
14       (written in red ink).  Accused's on screen
15       31/01/97 HMcP/AG/EB/CS (red ink), D/IMCDonald informed
16       31/01/97 12.25 of above idents.  Info to be passed onto
17       D/McAllister ..." and that's in black ink.
18           There is a record also on Crime Scene Marks
19       Worksheet BY31 where against QI2 there appears "QI2
20       (part of) IDENT'D NO'2 of DECEASED" (in red ink).  The
21       photograph and Mark Worksheet also contain references to
22       two further crime scene marks within the cluster
23       labelled QI2 as having been identified as belonging to
24       David Asbury.
25           In contrast to what is seen on the image of XF and
page 123
 1       in the entry in the Marks Worksheet in relation to XF
 2       where black entries are changed to red, there is no
 3       indication that what is being done in relation to QI2 is
 4       an elimination process which then becomes an
 5       identification process.
 6           Mr Heath confirms that he was told of this
 7       identification by Mr McDonald on 31st January and that
 8       he passed this information on to the Fiscal,
 9       Mr McMenemy.
10           That was the day of the full committal hearing but
11       the day after Crown Counsel had instructed full
12       committal.
13           The points that are noted in relation to QI2 -- if
14       we could bring up again DB0251 and also C00197H3 -- I am
15       sorry, DB0251 -- and that's the one 13 at the top and
16       then the worksheet below.  There are two points peculiar
17       to QI2.  The form 13B relating to the series QB2 to QL2
18       uniquely contained the specific line of inquiry -- the
19       entry: "IDENT REQUIRED FOR DECEASED".
20           There is no record of this series being checked
21       against anyone other than Mr Asbury and Miss Ross.  That
22       is the lower sheet you see just now.
23           Mr McKenna describes the use of this language as
24       unprofessional and concedes that it is open to
25       misinterpretation but says that SCRO experts were a hard
page 124
 1       group to pressurise.  He had no involvement with QI2 at
 2       the investigation stage.
 3           Mr Mackenzie is unable to explain why the
 4       elimination of Miss Ross' fingerprint as matched to QI2
 5       is not documented in elimination worksheet BY6, which is
 6       the lower of the two documents on the screen.
 7           Fiona McBride, although not involved in the initial
 8       identification of this mark, suggests that the notation
 9       "ident required for the deceased" was to let the
10       fingerprint examiners know that the mark was important,
11       and was to be examined to the identification (ie 16
12       point) standard and not merely as an ordinary
13       elimination.  Charles Stewart's reading of this is
14       similar to Fiona McBride's -- it signifies that the mark
15       is of particular interest to the Senior Investigating
16       Officer.  Neither would read it as a command to make an
17       identification.
18           Equally, Fiona McBride explains that it would be
19       logical to examine the mark against Asbury (it was found
20       on a tin in his house) and Miss Ross before anyone else.
21           Mr Macpherson explains his ordinary method of
22       working in his principal statement.  Having firstly
23       determined which marks to set aside as fragmentary and
24       insufficient, his second stage was to check marks
25       against elimination forms and then, thirdly, check marks
page 125
 1       against the suspects in the case.
 2           Mr Macpherson deals with the two specific points
 3       relating to QI2 in his supplementary statement.  "Ident
 4       required for deceased": means a request to compare the
 5       marks against the deceased's prints.  It was an
 6       important identification because the tin was found in
 7       Asbury's house and was not like the other
 8       identifications of marks of the deceased (ie, of things
 9       found in her house).
10           As for the fact that QI2 may have been compared only
11       against Asbury and Miss Ross he gives the same
12       explanation as Miss McBride: in light of the information
13       that SCRO had about the tin it would be logical to
14       compare against these two.  The information that SCRO
15       would have had would have included the manuscript note
16       DB0256 that told them that the police were interested in
17       the tin and any involvement of Miss Ross with it.
18           The cross through the columns in the elimination
19       worksheet BY6 for marks QB2 to QL2 signifies that there
20       was no need to compare these marks against the persons
21       listed.  Marks Worksheet BY31 shows that all of the
22       marks in this bundle were determined to be fragmentary
23       and insufficient or identified as that of Asbury or
24       Miss Ross and there was therefore no more work to be
25       done on them.
page 126
 1           Mr Heath says that Mr McAllister was responsible for
 2       liaison with SCRO and he has no doubt that SCRO would
 3       have been told that the tin and the money were
 4       significant.  Logically the police would want marks on
 5       the tin and money compared with Mr Asbury and Miss Ross
 6       but they would have been interested in all marks on the
 7       tin because in Heath's view it was likely that there was
 8       more than one person involved.
 9           Mr McAllister does not know the purpose of the note
10       "ident required".  He does, though, accept that in his
11       liaison role he would have given an indication to SCRO
12       of which prints he would like eliminated as a priority
13       and, for example, in relation to the money in the tin he
14       faxed SCRO names of known associates of Mr Asbury and
15       would have asked that they be checked against the money.
16           In the SCRO case envelope murder (vii)  There are
17       manuscript notes that relate to a debrief on
18       13th January 1997.  On page 3 of those notes there are
19       entries indicating that SCRO would receive an exhaustive
20       series of eliminations and Mr Thurley was to act as the
21       liaison officer in relation to the comparisons.  The
22       notes were written by Mr Macpherson.
23           Similarly it may be noted that manuscript numbers
24       have been inserted against the individuals name on the
25       elimination work sheets BY6, for example, in page number
page 127
 1       2 and 4.  On BY6 page numbered 2 is marked that those
 2       numbers show the order in which to proceed.  That would
 3       be consistent with the SCRO working to a ranking
 4       prioritising the people to be checked.
 5           An issue that the Inquiry will have to explore is
 6       whether this exchange of information between the police
 7       and the fingerprint officers was an appropriate
 8       operational matter necessary to prioritise the work of
 9       the fingerprint officers or was a practice that posed
10       the risk of subconsciously influencing the
11       identification process.
12           Turning then to the SCRO examination of QI2 and QI2
13       is again DB0001, the identification of part of QI2 as a
14       fingerprint of Miss Ross is the subject of dispute and
15       therefore it is necessary to look closely at the
16       evidence relating to this identification.
17           A distinction has to be drawn between the initial
18       examination and the preparation of the report for court.
19       The notation on the back of the image of QI2 records
20       that it was examined by Hugh Macpherson, Alister Geddes,
21       Charles Stewart, and Edward Bruce.  The SCRO report for
22       the Asbury trial is dated 17th March.  It was signed by
23       Hugh Macpherson, Charles Stewart, Fiona McBride, Anthony
24       McKenna.  This chapter is considering matters
25       chronologically and will review the evidence relating to
page 128
 1       the initial examination.  The preparation of the report
 2       will be addressed in chapter 6.
 3           So the evidence of the fingerprint examiners.
 4       Mr Macpherson's evidence: he was the first fingerprint
 5       examiner to examine QI2.  He did not tend to keep
 6       working notes and therefore there is no permanent record
 7       of the specific characteristics that he used in forming
 8       his opinion.  (Keep up DB0001 and keep them up
 9       side-by-side).
10           He thinks he may have known that the tin came from
11       the accused's house.  From memory, he thought it had
12       come from the accused's bedroom.  That would be
13       consistent with the entry in the "serious and noteworthy
14       crimes" SCRO fingerprint bulletin.  Two marks were
15       identified on QI2: one was finger 2 of Marion Ross and
16       the other was finger 3 of David Asbury.  His
17       identification of these two fingers is recorded on the
18       image of QI2.  He found a further digit which he
19       considered was number 6 of the accused but did not find
20       16 points of similarity (it was less than 10 points).
21           He used the original prints from Miss Ross in making
22       his comparison.  He would use fingerprint glasses for
23       his initial comparison.  He used both the crime scene
24       mark and the known print at the time at the same time.
25       He did not look at one first and then identify minutiae
page 129
 1       before considering the other.
 2           Once he had identified a match, he would use the
 3       comparator machine to mark the points of comparison.
 4           The following examiner would check his findings and
 5       that person would tend to do their first assessment on
 6       the comparator, taking the items away and looking at
 7       them under glass if they were not satisfied.  When the
 8       second examiner came along, the first examiner's work
 9       would still be on screen and it was for the second
10       examiner to decide to rub them off or not.  Examiners
11       would initial the screen as a tracking log, with the
12       initials being marked on the photograph later.
13           He says that it looks as if the next person to view
14       QI2 in relation to the deceased's mark was Charles
15       Stewart.  The second person looking at the mark in
16       relation to David Asbury was Mr Geddes.
17           The note on the back of QI2 records that both
18       identifications in QI2 were passed to DI MacDonald at
19       12.25 on 31st January, the information then passed on to
20       Mr McAllister.  This records a telephone call that
21       Mr Macpherson made.  In his supplementary statement, he
22       addresses the fact that in the marks worksheet BY31 the
23       mark is referred to as "identified" as the deceased,
24       whereas for other marks it was "eliminated" as the
25       deceased.  The explanation is that QI2 was important.
page 130
 1       It was the finding of the deceased's print on an object
 2       in Mr Asbury's house and not the finding of her print on
 3       an object in her own house.
 4           Mr Foley also says that second, third or fourth
 5       checker might look at the mark on the comparator.  The
 6       checker might find a colleague's markings on screen to
 7       see what they could see, but would wipe the screen and
 8       start afresh to satisfy himself that he could find 16
 9       characteristics.  This he describes as a form of
10       discussion between the experts.  He adds that the final
11       checker would put the initials of those who had checked
12       the mark on the back of the photograph.
13           Ms McBride has no memory of being involved with the
14       initial identification but reads the markings on the
15       back of QI2 as indicating that it was viewed on the
16       comparator.
17           Turning to Charles Stewart, he too did not keep
18       notes.  There would be regular dialogue between the
19       Senior Investigating Officer and the fingerprint officer
20       with the police setting the priorities for SCRO.  The
21       fingerprint officer would take care as to what
22       information he passed on to his team letting them know
23       only what they needed to know.
24           Though he has no memory of it, he accepts that he
25       wrote, and would have passed on to Mr Macpherson the
page 131
 1       note that reads:
 2           "They are hopeful about the tin the money was in.
 3       There is an area the same size as the tin on her bedside
 4       table, clearly seen with dust round it.  Tin recovered
 5       at accused's."
 6           He also does not recall seeing the form 13B relating
 7       to the mark.
 8           He does not recall being told anything about the
 9       mark beforehand by Mr Macpherson.
10           He construes the term "on screen" on the image as
11       meaning no more than the individuals had been offered
12       the chance to look at the marks on the comparator.
13           He has no recollection of using the comparator
14       machine.  He cannot remember if he saw anyone else's
15       markings on the screen.  He may have marked up the
16       screen with his views but he does not think he used the
17       machine.
18           He would have carried out the comparison in the
19       usual way.  He would have used glasses and would have
20       looked at the mark and the print simultaneously.  Once
21       he had identified 16 characteristics in sequence and
22       agreement he would have stopped.  There would have been
23       no point in continuing.
24           He would have used the print taken from Miss Ross on
25       10th January because they were clearer.
page 132
 1           Mr Geddes: in 1997 it was not his practice to keep
 2       working notes of his comparisons.  Looking at the words
 3       "on screen" written on the back of QI2, he says that the
 4       mark and the photograph have been placed on the
 5       comparator for various experts to view.
 6           They are likely to have looked at the marks in the
 7       order in which the initials were marked on the
 8       photograph assuming that Mr Macpherson wrote the
 9       initials in the same sequence.
10           The expert would mark the screen and initial it.
11           He recalls being asked to do the third check on QI2.
12       The mark was of poor quality but better than Y7.  He
13       identified the mark as Miss Ross and found 16
14       characteristics on the comparator.  Later in the
15       statement he says that he compared QI2 against Miss Ross
16       and Mr Asbury either under the glasses or on the
17       comparator.
18           There would have been markings on the screen before
19       he started but he would have wiped them.  He also
20       accepts that he may have known from the Marks Worksheet
21       which finger he was dealing with.
22           His recollection is that QI2 was not a clear cut,
23       run-of-the-mill mark.  He thinks that there had been
24       interference with the mark which made ridge detail
25       difficult to find but he was able to make an
page 133
 1       identification.
 2           The lines through elimination worksheet BY6 mean
 3       that the prints have all been dealt with, though he
 4       accepts that technically that sheet should have been
 5       completed.  It is all accounted for on BY31.
 6           Turning to Edward Bruce's evidence, he has no memory
 7       of being involved with QI2.  His signature does not
 8       appear on any of the documentation.  His initials on the
 9       photograph of QI2 were not written by him.  This is
10       consistent with the possibility that he may have seen it
11       on the comparator.  He says that only those who
12       identified 16 characteristics would sign the case
13       envelope.  Then he says:
14           "As I had not identified 16 characteristics, I did
15       not sign the envelope."
16           The envelope that relates to QI2, both the
17       part identified as Miss Ross and the part identified
18       Mr Asbury, is available to the Inquiry.  Mr Macpherson
19       says that it is signed by Macpherson, Stewart, Geddes,
20       McKenna and McBride.  Miss McBride agrees that list of
21       signatories, including confirming that she signed the
22       case envelope, though she cannot remember doing so.  On
23       the other hand, Mr McKenna seems to think that
24       Mr Bruce's signature is on the envelope, though he
25       cannot explain why that would be so.
page 134
 1           Mr Macpherson explains the absence of Mr Bruce's
 2       signature by saying that the persons by whom it was
 3       signed would depend on who was available to him at the
 4       time.  Miss McBride cannot explain why he did not sign
 5       it.
 6           In addition to the original material prepared for
 7       the criminal trials the Inquiry also has also been
 8       provided with productions prepared for the proof in
 9       Ms McKie's damages claim.  One of those in the booklet
10       bearing the signature of Mr Bruce and relating to QI2.
11       Mr Bruce comments on that booklet saying it was:
12           "A charting [he] was asked to prepare of what [he]
13       thought [he] might have seen in 1997."
14           He thinks that he was working from copies and not
15       the originals of the mark.  He marked 12 points of
16       comparison and adds:
17         "I think I marked about 12 points of comparison [and
18       that's correct] but stated the quality of the mark was
19       poor and I would not have gone to court to say this was
20       an identification.  At best it was an elimination."
21           Mr Bruce gave two statements to Operation Alba with
22       reference to QI2 dated 21st and 26th September.  Those
23       statements are as vague as his statement to the Inquiry
24       and are at best conjectural that his initials on the
25       photograph imply that he may have seen QI2 on a
page 135
 1       comparator at the time.
 2           That concludes the chapter 3 analysis on which the
 3       issues are: what was the nature and extent of the
 4       information supplied to SCRO fingerprint examiners about
 5       the marks found on the Marks & Spencers tin?  Why did
 6       the form 13B prepared in relation to the group of marks
 7       including QI2 contain the message "ident required for
 8       deceased"?  What discussions took place between police
 9       and Crown regarding the sufficiency of the case
10       against David Asbury prior to full committal?  What
11       steps were taken in relation to the identification and
12       verification of marks XF, QI2 and QD2?  In particular,
13       to what extent were checks on the initial identification
14       of each of these marks based only on examinations on the
15       comparator?  Finally, why are the elimination and
16       identification of QI2 not more fully documented?  There
17       is a list given of the individuals as witnesses I have
18       named.
19           Turning to chapter 4 and this is the finding of Y7
20       and Z7 and perhaps if we could bring up, please, the
21       three items here DB0003, AA0002 page 4 and the Y7
22       photograph which is PS0002.
23           The photographs, top left-hand corner PS0002.  Mark
24       Y7 was found on 14th January 1997.  It was found at the
25       same time as, and in close proximity to, a partial
page 136
 1       palm-print Z7.  Scene of Crime Officers Mr Moffat,
 2       Wilson and Hunter were redusting the area around
 3       Miss Ross' body with black powder after James Kerr or Mr
 4       Moffat had drawn attention to a mark on skirting board
 5       that had not shown up well with aluminium powder.
 6           Mr Moffat says that the Scene of Crime Officers
 7       present decided to redust the area with the black powder
 8       and that he was aware from past experience that the use
 9       of black powder could enhance the quality of a print.
10           Mr Wilson says that because the door was near the
11       kitchen and bathroom they thought the surfaces might be
12       contaminated by grease and subject to condensation and
13       that black powder might bring up something where
14       aluminium powder might not.
15           Mr Wilson was brushing the surface with Mr Hunter
16       shining the torch.  Mr Moffat photographed the prints
17       that appeared.  His recollection is that they brought up
18       another 12 or so marks.  A register of the marks found
19       is available to the Inquiry.  If we could look in the
20       image which is at the top right-hand corner and blow up,
21       there is Y7 just now there marked in yellow.  Y7 down
22       to ... blow up the bottom quarter of the right-hand
23       section.  In the right-hand page halfway down the page
24       you will find in the middle column the first entry in
25       the column to Y7.  Can you blow up the bottom right-hand
page 137
 1       corner.
 2           So Mr Wilson was dusting the surface with Mr Hunter
 3       shining the torch and Mr Moffat photographed the prints
 4       that appeared.  His recollection is that brought up
 5       another 12 or so marks.  We have a register of them.
 6       Mr Moffat noted the location and used arrow heads to
 7       depict the orientation of Y7 in his notebook AA0002 and
 8       that's what's highlighted on the screen at present.  He
 9       wrote:
10           "Y7 right-hand side hallway bathroom door surround
11       5 feet", and then an arrow pointing straight up.  He
12       marks ditto for Z7 and there is a corresponding entry
13       for A8 found on the left-hand side of the bathroom door
14       facing.  Beneath these three entries he wrote "possible,
15       sweat print, appears fresh".  He explains this in 48 to
16       50 of his statement.
17           This is a non-scientific description, with "fresh"
18       signifying that Y7 showed up well with good contrast or
19       good definition between the ridges.  He says of mark A8
20       that he was hoping that it was not linked to Y7 and Z7
21       because "it appeared fresh and possibly the
22       assailant's."
23           If we could side-by-side with that also the IMDE333,
24       page 17 and on this occasion it's the top three lines.
25       That should be fine.  Take the top three lines and
page 138
 1       highlight them.  It says right-hand side hallway door
 2       surround Y7.  He also recorded the finding of these
 3       prints on mark worksheet BY31.  He has not been able to
 4       explain to difference in the direction of the arrow for
 5       A8 as between his own notebook and the work sheet.  Both
 6       should be pointing straight up.
 7           Mr Moffat says that he took his photographs on the
 8       14th and the film would have gone for development on the
 9       14th before being received by SCRO.  He says that the Y7
10       image bearing handwriting of SCRO officers on PS0002 is
11       a copy of the photograph that may have been taken by
12       him.  He also confirms that the negatives of the marks
13       Y7 to T9 in the envelope are the negatives of the
14       photographs taken by him.
15           DC Kerr was present when Y7 was found.  He noted
16       tape marks where the initial aluminium lifts had been
17       removed from the doorframe.  He did not find the
18       discovery of additional marks unusual.  He says that
19       Stuart Wilson may have commented that Y7 may have come
20       from a child or young woman.  It looked to him like a
21       plain print and was not a smear mark.  It looked to him
22       like a pressed print image.
23           Mr Wilson says he has no recollection now of where
24       Y7 and Z7 were found.  To the best of his recollection
25       Y7 was not visible before he started dusting with black
page 139
 1       powder and there was no sign of disturbance of the
 2       aluminium powder.
 3           He is, accordingly, of the opinion that the prints
 4       found with the black powder had been there before the
 5       application of aluminium powder.  This is consistent
 6       with his Operation Alba statement in July 2000, however,
 7       the precognition noted from him by the Procurator Fiscal
 8       on 8th December 1997 for the McKie case contains the
 9       opposite opinion.  Mr Wilson says that that precognition
10       does not reflect his views then or now.
11           Mr Carle's note of Mr Wilson's evidence at the McKie
12       trial indicates that Mr Wilson's evidence is consistent
13       with his statement to the Inquiry: his opinion was that
14       Y7 was on the doorframe before the application of the
15       aluminium powder.  His evidence is in section 34 of that
16       note.
17           Just dealing with the visit by Mr Macpherson and
18       Geddes on 17th January 1997.  Mr Macpherson visited the
19       locus on 17th January 1997 with Mr Geddes to view a
20       print on a chair.  He believed that he saw Y7 at that
21       time because it was an important mark.
22           Mr Geddes similarly says that Y7 was viewed.  He
23       noted its position and could see that it was potentially
24       going to be a thumb print but there was no discussion.
25       The visit did not confirm it as a left or a right.  You
page 140
 1       don't know where the person was when they made it.
 2           That may be a good point to stop.
 3   THE CHAIRMAN:  Yes, we will stop now until 3.00.
 4   (2.48 pm)
 5                         (A short break)
 6   (3.00 pm)
 7   MR MOYNIHAN:  Having spoken about the visit by fingerprint
 8       officers on 17th January, I am now going to turn to the
 9       second visit on 23rd January by Mr McAllister and
10       Mr Moffat.  Mr Moffat speaks to a visit to the house on
11       23rd January.  He was asked by Mr McAllister to go to
12       the locus to review some of the fingerprints.  He had
13       not done that before.  On reflection, he now has
14       concerns as to why he was asked to visit the scene.
15       Mr McAllister wanted to ask for an opinion on certain
16       marks at the scene.  He was mainly interested in Y7 and
17       Z7 but also discussed A8.  Mr McAllister asked about the
18       age of the prints.  Mr Moffat says that he told
19       Mr McAllister that he was sure that they were Gray's
20       prints and that he recounted the incident with the burst
21       glove.  Mr Moffat says this:
22           "DI McAllister clearly indicated that the prints
23       were not Gary Gray's and that they had been identified
24       as belonging to another police officer.  He made no
25       indication as to the name, age or sex of the officer.
page 141
 1       By his tone I thought now would not be a good time to
 2       say any more."
 3           Turning to Mr McAllister's evidence, can I put on
 4       screen a copy of his manuscript notes, computer
 5       reference to which is CO1706.  He says that he attended
 6       the locus on 23rd January as part of his liaison role.
 7       He says that he was ultimately hoping to provide an
 8       assurance to the Crown Office that all marks had been
 9       identified or eliminated.  Mr Moffat was there to point
10       out the various outstanding marks to him.
11           He says that it is untrue that he confided to
12       Mr Moffat that he knew that Y7 had been identified as
13       the mark of a police officer.  He had no knowledge at
14       that time that would have enabled him to make that
15       observation.
16           He has no recall of expressing the view that Y7
17       could be the mark of a woman or a child.
18           Y7 was of interest to him because of its proximity
19       to the body.
20           After this meeting, he prepared his own aide-memoire
21       (CO1706 which is on screen).  In this he noted Y7 may
22       possibly have been the right little finger of palmar
23       print Z7 because of their proximity.  He also noted the
24       thought that it may have been left by someone leaning in
25       with their hand on the right-hand side of the doorframe
page 142
 1       to look at the body.
 2           Mr Wilson says he was at the locus that day but has
 3       no recollection of any conversation.
 4           Mr Thurley likewise has no recollection of
 5       Mr McAllister saying anything about Y7.  PC McIntyre has
 6       a recollection of DI McAllister visiting the locus and
 7       that he showed him Y7.  He now has no memory beyond
 8       that.  However, he has seen the statement that he gave
 9       to Chief Inspector Wilson dated 10th July 1997 and says
10       that he believes that that statement would be correct.
11       In that statement he dates the visit vaguely as a few
12       days after Y7 was found, towards the end of the Inquiry
13       "probably in February 1997".  The statement notes
14       Mr McAllister having said of Y7 that "it looked like a
15       child or a female, but was not more explicit than that."
16           Turning then to the examination of Y7 to V9, a
17       bundle of prints, contemporaneous records do record the
18       dates on which the print batch Y7 to V9 was examined.
19       It was being worked on from 19th January.  BY6
20       elimination page number 2 shows the batch being compared
21       against Miss Ross and the others from 19th January.  BY3
22       suspect page shows the batch compared against suspects
23       from 20th January.  In the SCRO case envelope murder vii
24       there is a manuscript sheet in these terms:
25           "Checked against Y7 to V9 Graham Hunter, Michael
page 143
 1       Moffat, David Thurley, David Ferguson, Stewart Wilson."
 2           The manuscript sheet has initials (possibly Mr Orr)
 3       and is dated 23rd January.  That would be consistent
 4       with Y7 being checked against SOCOs.
 5           The worksheet BY4 elimination page containing police
 6       shows the batch including Y7 being examined against a
 7       list of police officers from 3rd February.  This is a
 8       sheet that contains a record of the comparison against
 9       Ms McKie dated 10th February.
10           BY6 shows the batch comparing against PC Gary Gray
11       on 20th and 21st February.  One of the examiners would
12       appear to be Mr Geddes.  The second set of initials is
13       unknown.  It cannot be determined from this list whether
14       Y7 was checked against Gary Gray or only the other marks
15       that remained unidentified or had not otherwise been
16       eliminated by that date.
17           Mr Heath's briefing notes record that by
18       4th February the number of un-eliminated prints was down
19       to 4, including one on bathroom door facing.  SCRO
20       requested Ms McKie's prints, among others, on
21       6th February.
22           The telephoned request for her fingerprints on
23       6th February, the taking of her fingerprint by Sergeant
24       Shields and the supply of these to SCRO on 7th February
25       1997 are all recorded on the HOLMES system.
page 144
 1           Hugh Macpherson states that the request would have
 2       come either from him or Mr Geddes.  Geddes says the
 3       same.
 4           Elimination page containing police staff BY4 bears a
 5       record that Ms McKie's elimination form was received at
 6       SCRO on Friday 7th and that entry was written by
 7       Mr Geddes.
 8           The elimination form became production 153 in the
 9       Asbury case.  Sergeant Shields obtained the impressions
10       from Ms McKie.  The Inquiry has the original form.
11           Ms McKie says that she raised the need to compare
12       her prints on 6th February.  This was after she became
13       aware that Mr Asbury had been arrested and that the tin
14       had been recovered.  She explained to a member of the
15       HOLMES unit that she had handled the tin and that her
16       prints should be compared against any impressions found
17       on the tin.  Her prints could not be found and Sergeant
18       Shields took another set for her.
19           Dealing with Z7: Z7 was excluded as fragmentary and
20       insufficient.  This is recorded on page 21 of BY31.  The
21       date on which this was done and the person by whom it
22       was done are not recorded.  Mr Geddes says that the
23       writing on the worksheet relating to Z7 is his.
24            Mr Macpherson makes the point that once a mark is
25       deemed fragmentary and insufficient it is removed from
page 145
 1       the bundle and not then used in the elimination
 2       exercise.
 3           Turning to Y7 and the SCRO evidence relating to the
 4       initial elimination as Ms McKie on 10th and 11th
 5       February -- it might be just as well to bring up Y7
 6       which is PS0002.  We may also want the back image.
 7       Thank you.
 8           So since this is likely to be an area of contention
 9       this analysis will primarily precis the evidence that
10       each witness has provided, cross-referenced as
11       appropriate to contemporaneous documents.
12           The Inquiry has the originals of both the photograph
13       of Y7 on which SCRO officers wrote markings relative to
14       their identification and the elimination fingerprint
15       form for Ms McKie used in comparison and what is on
16       screen is a copy of the original photograph of Y7 with,
17       beneath it, Z7 as well.
18           The Inquiry also has the negatives of that
19       photograph of Y7.
20           Mr Macpherson's evidence: he or Mr Geddes asked for
21       elimination prints from Ms McKie because her prints were
22       not filed.
23           Mr Macpherson accepts that he was the first person
24       to eliminate Y7 as the fingerprint of Ms McKie.
25       Mr Macpherson had visited the locus on
page 146
 1       17th January 1997 with Mr Geddes and believes that he
 2       might have seen Y7 at that time.  He did not have the
 3       photos with him and does not remember trying to
 4       orientate the mark.
 5           His knowledge of the locus would have helped his
 6       analysis of Y7.  When he was doing the comparison of Y7
 7       he was looking at left thumb prints, the reason given
 8       being because of its position on the doorframe.
 9           The first recorded check of Y7 against Ms McKie
10       appears on elimination page BY4 under marks Y7 to V9.
11       The bundle was being worked on from 10th January and it
12       was just random that he picked up Ms McKie's form for
13       comparison.  He would have looked at the elimination
14       sheet to see who was next to be compared.  On BY4, under
15       the heading COMP, are the initials HM (Macpherson) dated
16       "10th February".  In his statement Mr Macpherson says,
17       at one point, that he identified Y7 on 11th February but
18       later says that he is not sure when he actually got to
19       comparing Y7 with Ms McKie.  The result was phoned out
20       to Police Detective Chief Inspector Heath having been
21       compared by four experts on 11th February.  Y7 was not
22       compared to any other prints after it had been
23       identified as being Ms McKie.
24           According to Mr Macpherson the process he would have
25       followed would have been to look at the mark and the
page 147
 1       elimination form, both under glass.  He would only use a
 2       comparator if he got an identification.  He would have
 3       identified 16 points under fingerprint glasses and then
 4       would have marked them on the comparator.
 5           He used the 16 point standard for both
 6       identifications and eliminations, and says that this was
 7       not unusual to do so for elimination in special cases.
 8           He took a long time to identify Y7 as Ms McKie's and
 9       describes it as a distorted mark, which looked as if it
10       had been twisted and pulled down at the tip.
11           After his identification Y7 would have gone off to
12       be compared as an identification by being placed on the
13       comparator and checked as described in relation to XF.
14       On the reverse of Y7 the initials of the checkers are
15       marked and the word "glass" is noted against Ms McBride,
16       which means that she examined it under glass and not on
17       the comparator.  Mr Macpherson says that she might have
18       written the initials on the photograph to ensure that
19       information written on the comparator screen was not
20       lost.
21           He asked Mr Geddes to do the second check.  He
22       states that he may have told Alister Geddes that the
23       mark was that of a police officer and may have indicated
24       that there might be repercussions because the mark was
25       found so close to the body of the victim.
page 148
 1           The explanation that he gave for conveying this
 2       information to Mr Geddes is that the elimination prints
 3       had been taken on a normal elimination form and it would
 4       not have been readily known that this was a police
 5       officer.  However, it may be observed that on the
 6       elimination sheet Ms McKie was described as "Shirley
 7       Cardwell D/C" and in the elimination print form dated
 8       6th February the name given is "Shirley Cardwell D.C."
 9           Alister Geddes could not find 16 points but was,
10       according to Mr Macpherson, happy with the
11       identification.  Mr Macpherson went to the comparator
12       and discussed his point of the comparison with Mr Geddes
13       but Mr Geddes did not alter his views.  Had Mr Geddes
14       said this was a mis-identification Mr Macpherson would
15       have had to report to the chief inspector but the fact
16       that it was only a difference of opinion as to the
17       number of characteristics in an otherwise agreed
18       identification meant that Mr Macpherson could go to
19       another fingerprint officer.
20           Mr Macpherson does not discuss his contact with any
21       other SCRO officer.  What he says is that the result was
22       phoned out to the police (DCI Heath) having been
23       compared by four experts on 11th February .
24           Part of the writing on the reverse of the image Y7
25       is Mr Macpherson's and part is Ms McBride's.  Fiona
page 149
 1       McBride records that four officers have identified Y7
 2       and they are these two plus Stewart and McKenna.  There
 3       is no explanation why there was no reference to
 4       Mr Geddes.
 5           Mr Macpherson says that after the first call to
 6       phone out the identification he got a return call from
 7       Mr McAllister who wanted to make sure that the
 8       identification had been confirmed.  Mr McAllister told
 9       him there might be some difficulty and to leave it with
10       him.
11           Mr Geddes' evidence: Mr Geddes had viewed the mark
12       in situ at the locus on 17th January.  He noted the
13       position of Y7 and how it was orientated and saw that it
14       was potentially a thumb print.
15           He says that importance was placed on it by the
16       police.
17           The documentation shows that Y7 was compared against
18       police officers up until 7th February.
19           According to Mr Geddes, when Mr Macpherson succeeded
20       in finding the elimination he asked him to do the second
21       check and would have told him that he had eliminated Y7
22       as a police officer.  Mr Geddes says he verified the
23       elimination of Y7 as Shirley McKie's and says that he
24       was happy that it was her left thumb.
25       Mr Macpherson asked him if he managed to get 16 points
page 150
 1       but he said he had not.
 2           Mr Geddes' recollection is that Y7 was handed to him
 3       in paper form and was not on the comparator.  He says
 4       that he initially examined the mark under glasses and
 5       then put it on the comparator.
 6           Mr Geddes describes Y7 as a complex mark and says
 7       that it seems to have been subjected to movement as if
 8       it had been placed on to the doorframe and then twisted.
 9       In his view, if it is looked at up from the core it
10       becomes elongated, indicating severe movement.  He says
11       that when he could not work from top to bottom due to
12       the movement he concentrated on the bottom of the mark
13       and found sufficient in the lower part on the mark to
14       permit him to be able to assign ownership of the mark.
15       He counted ten points of comparison.
16           After he told Mr Macpherson that he was happy to
17       eliminate it he says that Mr Macpherson asked him to get
18       16 points.  Mr Geddes looked at the mark further on his
19       own to see if he could find 16 points.  He and
20       Mr Macpherson then discussed the mark.  Mr Macpherson
21       then used the comparator and marked up the point that he
22       could see.  Mr Geddes explained his difficulty and then
23       marked up what he saw.  He told Mr Macpherson that he
24       was not comfortable identifying 16 points.  He could see
25       the sequence marked by Mr Macpherson but was not
page 151
 1       confident enough of some of the points.  Mr Geddes says
 2       that there was no pressure on him to find 16 points.
 3           At that time Mr Geddes had been qualified for only
 4       three years.  He speculates that he did not manage
 5       to find 16 points because of his relatively limited
 6       experience at the time.  When he looked at the mark
 7       again in 2005 (that's to say when he was charting for
 8       the civil action), he was able to identify 16 points and
 9       he attributes that to the experience that he gained in
10       the intervening period.
11           Mr Geddes says that what he did was an elimination,
12       just not to 16 points.  He did not sign the elimination
13       sheet because Mr Macpherson was looking for a full
14       identification to 16 points.
15           Mr Geddes also recollects a conversation with
16       Mr Dunbar when he told him that he had verified it as
17       the left thumb of Ms McKie but could not get 16 points.
18           Mr Geddes gave a statement to Operation Alba.  In
19       that statement he relates that Mr Macpherson said it was
20       an important mark and it would be beneficial if
21       16 points could be found by the expert second checking
22       it.
23           In his written submission to the Scottish Parliament
24       Justice 1 Committee, Mr Geddes stated that he had no
25       doubt as to the identification of the mark as
page 152
 1       Ms McKie's.  He stated that Mr Macpherson said it would
 2       be better if he could find 16 points.  He asked why and
 3       was given four reasons: (1) the print was found on a
 4       second visit; (2) it was on a doorframe near where the
 5       deceased was found; (3) the investigating officers were
 6       excited at the potential; (4) the donor was a serving
 7       officer who would receive a reprimand from the OIC.
 8       Presumably officer in charge of the case.
 9           Charles Stewart's evidence: Mr Stewart was asked to
10       look at the mark and Ms McKie's ten-print form by Mr
11       Macpherson.  He does not think that he was aware at the
12       time of Mr Geddes' involvement.  He says that he was not
13       given background information but that the photograph may
14       have been marked number 6 with an arrow on it to
15       indicate that it was a left thumb and the direction of
16       the mark.
17           He carried out the comparison using glasses.  He
18       looked at the mark and the known print at the same time.
19       He does not remember using the comparator screen but he
20       would have done so.
21           He says that once he had reached 16 points in
22       sequence and agreement he would have stopped because
23       16 points was the requisite standard and there was no
24       need to go beyond that.
25           It was not a quick and easy mark.  He regarded the
page 153
 1       mark as complex.
 2           Once he completed his comparison he gave the mark
 3       back to Mr Macpherson and told him his conclusion.
 4           Mr Macpherson told him that he wanted four experts
 5       to confirm the elimination to the 16 point standard and
 6       Mr Stewart regarded that as a matter for Mr Macpherson.
 7           He did not, personally, favour the procedure whereby
 8       photographs were marked so as to record who had
 9       identified a mark.  He says there was no standard
10       procedure as to how such matters were recorded.
11           Turning to Ms McBride, Ms McBride was asked by
12       Mr Macpherson to compare Y7.  He told her that it
13       appeared that the mark had been made by a police officer
14       near to the body of Miss Ross so he was taking a belt
15       and braces approach, that is eliminating to a 16 point
16       standard.  He explained to her that Mr Geddes had
17       examined the mark but could not find 16 points of
18       similarity.  She interpreted Mr Macpherson are we are
19       was a difficult one and that she was not under any
20       pressure to find 16 characteristics in sequence and
21       agreement.  She spent a long time on the mark.
22       Mr Macpherson came round and asked her if she were
23       finished but she told him she was not and to go away.
24           She similarly presents the decision to use four
25       experts for an elimination as a belt and braces approach
page 154
 1       that seemed normal to her in a whodunit.  She used linen
 2       glasses rather than the comparator.  She makes the
 3       following observations: there was a breakage across the
 4       mark.
 5           At first she thought that Y7 was a right thumb
 6       before determining it was Ms McKie's left thumb.  She
 7       stated that she had regard to both the plain and rolled
 8       impressions on the ten print form.  She states also that
 9       neither the rolled nor plain impression alone showed the
10       full extent of the crime scene mark, but that when
11       viewed together they did.
12           It was not her practice to take notes.  She does not
13       remember how many points of similarity she found but she
14       suspects that she did not find many over 16.
15           She handed the mark and ten-print form back to
16       Mr Macpherson and told him her conclusion.  He then went
17       to someone else.
18           Although it was not standard practice to initial the
19       back of a photograph, she was aware of another expert,
20       Mr Kenny Graham, did so.  She asked Mr Macpherson if she
21       should follow this procedure.  He thought about the
22       matter and agreed that she should.  The photograph bears
23       this writing:
24           "HMcP 11/02/97, CS, [Fiona McBride's illegible
25       initials followed by 'glass'], AMcK, D/C/I HEATH --
page 155
 1       informed of elimination overleaf by HMcP 1605 on
 2       11/02/97."
 3           The first three sets of initials (those of
 4       Macpherson Stewart and McBride) were written by
 5       Ms McBride.  That would be consistent with that part of
 6       the markings having been made on the image before it was
 7       passed to Mr McMenemy.  Mr McKenna himself says that the
 8       first three initials were on the image before he saw it
 9       and then he added his own initials.
10           Mr McKenna's evidence.  He was asked to look at the
11       mark by Mr Macpherson.  He was not given any information
12       before he looked at it and was not aware of the prior
13       involvement of Mr Geddes.
14           He makes the following observations: he removed Y7
15       from the comparator and carried out a comparison at his
16       desk.  When he was satisfied with his identification he
17       put it back on the comparator to confirm that he had
18       16 points in sequence and agreement.  The comparator
19       would assist him to see if he could identify 16 points.
20       He would have stopped if he found 16 points in sequence
21       and agreement because there was no need to go beyond 16.
22       All that was required for court purposes was 16 points
23       in sequence and agreement.
24           The initials of Macpherson, Stewart and McBride were
25       already on the image.  He added his initials.  Signing
page 156
 1       the back of the photograph is described as a standard
 2       practice and he would do it especially if he had looked
 3       at it on a comparator.  It was a way to track who had
 4       seen it.
 5           He handed the mark and the image back to
 6       Mr Macpherson and told him his conclusion.
 7           He does add that it was not normal to ask four
 8       officers to agree an elimination.  In the past it was
 9       done for suspect eliminations or in the case of an
10       "Internal Enquiry".
11           Looking specifically at the practice of signing
12       photographs, Ms McBride's explanation for marking
13       initials on Y7 can be viewed in the context of the
14       evidence of other SCRO witnesses.  Mr Dunbar describes
15       this is as a practice that is involved in cases where
16       there was a high volume of marks.  It was a means of
17       knowing to whom the case should be sent back for
18       signing, which could be months later.
19           Mr Macpherson had himself marked initials on XF and
20       QI2 and he says that that was his practice.
21       Mr Macpherson in his supplementary statement lists a
22       number of other photographs with initials on them.
23           Mr Geddes says that the diary pages were new and
24       older practitioners were in the habit of marking the
25       photos.
page 157
 1           Mr Stewart describes the marking of initials on Y7
 2       as not standard practice and he disapproved of making
 3       unnecessary markings on photographs.  He accepts though
 4       that it was done to keep track of who had identified the
 5       mark.  He also says that the photos would be marked to
 6       indicate that they had been viewed on the comparator.
 7           Mr McKenna says it was standard practice for special
 8       cases and a means of tracking.
 9           Turning to Mr Macpherson's recollection of the
10       immediate aftermath of the initial elimination.
11       Mr Macpherson phoned out the result.  After that he
12       recalls that he got a call from DI McAllister who wanted
13       to make sure that the identification had been confirmed.
14       He asked Mr Macpherson whether he was definite in his
15       conclusion that Y7 was left by DC McKie.
16       Mr Macpherson replied that he was and that it had been
17       signed up to by four experts, including himself.  He was
18       not asked to recheck.  DI McAllister sais that there
19       might be some difficulty, but to leave it with him.  He
20       did not explain the nature of the difficulty.  There was
21       no follow up to this call.
22           Other material, principally the disciplinary
23       investigation carried out by Chief Inspector Wilson,
24       gives a more complete picture and has the benefit of
25       being closer to the time of the events.
page 158
 1           Looking at Y7 between 11th and the
 2       14th February 1997.  Mr Heath's statement to the Wilson
 3       investigation is dated 19th June 1997.  The case against
 4       Mr Asbury was based on fingerprints and it was
 5       imperative to eliminate as many of the fingerprint marks
 6       as possible to reduce any defence inference that some
 7       other identified person had committed the murder.
 8           After the arrest considerable work was done to
 9       eliminate marks and to trace and alibi those who had
10       access to the house.  In particular, work was being done
11       to eliminate four identified marks: Y7, C8, Z8 and L4.
12           Mr Heath said that two of those four marks were a
13       cause of some concern to him.  They were J7 and C8 found
14       on the right-hand facing of the bedroom door.
15           On 11th February 1997 Mr Heath was in Kilmarnock
16       Police Station and was contacted by SCRO and told that
17       Y7 had been identified as the print of Ms McKie.  In his
18       Inquiry statement Mr Heath says that he was told by
19       McAllister or McDonald.  He contacted Mr McAllister and
20       asked him to inform Ms McKie and require her to provide
21       a statement relating to the presence of her fingerprint
22       in the house.
23           Coincidentally he overheard Ms McKie in
24       conversation in Kilmarnock Police Station.  She was
25       denying loudly that she had been in the house.
page 159
 1           Heath told McAllister to tell her that this was not
 2       a matter for conversation and that she should think
 3       carefully about the identification of the print.  She
 4       was due off until 14th February and Heath decided to
 5       give her that time to reflect.
 6           Meantime on 11th February he instructed McAllister
 7       to liaise with IB and SCRO to verify the situation, and
 8       this included rephotographing Y7.  Mr Heath now has no
 9       recollection of this.
10           Mr Heath says that he gave that instruction despite
11       having no doubt himself because of the paramount
12       importance of fingerprints to the case.
13           On 12th/13th February he was told by McAllister that
14       the identification was not in doubt.
15           On 14th February at about 8.00 am Ms McKie went to
16       see Heath and asked him if the fingerprint
17       identification had been resolved.  He told her that the
18       fingerprint belonged to her.  Ms McKie said that was not
19       possible and vociferously denied having been in the
20       house.
21           Mr Heath had a second conversation with her later
22       that morning, in the presence of Sergeant Shields.  She
23       again vociferously denied having been in the house and
24       was backed up by Shields.
25           Ms McKie wanted to see the print.  Heath arranged
page 160
 1       for it to be viewed that morning by him, McAllister,
 2       McKie and Shields.  McKie repeated her denial and was
 3       supported by Shields.  The atmosphere by then had become
 4       heated.
 5           Mr Heath realised that the matter had to be dealt
 6       with formally.  On return to the police station he
 7       placed an instruction through helps HOLMES for Ms McKie
 8       and Sergeant Shields to provide witness statements.
 9           Ms McKie's statement was provided later that day.
10           Mr Heath then compiled a report for Chief
11       Superintendent Cameron.
12           The narrative in the report by Mr Heath to Chief
13       Superintendent Cameron dated 14th February 1997 is
14       consistent with the above.  In drawing up this report he
15       would have had access to a summary of IB activity at the
16       locus.
17           His Inquiry statement similarly is consistent
18       although he does add two points, under reference to
19       page 62 of his police notebook he is able to add that he
20       had a meeting at SCRO on 13th February to discuss
21       identification of Ms McKie's print, but he cannot now
22       recall who he met.  He states that at some point when
23       Lunardi gave him statements from Sergeant Shields and
24       Ms McKie she informed him that Ms McKie had left her
25       print at a crime scene before.
page 161
 1           Mr McAllister's Wilson statement is dated 26th June.
 2       In his Inquiry statement he says, firstly, that the
 3       elimination of Y7 as the fingerprint of Ms McKie was
 4       communicated to him on 11th February.  He was not
 5       surprised that a police officer's print had been found
 6       because that is not uncommon but when he spoke to
 7       Ms McKie she immediately said that she had not been in
 8       the house and there must be a mistake.
 9           He phoned SCRO and spoke to Mr Macpherson that
10       afternoon, told him that Ms McKie said that the mark was
11       not hers and asked him to double-check and confirm the
12       elimination.  He was subsequently called back and told
13       that it was confirmed.
14           He advised Ms McKie that the identification had been
15       confirmed.
16           He now has no recollection of the mark being
17       rephotographed on 12th February.
18           On 14th February he went with Ms McKie and others to
19       the scene to let her view the mark.  Ms McKie said that
20       she had been at the front porch but not in the house.
21           Ms McKie's evidence.  She generally refers to her
22       previous statements in relation to her contact with
23       Mr McAllister on 11th February.
24           She does likewise for 14th February.
25           She says that when she viewed Y7 at the scene she
page 162
 1       knew from its position and the shape of the doorframe
 2       that it would have been very difficult for it to have
 3       been a left thumb.  She also felt that it could only
 4       have been made after the door had been taken off.  He
 5       explained that to Mr Heath and the others who were
 6       present.
 7           Police Inspector Thomas Fraser of Strathclyde Police
 8       IB has been interviewed by the Inquiry and his statement
 9       is awaited.  He provided a statement to the Wilson
10       investigation in which he is noted as saying on 12th
11       February he received a request from Heath to have a mark
12       rephotographed and, in turn, instructed SOCO Wilson.
13       Fraser says that two photographs were produced.  He says
14       that they were taken to SCRO where they were examined by
15       Macpherson and compared against the elimination form for
16       Ms McKie and the identification confirmed.  Fraser then
17       instructed Mr Wilson to convey the photographs and a
18       photo copy of the elimination form to Mr Heath.
19       Mr Fraser's statement to Operation Alba on 11th
20       September 2000 adds that he had personally taken the
21       photographs to Mr Macpherson.
22           It is understood on 12th February Mr Wilson
23       photographed Y7 in the presence of PC Allan Stevens.
24           Mr Wilson's evidence, he can only now say that he
25       photographed Y7 at some point between 11th and
page 163
 1       14th February but has no reason to doubt 12th February.
 2           He was asked to do so by Mr Heath and also by
 3       Mr Fraser.  He photographed Y7 in the presence of PC
 4       Stevens.
 5           He took the film back to Pitt Street and gave it to
 6       Fraser.  After the film was developed he accompanied
 7       Fraser to SCRO.  They spoke to SCRO staff and he is able
 8       to give a description of one of them.
 9           Mr Fraser put a ten print form with one of the
10       prints circled in red in an envelope and asked him to
11       take it to Mr Heath.
12            PC Allan Stevens speaks to a conversation with
13       Mr McAllister the day before the mark was
14       re-photographed by Mr Wilson and being present when the
15       mark was re-photographed.  There is nothing of note in
16       the reported conversation.
17            Mr Macpherson's statement to the Wilson
18       investigation is dated 24th June 1997.
19           The initial telephone conversation in which he had
20       confirmed the identification of the print to McAllister
21       occurred on 11th February.
22           He confirms that there was contact with Fraser on
23       12th but he does not go so far as to say that he carried
24       out a comparison.  He says he was asked to confirm and
25       did confirm that a photograph that Fraser gave him of Y7
page 164
 1       was the same impression that he had received on 16th.
 2       He says that he was also asked to provide and did
 3       provide a photocopy of Ms McKie's elimination form.
 4           Mr Macpherson now has no recollection of any
 5       "rephoto" being delivered to him or comparing any photo
 6       with the prints.  He does recall that both photographs
 7       were put in the productions book.  However, it is to be
 8       observed that the second image in the court productions
 9       may be that of 18th February.
10           Mr Heath has no memory or not of the mark being
11       rephotographed.
12           The late Chief Superintendent John Scott Thomson
13       gave a statement to Operation Alba.  He interviewed
14       Ms McKie on 17th February.  In his Alba statement he
15       refers to a second photograph as having been taken and
16       also identified as hers.  Mr Stewart speaks from memory
17       and acknowledges that the mark was re-photographed on
18       12th February and believes that fresh elimination prints
19       were taken.  He says:
20           "I think that I subsequently compared the new
21       photograph against the new fingerprint form."
22           Ms McBride has no recollection of the photographs of
23       12th February nor does Mr McKenna.  According to the
24       Mackay report, there is no official record of the
25       12th February images being received at SCRO.
page 165
 1           Mr Hogg says that negatives of these photographs
 2       were found by Mr Thurley on 12th June 2006.  He says
 3       that he produced a report for Assistant Chief Constable
 4       Malcolm and the latter took possession of them.  He
 5       understands that Assistant Chief Constable Malcolm
 6       contacted the Crown.
 7           The negatives of these photographs have since been
 8       found by Strathclyde Police and passed to the Inquiry.
 9       The Inquiry will have them developed.
10           The computer printout that accompanies the negatives
11       suggests that the negatives were first developed on
12       13th February 1997.  The Inquiry will have to hear
13       evidence relating to the re-photographing of the mark on
14       12th February and the Chairman will require to decide
15       whether are confirmatory comparison of the mark was
16       carried out and if so by whom.
17           Turn to Ms McKie's police statement, Ms McKie
18       provided a statement on 14th February in response to the
19       instruction from Mr Heath.  This is the third police
20       statement in her name.  There are two routine police
21       statements, one on 17th January and the second on 21st
22       January.  However, in her Inquiry statement she says
23       that she did not write the statement of 17th January and
24       that it is in the handwriting of Sergeant Shields.  She
25       has not seen the document before.
page 166
 1           So far as Mr Heath is concerned, he submitted a
 2       report to Chief Superintendent Cameron dated
 3       14th February 1997.  Mr Heath had a meeting with Thomson
 4       and Cameron on 14th February and during this meeting
 5       Norman Gibb (Head of Complaints and Discipline) was
 6       contacted by phone.  In a statement to Operation Alba
 7       Mr Heath is recorded as having said that he reported
 8       that he felt compromised relative to Ms McKie.  It was
 9       decided that her absence management would be overviewed
10       by Thomson and the investigation into the presence of
11       her print in the house then passed to Detective
12       Superintendent Malcolm.  Mr Heath says that at this
13       meeting the three officers decided to keep the matter
14       within the division and not to take any formal
15       disciplinary steps at that stage.
16           According to the late Chief
17       Superintendent John Scott Thomson's Operation Alba
18       statement it was agreed following consultation with
19       Detective Chief Superintendent Jim Orr, Chief
20       Superintendent Norman Gibb and Mr Cameron that he
21       (Thomson) should interview Shirley McKie on Monday, 17th
22       February in order to establish "if a resolution could be
23       found to the issue."
24           Mr Heath says that Ms McKie phoned him on
25       15th February.  He told her that she had to report to
page 167
 1       Thomson on the 17th and she told him that she was
 2       convinced it was a terrible mistake. Ms McKie denies
 3       phoning Mr Heath at home on 15th February or any other
 4       day.
 5           Looking now to Y7 in the period 17th to
 6       18th February and including the blind test, on Monday
 7       17th February Ms McKie was interviewed by Chief
 8       Superintendent Thomson.  She again said that it was a
 9       mistake that was made.  Following this meeting
10       arrangements were made to obtain a new (ie, third)
11       photograph to be taken of Y7 and fresh elimination
12       prints.  Ms McKie asked to attend SCRO to see the
13       comparison process.
14           The Thomson statement to Operation Alba presents the
15       re-examination as an initiative by senior officers.  It
16       was agreed at the meeting with Heath and Cameron on
17       Friday 14th that if no resolution could be achieved they
18       would go through the whole process of photographing the
19       mark and demonstrating the identification process to
20       Ms McKie.  This was to be done on 18th February.
21           Superintendent Thomson contacted Chief Inspector
22       O'Neill and requested that he facilitate the
23       demonstration.
24           On 18th February Chief Superintendent Ferry phoned
25       him to say that SCRO had a difficulty with such an ad
page 168
 1       hoc request but would attempt to do so if officially
 2       requested.
 3           Thomson relayed this back to Cameron and understood
 4       that it was decided by Cameron, Orr and Gibb not to make
 5       an official request to SCRO but to accept the findings
 6       of the experts in relation to the new photograph of the
 7       mark and new ten-print from Ms McKie.
 8           Later that day Ferry phoned Thomson to say that
 9       three of his top experts had examined the mark and were
10       adamant that it was Ms McKie's print.
11           There is no support in Mr Heath's statement for the
12       proposition that the re-photographing had been agreed by
13       senior officers on the 14th.  Ms McKie refers to her
14       statement in relation to her interview with Chief
15       Superintendent Thomson but presents the re-photographing
16       of the mark and her attendance at a new comparison
17       exercise as being requests that she made.
18           Whomsoever was responsible for the initiative, it
19       would seem that in considering what happened next it is
20       necessary for three matters to be kept separate.  An
21       examination of the mark and prints by Mackenzie and
22       Mr Dunbar on 17th February, blind testing on
23       17th February, and re-photographing the mark and taking
24       fresh prints from Ms McKie on 18th February.
25           The Mackay report suggests that the common
page 169
 1       background was the contact between Chief Superintendent
 2       Thomson and Chief Inspector O'Neill to facilitate a
 3       demonstration to the identification of Y7.  In effect
 4       O'Neill instigated an informal internal review on
 5       17th February before a third image and second set of
 6       elimination prints were obtained on 18th February and
 7       resubmitted.
 8           The internal review itself comprised two stages: an
 9       examination of the mark and prints of Ms McKie by
10       Mr Mackenzie and Mr Dunbar with the identification being
11       confirmed.  O'Neill instructing Dunbar to conduct the
12       blind test.  Looking specifically at the review by
13       Mackenzie and Dunbar, Mr Mackenzie explains that he was
14       the most senior fingerprint officer in the bureau at the
15       time.  He held the title of Assistant Chief Fingerprint
16       Officer there was no chief, that role falling to the
17       Head of Bureau, a police officer.  That post came to be
18       redesignated as Deputy Head of Bureau, Mr Dunbar was
19       junior to him as quality assurance officer/training
20       officer for the Glasgow Fingerprint Bureau.
21           Mr Mackenzie confirms that the background to the
22       examination on 17th February was the request by the
23       police in Kilmarnock for elimination of Y7 to be
24       checked.  The request came to Chief Inspector O'Neill.
25       The rechecking was done by him and Dunbar.  They acted
page 170
 1       independently.  Dunbar got the material from the file
 2       and was first to do a comparison.  The material was then
 3       passed to Mackenzie.  Mackenzie used an actual size
 4       photographer of Y7 and an elimination print from
 5       Ms McKie.  PS0002 is of a similar quality to the image
 6       that he saw on 17th February but he cannot now recollect
 7       if this was an image with writing on the back.
 8           He used two magnifying glasses augmented by the
 9       comparator.  He confirmed the eliminations as the
10       left thumb of Ms McKie, as did Dunbar.  They each told
11       O'Neill their findings and this was relayed to
12       Kilmarnock.  Mr Mackenzie recalls that before carrying
13       out his comparison, he knew that it had been eliminated
14       as the left thumb print of an officer.  He recalls at
15       the time noting 10 to 11 points in sequence and
16       agreement.  He was approaching it as an elimination and
17       not looking to the 16 point standard for an
18       identification.  Mark Y7 was significantly distorted due
19       to major movement.  There was a fault line from right to
20       left dissecting the mark.  His initial assessment was in
21       the area below the fault line.
22           Mr Dunbar's evidence.  He and Mr Mackenzie were
23       asked by O'Neill to re-examine the mark independently.
24       He knew that the identity of the mark had already been
25       reported to the police as belonging to a fingerprint
page 171
 1       officer and SCRO was being asked to re-examine it.
 2           He discussed the matter with Mackenzie because this
 3       was an unusual request.  He says that he was not given a
 4       specific instruction whether to eliminate or identify
 5       the mark.
 6           He approached this as a quality assurance exercise,
 7       essentially on a non-numeric basis.  There is no magic
 8       number when an expert will be satisfied, the requirement
 9       for 16 characteristics being for court purposes.  He was
10       accordingly not looking in particular for 16
11       characteristics in sequence and agreement.  From memory,
12       he could see at least ten characteristics but less than
13       16.  Subsequently he says that he cannot recall the
14       number of characteristics he found.
15           The mark was quite complex.  He describes seeing a
16       fault line in the mark and was trying to reconcile the
17       top where there was movement or distortion for the
18       bottom.
19           He used glass and also the comparator to see if it
20       would assist with the area above the line, which it did
21       not.
22           He says that the elimination form could have been
23       clearer.  It had not been rolled enough.  He would have
24       preferred to have had another form to compare.  However,
25       despite these shortcomings he says this:
page 172
 1           "There was nothing to suggest using the elimination
 2       form I had on 17th February that this was not the
 3       individual and indeed there was far too much information
 4       to suggest that it was."
 5           His findings are reported in this way:
 6           "I remember seeing an area of concern in the mark.
 7       The area was the presence of a possible in a movement of
 8       distortion in the mark or potentially a double touch.
 9       Everything below this area I considered to be identical
10       and in sequence and agreement with the ridge
11       characteristics form on the elimination of Shirley
12       McKie.  Although I could not account for certain
13       characteristics in the top half of the mark against that
14       form there was far too much detail in the bottom of the
15       mark in sequence and agreement for it not to be this
16       individual.  There has always got to be a reason for
17       things not to be in agreement and I was satisfied that
18       the movement and distortion in that area of the mark
19       meant I couldn't see anything from that area and that
20       was sufficient justification as to why there were
21       disagreements in that part of the mark and the
22       elimination form."
23           He was happy to eliminate the mark as that of the
24       officer.
25           After both had carried out independent examinations
page 173
 1       he and Mackenzie discussed their findings in front of
 2       O'Neill.  This information was relayed to Ferry on that
 3       day.  He recorded his findings in his diary that night.
 4           In 2006 when shown enlargements by the Scottish
 5       Executive lawyers he was able to see characteristics
 6       above the fault line.  One unusual characteristic that
 7       he had not seen in 1997 but saw in 2006 is described as
 8       a hawk-eye.  Its location is consistent with the move or
 9       distortion in the corresponding area of the mark.  His
10       statement is not clear as to what enlargement he is
11       referring to.
12           Turning to the blind test, the following were not
13       involved in the blind test: Mr Stewart and Mr McKenna.
14       Fiona McBride was present in the office when blind
15       testing was being done but was not personally involved.
16       Those on the backshift were involved.  She believes that
17       a list of those involved has since been lost but she
18       names the persons she understands to have been asked to
19       participate.  Mr Geddes was not involved in the blind
20       test but does recall a conversation with Mr Dunbar who
21       asked him his opinion about Y7 and told him that he had
22       verified it as a left thumb print of Ms McKie but could
23       not get 16 points.  Mr Mackenzie presents the blind
24       testing as a training exercise a competency test of the
25       SCRO staff in relation to the complex mark which would
page 174
 1       be good to use in training material.  No blind test had
 2       been carried out before.  Dunbar was to administer it.
 3       Staff were to be told only that it was an elimination
 4       comparison and were to be asked if they would eliminate
 5       the mark.  Mr Dunbar told him the result.  He has no
 6       recollection of the numbers involved but it was at least
 7       four.  The result was that at least two officers
 8       concluded that there was sufficient detail to eliminate
 9       the mark.  He understands that one other asked for
10       photographic enlargements and another had inadequate
11       time to complete the comparison.
12           Mr Dunbar.  He says that the test was instructed
13       by O'Neill or Ferry.  As many people as possible were to
14       look at the mark without being given any detail.
15           He says that he voiced opposition because by then
16       six experts had made a comparison and were of the same
17       view.  He does not know what the exercise would prove.
18       He thinks that the only reason the exercise was being
19       conducted was to find someone who did not agree.  This
20       was voiced to O'Neill but he was instructed to proceed.
21           A comparator was moved into Ferry's room and copies
22       of the mark and elimination form were placed on the
23       comparator.
24           Individuals were asked if they would eliminate the
25       mark.
page 175
 1           Dunbar approached officers to take part.  To
 2       summarise: two officers asked to continue the
 3       comparison, the following morning but the exercise was
 4       stopped when he reached a total of 12 in agreement,
 5       including the 6 who had previously expressed an opinion
 6       with none in disagreement.  The initials of the 12 were
 7       on a slip of paper given to O'Neill.  Those he recalls
 8       were Foley and Bruce.  Halliday was involved at some
 9       stage probably on 18th February.
10           Of those involved statements have been obtained from
11       Jean McClure, Greg Padden, Edward Bruce and Terence
12       Foley.  A statement has also been obtained from
13       Mr Halliday and will be addressed later.
14           What Jean McClure says.  Mr Dunbar asked her to
15       follow him to Ferry's room.  The mark and print were
16       already on a comparator machine.  Dunbar asked her to
17       look at them and tell him what she thought.  He told her
18       nothing else and left the room to let her carry out a
19       comparison.  The screen was clear.
20           She struggled because it was not her normal practice
21       to begin a comparison on the comparison machine.  The
22       mark was poor and she could see there was movement in
23       it.  When Mr Dunbar returned she had no answer for him.
24       She asked to look at the mark again in the morning when
25       her eyes were less tired.  Dunbar said that was fine but
page 176
 1       that was the last she saw of the mark.
 2           Greg Padden says this: he was told that this was
 3       part of a quality assurance test and not a live case.
 4           He was asked to go to Ferry's room by Mr Dunbar.
 5           The images were set up on a comparator screen and he
 6       was asked to give an opinion.  The comparator screen was
 7       already marked with the previous officer's markings
 8       which was a bit sloppy.  He had a quick look and told
 9       Dunbar that he did not think that all the markings were
10       correct and was told to wipe them and start again.  The
11       previous officer may have been Mr Foley.
12           He thought the mark close to insufficient for
13       comparison and was having difficulty finding
14       characteristics between the known and the unknown.  He
15       could not reach a conclusion and asked to see the print
16       under the current circumstances (under glass and not on
17       the comparator).  Dunbar declined and asked him to give
18       his opinion now.  Padden said that he was not prepared
19       to do so and Dunbar said that that was fine.
20           Mr Edward Bruce's evidence.  He says that his
21       recollection is vague.
22           He was asked by Mr Mackenzie or Dunbar to look at a
23       mark on a comparator machine as part of a quality
24       assurance exercise.  He cannot remember whether the
25       screen was clear.
page 177
 1           It was quite a complex mark and he struggled to see
 2       anything at first.  There was quite a bit of movement in
 3       the mark.
 4           From memory he thinks he got 8 points of comparison.
 5       With only 8 points he could not identify in court.
 6           He advised that he thought it was not the best mark
 7       and that he had found 8 points of comparison and he was
 8       told that that was fine.  Operation Alba noted a
 9       statement on 17th August 2000.  He says that he was not
10       given the chance to correct that statement.  That said,
11       it is broadly consistent with his Inquiry statement,
12       though in that he is noted as having said that 8 points
13       would have been sufficient for an elimination.
14           Terence Foley.  He was asked by Dunbar to look at
15       the comparator screen set up in Ferry's office.  The
16       mark and the print were already on the comparator and
17       the screen was blank.  Dunbar asked him to have a look
18       and emphasised that he was not to worry if he could not
19       see anything.  He was asked if he saw enough in the mark
20       to eliminate it with the impression next to it.
21           He studied the marks for about 20 minutes or perhaps
22       longer.  He noticed distortion.  He assumed it was a
23       double touch or twist.  He saw a crease from above the
24       core.  He did not go near the area above that line but
25       concentrated on the area just above and to the right of
page 178
 1       the core.  It was not a very nice mark in quality terms.
 2           He believes that he found ten points in sequence and
 3       agreement and was satisfied to eliminate the mark
 4       without going near the distorted area.  If he had been
 5       asked to make an identification to 16 points standard he
 6       would have needed more time.
 7           He told Dunbar his conclusion.  He disputes that he
 8       was a dater.  He eliminated the mark as that of
 9       Ms McKie.  Later in February 2006 he did a charting for
10       the civil action and was able to find 16 points in
11       sequence and agreement.  He attributes the increased
12       number of characteristics observed to greater experience
13       on his part.
14           The re-photographing of Y7 and fresh prints on
15       18th February.
16   THE CHAIRMAN:  I am wondering is this a fairly lengthy
17       passage?
18   MR MOYNIHAN:  It is.  It is also a new chapter.  So it may
19       be as well to stop.
20   THE CHAIRMAN:  I think we might stop now.  Could I just say
21       that tomorrow morning we go to the earlier time of 10.15
22       to start .
23   (3.55 pm)
24        (Adjourned until 10.15 am the following morning)
25