page   1
 1                                      Wednesday, 3rd June 2009
 2       (10.15 am)
 3            Opening address by MR MOYNIHAN (continued)
 4   MR MOYNIHAN:  In the text are available I am on page 123,
 5       section 4.17.  This deals with re-photographing on Y7
 6       and fresh ten prints on 18th February.
 7           Inspector McAllister briefly describes the events of
 8       18th February seeing that a full identification exercise
 9       was carried out afresh.  He does not know who did the
10       re-checking at SCRO but that afternoon he was told by
11       Superintendent Thomson that the mark had again been
12       identified as that of Ms McKie.
13           On the morning of 18th February Sergeant Shields
14       took a further set of elimination prints from Ms McKie
15       in the presence of inspector McAllister and Inspector
16       Pollock.  In due course this became production 179 in
17       the McKie trial.  The Inquiry has the original of this
18       fingerprint form.
19           Ms McKie then returned to the locus with inspector
20       McAllister, Inspector Pollock, Sergeant Shields and two
21       officers from the identification branch who had not
22       previously been involved in the murder Inquiry.  They
23       were Sergeant Derek Thomson and Constable McKinlay.
24           A label was applied to the wooden door surround and
25       signed by Ms McKie and Inspector McAllister.
page   2
 1           Y7 was re-photographed and the film retained by
 2       Thomson and McKinlay.
 3           A copy of that photograph is the right-hand
 4       photograph on page 1 of production 152.
 5           Constable McKinlay has given a statement.  He
 6       confirms that he was instructed by Chief Inspector Hogg
 7       to rephotograph Y7 on 18th February and did so with
 8       Sergeant Thomson in the presence of Ms McKie.
 9           He took photographs of Y7 with its original label
10       and with a new label initialled by him, Thomson and
11       McKie.
12           The photographs in production 189 were both taken by
13       him that day.
14           He also took general photographs of the vicinity and
15       the photocopies in Mr Wilson's disciplinary report at
16       pages 188 to 189 are photographs that he took.
17           He does not remember to whom he gave his negatives
18       and photographs but he thinks that it may have been to
19       complaints and discipline.  (That would be consistent
20       with copies appearing in the disciplinary report.)
21           The SCRO elimination page relating to police
22       officers records a second check against batch Y7 to V9
23       for Ms McKie and Martin Fairley on 18th February.  The
24       initials are those of Graeme Smillie but his evidence is
25       he was dealing with the remaining, that is to say
page   3
 1       uneliminated marks in the batch and not with Y7.  That
 2       would be consistent with the evidence of Mr Macpherson
 3       that Y7 was removed from the bundle after his
 4       identification of it.
 5           The Wilson report states that the comparison of the
 6       new image and elimination print form was carried out by
 7       Macpherson, Stewart and McBride.  The statement for
 8       Ms McBride does refer to 18th February but reads more
 9       naturally as a reference to 10th and 11th February.
10           The Mackay report lists as those involved Mackenzie,
11       Dunbar and Halliday.  It also states that Mackenzie
12       believed that it was also checked by Mr Macpherson.
13           Mr Macpherson has no recollection of comparing a new
14       image with the prints.  All that he remembers is
15       comparing the further set of elimination prints with the
16       original set and he says:
17           "This was just to make sure that they had been
18       accurately taken."
19           Mr McKenna says that he was not involved in
20       rechecking on 18th February.
21           Mr Mackenzie says that on the morning of
22       18th February he was called to the office of the head of
23       SCRO CS Ferry.  At some stage the meeting was joined by
24       the head of CID.  Mr Mackenzie was told that a
25       re-examination was can be conducted with a new image and
page   4
 1       a further set of elimination prints.
 2           He and Dunbar had a meeting that morning with Ferry
 3       during which Ferry appeared to be angry.  Ferry wanted
 4       to clarify with Mackenzie and Dunbar that they were
 5       satisfied with the elimination because, as he put it, an
 6       officer's career was on the line.
 7           Mackenzie found this unusual because it was
 8       commonplace to find police officers' prints at the
 9       locus.
10           Mackenzie was aware that Ferry had refused a request
11       for Ms McKie to be present during the comparison and he
12       thinks that that decision was correct because it would
13       not be normal to have the officer present.
14           Mackenzie states that the new fingerprint form and
15       photographs were delivered to SCRO after 11.00 am.
16           Independent comparisons were carried out by four
17       officers: Mackenzie, Dunbar, Halliday and a fourth
18       officer whose name he cannot now recall.  His statement
19       to Operation Alba mentions Mr Geddes and
20       Mr Macpherson as possibilities though, he is
21       contradictory in relation to the latter.
22           The second image of Y7 was perfect and was of the
23       same quality as the first one that he had seen.
24           The second set of impressions was better than the
25       first.  In both comparisons he used the plain (not
page   5
 1       rolled) impressions.  The rolled impressions available
 2       on 17th and 18th February were inferior and were
 3       smudged.
 4           He used magnifying glasses and the comparator, as he
 5       had done on the 17th.
 6           Again, he concentrated on the lower part below the
 7       fault line from the core out to the right-hand side.
 8           The improved detail on the second
 9       impressions enabled him to form an opinion based on 12
10       or 13 characteristics.
11           The results of the re-examination were relayed to
12       Ferry by phone.
13           Mr Dunbar's statement.  He examined the material
14       available on 18th February and believes that it was also
15       examined by Mackenzie and Halliday.  After they were
16       finished the material was given to the team led by
17       Macpherson and he assumes that they did their own
18       comparison again, but he cannot confirm this.
19           His conclusion is in these terms:
20           "I do not recall any improvement in the comparison
21       of the new form and photographs of Y7 and I was still
22       satisfied with the area below the fault line and those
23       characteristics that I couldn't account for above the
24       fault line being as a result of movement or double
25       touch."
page   6
 1           He and Mackenzie were called to Ferry's room and he
 2       describes the meeting as a rant: Ferry seemed to be
 3       concerned because of the damage that could be done to a
 4       serving officer.  He assumes that Ferry had got himself
 5       in a state of excitement because of the conversations
 6       that he was having with other officers.
 7           Mr Stewart in his statement says that he was one of
 8       those who compared the second image and set of
 9       elimination prints on 18th February with the same
10       result.  He was asked to do so by Mr Mackenzie.  The
11       only other person he names as having been involved was
12       David Halliday.
13           David Halliday's statement.  He examined Y7 at the
14       request of Dunbar but is not now clear as to the date.
15       The statement noted from him by Operation Alba on
16       23rd August 2000 is consistent with him having carried
17       out a comparison on 18th February because the narrative
18       points to him having examined the mark the day after the
19       "blind" test.
20           The crime scene print and the known print were on an
21       unmarked comparator.  He removed them from the
22       comparator and examined them using magnifying glasses.
23       He also used the comparator.
24           His initial impression was that the crime scene mark
25       was a right thumb but on closer examination concluded
page   7
 1       that it was a left thumb with a lot of distortion giving
 2       the impression of a right thumb.  He saw this from near
 3       the top of the thumb.
 4           The mark was "pretty ropey and tricky"scored at 2
 5       out of 10 on the range of identification.
 6           He was in no doubt.  On the comparator he found 16
 7       characteristics in sequence and agreement.  He found no
 8       points in disagreement, "although there were some
 9       tolerances for movement, given the elasticity of the
10       skin."  There was twisting clockwise to the right to
11       about 1.30 or 2.00.  He signed the screen and told
12       Dunbar that he was satisfied as to the identity of the
13       mark.
14           Chief Inspector Ferry was head of SCRO at the time.
15       He is deceased but on 16th August 2000 he provided a
16       statement to Operation Alba.
17           He is not precise on dates, referring to some time
18       in February 1997, nor does he mention Y7 by that name
19       but he clearly refers to the line of communication that
20       led to it being re-examined.
21           He was told of the identification of the mark as
22       that of Ms McKie by O'Neill.
23           He says that the mark was significant for two
24       reasons: (1) because it was close to the body and (2)
25       because Ms McKie had been involved in a previous
page   8
 1       incident where her print had been found on a bag.  The
 2       statement continues:
 3           "As a result of this the mark had apparently been
 4       examined by four experts prior to me being informed."
 5           His recollection is that Mackenzie had confirmed the
 6       identification before he (Ferry) was informed because he
 7       remembers asking him if he was sure and he said that he
 8       was confident that he was.
 9           Ferry informed Assistant Chief Constable Welsh and
10       Welsh asked him to have the mark re-examining to be
11       absolutely certain before any action was taken -- the
12       implication being that any further action would have
13       been against Ms McKie.
14           He asked O'Neill to have the mark checked again and
15       was later informed that the other experts had examined
16       the mark to and confirmed the identification.  He
17       relayed that back to Assistant Chief Constable Welsh.
18           The Inquiry has explored the question whether the
19       previous incident mentioned in the Ferry statement, in
20       which Ms McKie's fingerprints may have been on a bag in
21       1993, was in the mind of any of the SCRO fingerprint
22       examiners when they were examining Y7 in February 1997.
23           A report into this matter was prepared for the
24       Procurator Fiscal by Detective Superintendent Malcolm on
25       3rd April 1997.  It was forwarded to Crown Office and a
page   9
 1       copy of that report is on the Crown Office file.
 2           One possible history of this particular point is set
 3       out in the witness statement of DC Lunardi.  She says
 4       that the earlier incident was mentioned by Ms McKie to
 5       DC Lunardi on the 6th when SCRO requested elimination
 6       prints from Ms McKie; plainly Ms McKie assuming that
 7       SCRO must already have her prints because of the earlier
 8       incident.  Lunardi says that Heath mentioned this
 9       incident to her during the week when Y7 was identified
10       as Ms McKie's fingerprint.  Heath says that he first
11       heard of this matter when Lunardi told him.
12           Ms McKie says that she did not mention the previous
13       incident to anyone on or around 6th February.
14           Charles Stewart and Terry Foley of SCRO had been
15       involved in 1993 and provided witness statements on this
16       matter on 3rd April 1997 to Mr Malcolm.  Those are on
17       the Crown Office file.
18           It is not clear whether information about the 1993
19       incident would have come to the attention of the SCRO
20       personnel any earlier.  There is no reference anywhere
21       else to this matter being in the minds of the SCRO
22       examiners at the time of the initial identification.
23       There were telephone calls back and forth between police
24       and SCRO, so it is possible this information was
25       imparted in a call.
page  10
 1           Mr Macpherson says that it was only months after his
 2       initial identification of Y7 that he learned of the 1993
 3       incident.
 4           Charles Stewart covers this point in paragraph 138
 5       of his statement.  He has no memory of the 1993 case nor
 6       of his statement dated 3rd April 1997 to Malcolm.
 7           Similarly Mr MacKenzie says that he had no knowledge
 8       of either this prior incident or Mr McKie at the time.
 9       Likewise, Mr McKenna says that he was not aware of the
10       link to the earlier incident at the time and may not
11       have learned of it until 1998 or 1999.
12           Mr Geddes says that he knew nothing of the prior
13       incident.
14           Edward Bruce says that the 1993 incident became
15       common knowledge "after a certain time".  He became
16       aware of it a couple of years after 1997.
17           So the issues arising from chapter 4 are these.
18       When was mark Y7 discovered?  What was its location and
19       orientation?  Had it been placed there before or after
20       the application of aluminium powder?  Had it been placed
21       there before or after the removal of the bathroom door?
22       When was mark Y7 identified, and in particular, had it
23       been identified as belonging to a police officer by
24       23rd January 1997?  What was the precise sequence of
25       events whereby Y7 was identified with Ms McKie's left
page  11
 1       thumb print?  When, by whom and for what reason was it
 2       decided to apply the full 16 point standard to the
 3       matching of this mark with Ms McKie.  What was each of
 4       the checkers told prior to the examination of the mark?
 5       To what extent was the comparator machine relied on in
 6       this process and were the markings remaining before
 7       successive examiners viewed the mark?  What steps were
 8       taken to check the identification of Y7 after it became
 9       clear that Ms McKie denied having been inside 43 Irvine
10       Road, Kilmarnock?  In particular what was the purpose of
11       re-photographing the mark on the 12th and to what use
12       was the photograph put?  What steps were taken by Robert
13       Mackenzie and Alan Dunbar to review the identification?
14       What was the purpose of the "blind testing" exercise on
15       17th February?  Who participated in that exercise and
16       what conclusions ought properly to have been drawn from
17       it?  What steps were taken and by whom to check the
18       identification after the mark was re-photographed and
19       Ms McKie's prints retaken on 18th February?  Were SCRO
20       examiners aware of this incident in 1993 when Ms McKie
21       was alleged to have left a fingerprint on a production
22       and if so at what point did they become aware of this
23       matter?  Again, a list of witnesses whose names have
24       been mentioned in the narrative are listed at the end of
25       that section.
page  12
 1           Turning then to chapter 5, this deals with the Crown
 2       Office, Procurator Fiscal and preparation for the Asbury
 3       trial.
 4           First of all, beginning with Terms of Reference.
 5       The Inquiry's Terms of Reference centre on the
 6       fingerprint evidence.  In reviewing the prosecution's
 7       preparation for the trial it is not intended to consider
 8       the exercise of discretion in deciding to proceed to
 9       trial against Mr Asbury on a charge of murder.  Rather,
10       the review of preparations for the trial is aimed at
11       casting light on the instructions that were given
12       relative to fingerprint evidence and what insight that
13       provided into attitudes towards fingerprint evidence at
14       the time.
15           The initial sequence of reports has already been
16       more fully narrated in chapter 4 and I will now pass on
17       to paragraph 5.1.9.  Just to remind us of the critical
18       day, on 31st January1997 David Asbury, appearing in
19       Kilmarnock Sheriff Court and was fully committed on a
20       charge of murder.
21           I now pick up the narrative after that date so far
22       as the matter being handled by the Crown Office and
23       Procurator Fiscal Service.  The instruction for
24       pre-trial preparation.  On 14th February 1997
25       Mr Gallacher wrote to the Procurator Fiscal advising
page  13
 1       that the case had been provisionally allocated to the
 2       sitting in Glasgow commencing on 12th May.  The last
 3       date for service of an indictment for that sitting was
 4       9th April and Mr Gallacher informed the Fiscal that the
 5       precognition would be required by 31st March.
 6           There are reports by Mr Heath and Mr Orr and initial
 7       contact with Procurator Fiscal and Crown Office by them.
 8           Mr Heath said he submitted a report to Chief
 9       Superintendent Cameron dated 14th February 1997.
10           On 20th February he told Deputy Divisional Commander
11       Thomson that he intended to speak to the Fiscal to
12       inform him about developments concerning the McKie
13       situation.  His notebook also contains reference to a
14       discussion with Detective Chief Superintendent Orr.  He
15       explains that he feels the steps taken after his report
16       on 14th February should have been taken in consultation
17       with the Fiscal.
18           On 20th February 1997 he met Mr McMenemy and told
19       him what he then knew.  His notebook also refers to
20       Mr McGlennan.  The Fiscal said he would inform Crown
21       Office.
22           After that he had a meeting with Thomson and Gibb.
23           This was prior to him going on holiday on 21st
24       February.
25           Now appended to Mr Heath's report of 14th February
page  14
 1       beginning at page 6 is an undated report prepared by
 2       Mr Thomson and addressed to Chief Superintendent Gibb.
 3       Mr Heath has not seen this before, so it must be a later
 4       addition.
 5           Subsequently, a written report was prepared by
 6       Mr Orr.  It is in two parts: a memo dated 24th February
 7       and an addendum dated 26th February.
 8           In the addendum, there is reference to the partial
 9       palm-print Z7: it "has no characteristics with which to
10       give an opinion as to its origin.  It simply has the
11       shape of being part of a palm.  Consequently, it can
12       never be identified."
13           The addendum refers at paragraph 33 to a discussion
14       between Mr Orr and Mr McGlennan on the 26th when the
15       report was delivered to the Procurator Fiscal's office.
16           It records that Mr McGlennan was to arrange a
17       meeting with the Home Advocate Depute, Mr Kevin Drummond
18       QC, to discuss the question of the fingerprint.
19           It concludes with a note that the log keepers could
20       be interviewed on a confidential basis and asked if
21       Ms McKie had been in the house.
22           Mr Heath has no knowledge of anything to do with
23       palm-print Z7.
24           There is no indication that a meeting actually took
25       place between Mr McGlennan and Mr Drummond.  Examination
page  15
 1       of the Crown Office file reveals that Mr McGlennan wrote
 2       to Mr Gallacher in the High Court Unit in Edinburgh on
 3       26th February 1997.  His brief letter refers to "his
 4       recent conversation with Mr Gallacher" and encloses the
 5       report submitted by detective Chief Superintendent Orr.
 6           The matter came to the attention of the Home
 7       Advocate Depute Mr Drummond.  His note, dated 27th
 8       February, is on a slip in the file and is in the
 9       following terms:
10           (1) eliminate her from the murder Inquiry.  (2) once
11       (1) has been carried out the position of DC Cardwell
12       should be reconsidered, including (a) on list of
13       witnesses (b) precognosce on oath (c) further interview
14       by a counselling officer.
15           There follows a letter dated 28th February from
16       Mr Gallacher to Mr McGlennan.  Its contents broadly
17       reflect and expand upon the content of Mr Drummond's
18       note.  The matters covered included the possibility of
19       removing the doorframe to preserve the fingerprint and
20       also a more specific line of Inquiry and I quote:
21           "It would also be useful to obtain information from
22       the Scene of Crime Officers as to whether they can give
23       an opinion as to how fresh the print was and how
24       recently the imprint was made and whether any view can
25       be given as to the circumstances in which the print and
page  16
 1       indeed the palm-print were made.  In other words, what
 2       was the person doing when they left those prints."
 3           Crown Office sought an update by letter dated 26th
 4       March and was informed that the precognition would be
 5       submitted on 3rd April.
 6           Mr McKie and Ms McKie in contact with Chief
 7       Superintendent Cameron.  Chief Superintendent Cameron
 8       submitted a report dated 3rd March to the Deputy Chief
 9       Constable.  This details contact made by Mr McKie
10       initially by telephone on 27th February and then in
11       person on 28th February.  It also records a meeting that
12       Cameron had with Ms McKie on 1st March.  Ms McKie
13       maintained that she had not been beyond the front outer
14       porch.  Mr McKie asked Mr Cameron to rule out the
15       possibility that Ms McKie's print might have been put at
16       the locus by someone else.  Ms McKie stated that one
17       possible solution to the mystery was that her print had
18       been placed there by someone else by mistake, possibly
19       by transfer from the tin that she had found.
20           The Procurator Fiscal, Mr McGlennan, communicated
21       the Crown Office instructions to DS Orr by letter dated
22       3rd March 1997.
23           The response to the Crown Office request was a
24       report dated 1st April by Detective Superintendant
25       Malcolm, countersigned by Orr.  That report in turn
page  17
 1       refers, in section 5, to fingerprint evidence; in
 2       section 6 to an identification bureau report by Chief
 3       Inspector Hogg dated 14th March.  A copy of the report
 4       of 1st April was in due course bound into the Asbury
 5       precognition along with its attachments, including
 6       Hogg's report.  The section of the precognition includes
 7       a copy of the SCRO report dated 27th March 1997, so it
 8       is possible that it is that report that provides the
 9       basis for the observations in section 5 of the report
10       dated 1st April.
11           The report dated 1st April was detailed and included
12       the following.  First, 50 police officers and two SOCOs
13       had been interviewed.  The scene log was found to be
14       inaccurate but, nonetheless, no-one reported Ms McKie as
15       having gone beyond the porch.  Secondly and I quote:
16           "The fingerprint 'Y7' has indisputably been
17       identified as that of DC Cardwell.  That will be the
18       evidence of the SCRO experts."
19           Another quotation:
20           "An opinion was sought on what the person may have
21       been doing to leave the fingerprint in the position it
22       was found.  In the first instance the opinion is that
23       the bathroom door was off.  [It was removed pm on
24       9th January 97].  In the second, a person looking from
25       outside the door, leaning on the right-hand door
page  18
 1       standard with their left hand to gain balance or
 2       purchase when peering round the doorframe or round/over
 3       some obstruction, eg another person, could have left the
 4       print in that position.  However, the fingerprint
 5       officers are not prepared to include such an opinion in
 6       their report."
 7           Chief Inspector Hogg is noted as having been of the
 8       opinion that the door was off.
 9           Reference is made to some forensic testing by
10       Mr Eynon, which established that the timber in the
11       doorframe on which Y7 was found was similar to the
12       timber in other parts of the hallway.
13           Fingerprint examination of the tin did not reveal
14       fingerprints of Sergeant Shields or Ms McKie.
15           Ms McKie was interviewed on 31st March.  She is
16       reported as having accepted that the print was hers but
17       that it had been "planted".  She claimed that her print
18       had been placed at the locus illegally with the tin
19       being part of the scenario.
20           Mr Hogg confirms that he first learned of Y7 when he
21       returned from holiday lasting almost all of February.
22       Mr Orr asked him when everything had been found.  Mr Orr
23       did not request a written report from him but Mr Hogg
24       did send a memo to Superintendent Malcolm dated
25       14th March 1997 detailing when and where certain marks
page  19
 1       were found.
 2           In his statement Mr Hogg comments on the opinion
 3       that the door was off when Y7 was deposited.  The view
 4       he took is that it would have been very difficult to get
 5       the left thumb print on to the doorframe with the door
 6       in place but easy to have done so with the door removed.
 7       It is difficult to be definite.  That said, he did not
 8       form a view as to which hand the fingerprint had come
 9       from, and he accepts that in a statement dated
10       September 1997 he was commenting on the same question on
11       the premise that Y7 was a right thumb print.
12           Mr Thurley says he removed the doorframe on
13       6th March 1997 on the instructions of Chief Inspector
14       Hogg in order to preserve Y7.
15           The report to Crown Office.  The case was reported
16       to the Crown Office on 3rd April 1997.  The Procurator
17       Fiscal's full report on the case is known as "the
18       precognition".
19           Bound in as part of the precognition were copies of
20       the report by Detective Superintendent Malcolm dated
21       1st April, the report by Chief Inspector Hogg dated
22       14th March, the report by Mr Macpherson, Mr Stewart,
23       Mr McBride and McKenna regarding Y7 dated 27th
24       March 1997 containing a final paragraph relating to the
25       orientation of the print, and a statement taken from
page  20
 1       Ms McKie by Detective Superintendant Malcolm on
 2       31st March 1997.
 3           The precognition is a self-contained series of
 4       volumes containing the witness statements taken by the
 5       investigating precognition officer and expert reports.
 6       It opens with a narrative of the facts of the case and
 7       an analysis of the critical evidence, both prepared by
 8       the precognition officer (Mrs Berry), and includes the
 9       recommendation of the precognition officer, and a
10       reasoned note by the PF Depute (Mr McMenemy) endorsing
11       the recommendation that Mr Asbury be prosecuted for
12       murder.
13           The analysis of the evidence by the precognition
14       officer identified a sufficiency of evidence based on:
15       (1) the print on the gift tag (ie XF -- attached to the
16       boxed soap set purchased in 1996; the partial prints of
17       Mr Asbury and Miss Ross on the tin, ie QI2; evidence
18       that the money in the tin was folded in a way considered
19       unique to Miss Ross; and Mr Asbury's disappearance after
20       the murder).
21           To that list the Procurator Fiscal Depute added
22       Mr Asbury's change of position when speaking to the
23       police and the suspiciously long delay before denying
24       that he killed Miss Ross.
25           Both the precognition officer and the
page  21
 1       Procurator Fiscal Depute highlighted the difficulty
 2       posed by the disputed identification of Y7, the
 3       precognition officer observing, and I quote:
 4           "If this situation cannot be resolved before this
 5       case comes to court, the credibility of the fingerprint
 6       officers will undoubtedly be called into question,
 7       probably blowing the only substantial evidence we have
 8       in this case apart."
 9           Then the instruction to indict Mr Asbury and to
10       carry out further inquiries.  Given the time limits
11       fixed in Scots law for trials, the indictment had to be
12       served on Mr Asbury by 10th April and accordingly the
13       Crown Office was working to a short deadline.
14           The potential difficulties with Y7 was immediately
15       appreciated, as is apparent from my handwritten note of
16       3rd April 1997.  That note instructs that Mr Asbury be
17       indicted in the High Court.  It records that the matter
18       had been brought to the attention of the Lord Advocate,
19       and instructs certain further inquiries.  The
20       Lord Advocate was then Lord Mackay of Drumadoon.  It is
21       apparent from this, and another, undated, note, that the
22       concern that I had at this point was that Ms McKie might
23       have moved the tin from the house of the deceased to the
24       house of the accused.
25           Within Crown Office the task of preparing the
page  22
 1       indictment, and hence preparing the case for trial, was
 2       assigned to Ms Climie, a Fiscal in the High Court Unit.
 3           The investigations instructed in Crown Counsel's
 4       note of 3rd April are reflected in a letter dated
 5       7th April 1997 from Ms Climie to Ms Elizabeth Berry, the
 6       precognition officer in the Kilmarnock Procurator
 7       Fiscal's Office.  It also contains instructions as to
 8       other enquiries and aspects of preparation of the case.
 9       The letter records that Crown Counsel was given further
10       consideration to the fingerprint evidence and in the
11       meantime asked Mrs Berry for a response to the points
12       raised in Mr Gallacher's letter of 28th February.
13           On 9th April the Crown Office forwarded the
14       indictment to the Procurator Fiscal for service.
15           A further detailed letter was sent by Ms Climie to
16       Ms Berry with instructions relating specifically to Y7.
17           The file contains a draft dated 10th April.  It was
18       forwarded to Mr Drummond for revision.  It is understood
19       that the file copy contains handwritten revisions by
20       Mr Drummond and the Deputy Crown Agent.
21           Mr Drummond asked Ms Climie to consult me on the
22       draft because I had expressed an interest in seeing
23       this.
24           The Crown Office file contains a copy letter dated
25       11th April marked as faxed that date.  I would appear to
page  23
 1       have been shown a revised draft dated 11th April and I
 2       made a suggestion about the preparation of a master
 3       table.
 4           We then turn to fingerprint inquiries instructed by
 5       Crown Office.  Statements from personnel in Procurator
 6       Fiscal Service are awaited.
 7           Mr Heath and his contact with the defence.  Mr Heath
 8       was instructed by Superintendent Malcolm on 1st April to
 9       despatch a precognition letter from McIntosh & Wyllie,
10       David Asbury's solicitors, to Ms McKie.  He spoke to
11       Mr McMenemy of the Fiscal's Office before doing so.
12           On 30th April Divisional Commander Cameron told DCI
13       Heath that Ms McKie was denying having received a
14       precognition letter.  Cameron instructed Heath to
15       arrange for a copy to be delivered, which he did.  After
16       checking with the PF's office, Heath phoned "Bill"
17       Dunlop of McIntosh & Wyllie (Asbury's solicitors) to get
18       a copy of the letter and arrange for it to be delivered.
19           In his supplementary statement to Alba it is said
20       that when he contacted "Bill" Dunlop of McIntosh &
21       Wyllie, Mr Asbury's solicitors, Mr Heath told him that
22       it would be in their interests personally to precognosce
23       Ms McKie.
24           A statement was taken by Alba from Lesley Dowdalls,
25       a partner in McIntosh & Wyllie, and it confirms that
page  24
 1       Mr Heath did contact the defence and suggest that they
 2       precognosce Ms McKie and they did that in early May.
 3       The contact was made with a trainee, Ross Dunlop.
 4           In that statement Miss Dowdalls is recorded as
 5       explaining that this led the defence to instruct
 6       Mr Graham who confirmed the identification of Y7 as the
 7       fingerprint of Ms McKie.
 8           Ms McKie says the defence agents were unaware that
 9       she was disputing that the mark had been made by her and
10       that they appeared astounded.  It seems that neither the
11       Procurator Fiscal nor the police had disclosed this
12       matter to the defence before she did.  Her previous
13       statement does record the defence solicitors as having
14       told her that Mr Heath had told them that she had
15       something interesting to tell them.
16           Now turning to 7th April, Mr Heath says that he left
17       a social event on 4th April at which Ms McKie was
18       present because he could have been placed in a
19       compromising position.  He was later informed of unrest
20       caused by remarks made that night by Ms McKie.  He
21       decided to submit a report and did so on 7th April.
22           Mr Heath indicates that he wanted to leave the CID
23       as a result of the whole matter and that he was
24       appointed to the Force Inspectorate but later returned
25       to Kilmarnock as detective superintendent in 2000.
page  25
 1           Turning to the disciplinary proceedings, by the date
 2       of the trial a disciplinary investigation led by
 3       Mr Wilson had been commenced in relation to the possible
 4       misconduct of Ms McKie.  The investigation was set up on
 5       8th May and an investigation form under the Police
 6       (Conduct) (Scotland) Regulations was served on Ms McKie
 7       that day.  Ms McKie deals with this in paragraph 80 of
 8       her statement by referring back to her prior statement.
 9           Accordingly, when Ms McKie gave evidence at the
10       Asbury trial on 28th May she was already under
11       disciplinary investigation.
12           Turning now to examination of the doorframe, Mr Hogg
13       says that on 8th May the Procurator Fiscal, Mr McMenemy,
14       brought the doorframe to his office for Mr Hogg to
15       examine in the context of Ms McKie's allegation that the
16       fingerprint had been planted.  He told the Procurator
17       Fiscal that he was not an expert on planting.  He says
18       that it appeared to him to be a good print but he could
19       not comment on planting.
20           The fingerprint reports by Scottish Criminal Record
21       Office.  The preparation of the fingerprint reports for
22       the trial in HMA v Asbury will be dealt with in chapter
23       6.
24           I then look at defence investigations of
25       fingerprints.  Mr Asbury was represented by McIntosh &
page  26
 1       Wyllie who instructed Malcolm Graham to provide a report
 2       in relation to the fingerprint evidence.
 3           He agreed the SCRO identifications of the critical
 4       fingerprints, XF, DQ2, QI2 both Mr Asbury and Miss Ross
 5       and Y7.  Mr Asbury's present solicitors, Digby Brown,
 6       have observed that Mr Graham would appear to have been
 7       supplied two reports to McIntosh & Wyllie.  The material
 8       difference between the two reports is that in the copy
 9       bearing the footer date 8th May and has Y7 as a right
10       thumb whereas in the copy with a footer dated
11       17th May 1997 the reference is to a left thumb.
12           Turning to the trial, there is no note on the Crown
13       Office file of any further involvement by Crown Office
14       between the date of the letter 11th April and the start
15       of the trial.
16           A note by the trial depute, Mr Allen Dewar, to the
17       Lord Advocate reports that he received the papers
18       shortly before the sitting was due to commence without
19       any prior notice.  The trial proceeded between 16th May
20       and 4th June 1997 and Mr Asbury was convicted.
21           A concise summary of the proceedings, with some
22       incidental observations, is contained in the note
23       prepared by Mr Carle, the police observer.
24           The defence did not contest the SCRO evidence
25       regarding the identification of the critical
page  27
 1       fingerprints.  Mr Macpherson and Mr Stewart gave
 2       evidence but neither was cross-examined by the defence.
 3       The transcript of their evidence is produced and records
 4       the absence of cross-examination of Mr Macpherson and
 5       Mr Stewart.
 6           Mr Graham was called as a defence witness though he
 7       confirmed in cross that he had no doubt about the
 8       identification of QI2 as the print of Miss Ross, and Y7
 9       as that of Ms McKie, the thrust of his evidence was
10       directed to the possible means by which Miss Ross' print
11       could have been planted on the tin, the possibility that
12       he left standing being that it could have been placed on
13       the tin by contact with the corpse in the mortuary.
14           The defence case to the jury included the suggestion
15       that Miss Ross had not come in to contact with the tin
16       during her lifetime and that the part of QI2 that was
17       identified as her mark had been placed on the tin by
18       police officers at the mortuary.  Y7 was cited by the
19       defence as a second print, the circumstances of the
20       deposition of which were contested.
21           It is not thought that this particular chapter
22       raises issues other than providing the narrative that
23       informs the chapter that I am next about to turn to
24       which is chapter 6, looking now in detail at the
25       preparation of reports by the Scottish Criminal Record
page  28
 1       Office for both Asbury and McKie trials.
 2           This chapter will address the matter in which the
 3       SCRO witnesses prepared productions lodged in the two
 4       criminal trials on the basis of which evidence was
 5       given.
 6           This chapter will discuss the specific reports and
 7       productions prepared for the cases of Asbury and McKie
 8       and will touch on some reports that were prepared but
 9       not lodged.
10           In addition, this chapter will look more generally
11       at the practice within SCRO at the time in relation to
12       the preparation of fingerprint evidence in solemn cases
13       (that is to say, cases before a jury), with specific
14       reference to the purpose of enlargements and the
15       accuracy of the enlargements produced by the charting
16       computer.
17           Now looking firstly at Y7 reports in HMA v Asbury,
18       the Inquiry has recovered the original image of Y7 with
19       manuscript writing on the back used in the
20       identification of Y7 as Ms McKie's print.
21           The Inquiry also has the negative of that image.
22       The original image with writing on the back was not used
23       as a production in either trial.
24           I will now discuss the first of the reports dated
25       27th March 1997 which is now on the screen and it is
page  29
 1       Inquiry database code DB0004.
 2           The first joint report of Y7 is dated 27th
 3       March 1997.  It is signed by Macpherson, Stewart,
 4       McBride and McKenna.  It is based on a comparison of a
 5       photograph of Y7 dated 16th January 1997 and an
 6       elimination print form for Ms McKie dated
 7       7th February 1997.  It also contains a reference to the
 8       "locus photograph of the impression Y7 in situ" and
 9       contains an expression of opinion as to the orientation
10       of the print.  That passage is now highlighted on the
11       screen and if I can just read it it says:
12           "From examination of the photograph impression
13       itself and the examination of the locus photograph of
14       the impression Y7 in situ, it was ascertained that the
15       top of the left thumb print which was identified was
16       facing in an inward direction relative to the bathroom."
17           The Inquiry has been unable to obtain an original
18       image of the "locus photograph of the impression Y7 in
19       situ."
20           Mr McKinlay's statement to Chief Inspector Wilson
21       would vouch the fact that on 18th February he took a
22       couple of general shots of the position of the print and
23       the Wilson report contains what may be a poor photocopy
24       of two such photographs at page 189.  This has been
25       confirmed by Mr McKinlay in his statement to the
page  30
 1       Inquiry.
 2           A copy of that first report was included in the
 3       precognition submitted to Crown Office.  It may be the
 4       report mentioned in paragraph 15.1 of the Malcolm
 5       report.  It does not seem to have been used in the trial
 6       and was also not lodged as a production in HMA v McKie.
 7       The detailed letter from Ms Climie dated 11th April 1997
 8       does refer to this first report in paragraph m (ii)
 9       where she says:
10           "A second examination of Y7 was carried out on
11       12th February, (presumably when the doorframe was still
12       in situ) and a second comparison carried out.  Evidence
13       regarding this should be included.  The report at
14       page 54 of the precognition [ ie 27th March] appears to
15       be based on a comparison between the original photograph
16       of Y7 and the elimination prints.  A second report
17       should be prepared based on the second photograph of Y7
18       and all necessary IB and SCRO witnesses and productions
19       added."
20           Turning to the report dated 10th April, the
21       production used in HMA v Asbury was a report by the same
22       signatories dated 10th April 1997.  That is production
23       154 in HMA v Asbury.
24           It bears to be a report of the comparison of an
25       elimination print form for Ms McKie dated
page  31
 1       7th February 1997 and two images of Y7, one dated
 2       16th January and one dated 18th February.  In court it
 3       was accompanied by a book of photographs, production
 4       152, containing two images of Y7 and a charted
 5       enlargement relative to the fingerprint form production
 6       153.  The report itself says that the enlargements were
 7       prepared to illustrate the identification.
 8           The reports dated 27th March and 10th April both
 9       refer to an elimination print form dated
10       7th February 1997.  This is presumably a reference to
11       the prints taken on 6th February that have a SCRO date
12       stamp of 7th February.  That is the print form lodged as
13       production 153 in the Asbury and McKie cases.  The
14       Inquiry has the original of this print form.
15           Production 152 in HMA v Asbury contains two original
16       images of Y7: the one to the left is undated but is
17       presumably the image dated 16th January.  That must be a
18       mistake.  The other is dated 18th February 1997 and the
19       Y7 label is one with Ms McKie's initials.
20           There is general evidence about these two reports of
21       27th March and 10th April.  Mr Macpherson says that he
22       prepared all of the productions in HMA v Asbury.  The
23       reason why there were two reports (7th March and 10th
24       April) is probably that they were asked, he thinks by
25       the Fiscal, to do a preliminary report detailing Y7 in
page  32
 1       situ.  The 10th April report is the normal court report.
 2           The photocopied photographs of Y7 in a wider context
 3       are poor copies but may be the photographs referred to
 4       in the 27th March report.
 5           Specifically in relation to the 27th March 1997
 6       report, first of all, the reference to the locus
 7       photograph and the expression of opinion as to the
 8       orientation of the print in this report does not appear
 9       in any other SCRO Y7 report.
10           The Inquiry has been a unable to obtain an original
11       image of "the locus photograph of the impression Y7 in
12       situ" but in the Wilson report there may be a poor
13       photocopy of that photograph.
14           Mr Macpherson explains the comment on the
15       orientation of the print in paragraph 47 of his
16       supplementary statement.  The part of the thumb that
17       made the mark was facing into the bathroom when the mark
18       was made, from which it may be inferred that the person
19       who made the mark was looking into the bathroom.
20           Mr Stewart describes that comment as non-standard
21       and says that the Procurator Fiscal would have asked for
22       it.  He does not know why that paragraph was omitted
23       from later reports.
24           Mr McKenna has no memory of this paragraph.  It is
25       not standard.  He does not know why it was put in but
page  33
 1       presumes that it was at the direction of the PF.  He
 2       does not know why the report of 10th April was prepared.
 3           Miss McBride similarly cannot remember why two
 4       reports were prepared.  She cannot remember why the
 5       locus photograph was mentioned on 27th March report, nor
 6       why that is omitted from the 10th April report.  She
 7       assumes that the reports reflected instructions from the
 8       Fiscal.
 9           Y7 reports in the later trial, HMA v McKie.  The
10       Asbury production, that is 152 to 154, were lodged by
11       the Crown as productions in HMA v McKie.  There also was
12       a report dated 29th January 1999.  For the purposes of
13       that trial the Crown also produced a Y7 report by the
14       same signatories dated 29th January 1999.  It was
15       production 190.  It bears to be a report of the
16       comparison of an elimination print from Ms McKie dated
17       15th March 1999 with two images of Y7, one dated
18       16th February(sic) and one dated 18th February.  It was
19       accompanied by a fingerprint form production 187 and an
20       illustrative booklet production 189.
21           The fingerprints on the fingerprint form 187 were
22       taken on 6th March 1998 but the form has a SCRO date
23       stamp of 15th March hence the date referenced in the
24       report.  The Inquiry has the original.
25           Bring up DB0012 and this is page 5 to begin with.
page  34
 1       There are two original images of Y7 in production 189
 2       displayed one above the other.  Both images are undated.
 3       The top image has a label for Y7 that does not include
 4       Ms McKie's initials but is different from the image with
 5       a similar label included to the right in production 152.
 6       The bottom image has a Y7 label initialled by Ms McKie
 7       and may be the same as the image to the left in
 8       production 152.
 9           PC McKinlay re-photographed Y7 on 18th February.  In
10       his statement he refers to production 189 as book "L2".
11       His evidence is that the two photographs in production
12       189 which are on the screen were taken by him on
13       18th February 1997.  In his evidence-in-chief at
14       HMA v McKie Mr Stewart said the illustrative enlargement
15       in production 189 had been based on the photograph at
16       the bottom of page 1 of the booklet, which would appear
17       to be that of 18th February.
18           The preparation of the report dated 29th
19       January 1999 would be consistent with the Crown Office
20       instruction dating back to 30th January 1998 that
21       Ms McKie be fingerprinted on arrest and fingerprint
22       officers carry out a further comparison of Y7 relative
23       to that print form.  On 25th January 1999, Mrs Greaves,
24       the local Fiscal, told Ms Climie that she had passed the
25       instruction on to SCRO.  There may be some variation in
page  35
 1       the images of Y7 included in the booklets (that is
 2       productions 152 and 189) but the principal difference
 3       may be that the earlier production was prepared relative
 4       to the elimination fingerprints taken in February 1997,
 5       whereas the later report was prepared relative to the
 6       arrest prints taken in March 1998.
 7           Mrs Greaves confirms that the SCRO witnesses were
 8       not asked to compare Y7 against the arrest ten-print
 9       form until January 1999 and that they dealt with that
10       request expeditiously.
11           Mr Macpherson is not sure if he produced the
12       productions for HMA v McKie but he imagines that he
13       would have prepared most of them.  In paragraph 168 of
14       his statement he discusses the joint report dated 29th
15       January 1999 and the book of photographs L2 (production
16       189).  When his statement was being taken he used
17       slightly different Inquiry hearing database references
18       and I converted them from his statement to this analysis
19       but there is a mistake in the table.  Production 189 in
20       the first line under the analysis reference there's a
21       reference DB0009.  That should be DB0012.
22           So going back to the evidence of Mr Macpherson,
23       6.3.19, and I am going to bring up a sheet DB0012,
24       page 6.  Again, this is a sheet from production 190.
25       Mr Macpherson thinks he prepared the Y7 joint report
page  36
 1       (production 190) and the accompanying book of
 2       photographs (production 189) and adds this:
 3           "This was because we had to produce
 4       enlargements ..." and the sheet on the screen is the
 5       enlargements.  He said:
 6           "This was because we had to produce enlargements
 7       from the charge form once Shirley McKie was charged with
 8       perjury.  We revisited our initial assessment to that
 9       extent, but we were not carrying out a fresh
10       comparison."
11           Mr Stewart says that he prepared the report and the
12       productions, but that Mr Macpherson prepared the charted
13       enlargement.  At some point the charge form fingerprints
14       dated 15th March became available and Mr Stewart carried
15       out a new comparison of Y7 against that form.  As with
16       other reports, productions and enlargements, he would
17       have ensured they were accurate before he signed them.
18       Ms McBride says she carried at a full comparison of the
19       marks relative to the fingerprint form dated 6thMarch
20       1998 and ensured the report was accurate.  Mr McKenna is
21       to the same effect.
22           I turn to the second production, production 180.  A
23       third book of Y7 images and a charting was lodged as a
24       production in the McKie case, production 180.  It bears
25       to have been signed by Mr Macpherson and Mr Stewart.  It
page  37
 1       contains two images of Y7.  The right-hand one is
 2       similar to the image dated 18th February in production
 3       152 and 189.  The one to the left differs from the
 4       corresponding images used in production 152 and 189.
 5       Mr Macpherson says the reason why there are two reports,
 6       27th and 10th April 1997, is probably that they were
 7       asked, he thinks by the Fiscal, to do a preliminary
 8       report detailing Y7 in situ.  Production 180 may have
 9       been prepared as part of that preliminary investigation.
10       He is not sure why it is signed by only two people but
11       it may only have been for information.  However, the
12       fact that a preliminary report may have been requested
13       might explain why there were three lots of enlargements
14       for Y7: a preliminary set, one for the Asbury trial and
15       one for the McKie trial.
16           Mr Stewart cannot explain why production 180 --
17       before I read this can we bring up again DB0004.  In
18       fact, it will be page 3, I suspect.  So this is a copy
19       of production 180.
20           Mr Stewart cannot explain why production 180 was
21       prepared.  As to the suggested link with the report
22       dated 27th March, Mr Stewart says that he cannot
23       remember if a book of productions was prepared specific
24       to that report.  The copy of the report available to the
25       Inquiry, which is on screen, has "report without book"
page  38
 1       written on it.  That can be seen in the top right-hand
 2       corner.  He says that that note is in his hand writing
 3       and was written by him when he was collecting evidence
 4       for the HMIC Inquiry.
 5           I have finished with that document.
 6           Mr Stewart in evidence-in-chief during HMA v McKie
 7       testified that he had taken part in an exercise when Y7
 8       was compared against the fingerprint form dated
 9       18th February (production 179) and production 180 was
10       produced as an illustration of that exercise but using
11       an earlier fingerprint form instead of production 179
12       because the latter was over-inked and distorted.
13           Mr Macpherson gave evidence after Mr Stewart.  The
14       Advocate Depute's questions proceeded on the premise
15       production 180 was referable to a second examination of
16       Y7 carried out by reference to the fingerprint form for
17       Ms McKie dated 18th February.
18           Dealing with differences in the charting in the Y7
19       reports, all of the chartings in these reports were done
20       to the 16 point standard.  However, there were
21       differences between the chartings.  While the chartings
22       in productions 152 and 180 appear similar the chartings
23       in those productions differ from production 189.
24       Point 14 on productions 152 and 180 were not marked on
25       production 189.  Point 10 on production 189 was not
page  39
 1       marked on either 152 or 180.
 2           The end was that the SCRO witnesses in the McKie
 3       trial spoke to a total of 17 points in agreement.
 4       Viewed another way, the witnesses cited a different
 5       combination of 16 points in each of the two cases.
 6           Mr Macpherson identified these differences in the
 7       chartings in productions 152 and 189 in his
 8       evidence-in-chief in the McKie trial.  Mr Stewart did
 9       likewise in his evidence-in-chief on 5th May 1999.
10       Mr Macpherson dealt with the contrast between
11       productions 180 and 189 in a precognition for the
12       Scottish Executive.  I will produce later in this a
13       table reconciling the numerical references to the
14       various characteristics highlighted in productions 152,
15       180 and 189.
16           Turning to planting of mark Y7, Mr Stewart says that
17       he and Mr Macpherson produced a report into the
18       possibility that Y7 had been planted.  They concluded
19       that there had been no tampering.
20           Turning now away from Y7 to look at the other prints
21       XF, QD2 and the other marks identified as Mr Asbury.
22       The marks identified as David Asbury including XF, QD2,
23       QI2-part and QL2 were the subject of a joint report
24       production 100 in HMA v Asbury.  It is dated
25       17th March 1997 and signed by Macpherson, Stewart,
page  40
 1       McBride McKenna.  Production 97 is the Asbury print form
 2       referred to in the report.  Production 98 contains the
 3       images of XF in reversal, QD2, QI2 and QL2.  Production
 4       98 also contained a charted enlargement of XF and an
 5       Asbury print.  The Inquiry has only photocopies of the
 6       Asbury prints.  The Inquiry has the gift tag and
 7       production 16 in HMA v Asbury, a book of photographs of
 8       the Christmas present.  In addition to the photographs,
 9       the Inquiry has recovered an original image of XF
10       containing manuscript writing and a reversal.
11           Mr Macpherson says that he prepared both the joint
12       report and the charted enlargement of XF.  The
13       enlargements of QD2 were produced later, as best he can
14       recollect after the identification of QD2 was disputed.
15           Mr Stewart says that he would have satisfied himself
16       that the enlargement and the characteristics noted
17       therein were accurate.  Ms McBride says the same, as
18       does Mr McKenna.
19           Next looking to QI2.  QI2 is a cluster of marks in
20       part identified as that of Mr Asbury and also in part
21       identified as that of Miss Ross.  The part matched to
22       Miss Ross was addressed in the joint report production
23       101 in HMA v Asbury dated 17th March 1997 signed by
24       Macpherson Stewart McBride McKenna.  Production 96 is
25       the Marion Ross print form referred to in the report,
page  41
 1       production 99 is the accompanying book of photographs
 2       containing an image of QI2, production 99 also contained
 3       a charting comparison but the Inquiry has only recovered
 4       a relatively poor photocopy of this production.
 5           In addition to these productions the Inquiry has
 6       recovered the original image of QI2, with writing
 7       relating to the matches with Miss Ross and Mr Asbury and
 8       the enclosing bag relating to the Ross identification.
 9       The Inquiry also has the originals of the fingerprint
10       form for Miss Ross.
11           Mr Macpherson says that he was the author of the
12       joint report relating to QI2 and also that he produced
13       the charted enlargement.  Mr Stewart agrees that
14       Mr Macpherson prepared the charting but he too claims
15       authorship of the report.  This may not be material
16       because the report (unlike the charting) is a pro forma.
17            Mr McKenna says that he must have looked at QI2
18       first when either signing off the case envelope or
19       signing the report.  He would have used a glass and
20       possibly a comparator.  He would only have looked at the
21       images referred to in the report.  He cannot remember
22       looking at the charted enlargement but he has signed it,
23       which means that at the time he was satisfied that it
24       accurately showed the same 16 points in sequence and
25       agreement in the mark and Miss Ross' print.
page  42
 1           Why were Miss McBride and Mr McKenna signatories to
 2       the joint report, even although they were not among
 3       those who initially identified QI2?  Mr Macpherson
 4       explains that it may have been in part due to the fact
 5       that McBride was his general substitute for evidence at
 6       trial and McKenna was Stewart's.  It may also have been
 7       due to the fact that they had been involved with Y7,
 8       which was known to be disputed, and bringing them in to
 9       QI2 meant that they could deal with the case in its
10       entirety.
11           Mr Stewart confirms that SCRO operated a pairing
12       arrangement with substitutes to ensure that witnesses
13       were available at all times.  The allocation of
14       witnesses was a management decision for Mr Mackenzie.
15           This is the evidence also of Ms McBride, Mr McKenna,
16       Mr Dunbar and Mr Mackenzie.
17           Other marks.  In the letter dated 11th April 1997
18       the Crown Office instructed the local Fiscal that all
19       marks had to be carefully checked and lodged.  I have
20       given details of the production references for all the
21       reports.  However, it is not considered necessary for
22       this Inquiry to look into those reports.
23           Turning to a demonstration booklet in HMA v McKie,
24       in the trial HMA v McKie the Crown lodged a
25       demonstration booklet "A brief insight into fingerprints
page  43
 1       and fingerprint identification", production 181.  This
 2       is signed by Macpherson and Stewart as is the
 3       accompanying narrative in the Crown precognition.
 4           Accordingly, for the McKie trial the SCRO witnesses
 5       had available to them both generic material and material
 6       available specific to the mark in question in that case.
 7           Procedures in relation to court reports generally
 8       and also in HMA v Asbury.
 9           Mr Macpherson explains the procedure generally
10       positive identifications were placed in a case envelope.
11       Put up on screen an example of a case envelope and this
12       is the case envelope relating to the relevant
13       fingerprints for us.  Positive identifications were
14       placed in a case envelope.  At the end of all the
15       comparison work the envelope would be signed by the four
16       experts who made the majority of the identifications and
17       those who signed would have to be satisfied that they
18       agreed with all the identification marks in the
19       envelope.  In this instance the case envelope is DB0529,
20       which is on screen, and it bears the date
21       14th March 1997.  If I try, I may be able to highlight
22       that for you.  A letter would be sent out signed by the
23       head of SCRO to the Senior Investigating Officer setting
24       out all the work that had been done on the case.  When
25       the case was coming to trial, SCRO would be asked to
page  44
 1       prepare the productions for the case.  SG0457 is an
 2       example of the SCRO preparation of evidence form.  The
 3       person receiving the request to prepare productions
 4       (normally a clear case) would prepare this pro forma
 5       document and it was then a decision for management to
 6       decide which experts to allocate as the expert witnesses
 7       for the trial.
 8           Mr Macpherson deals specifically with the Asbury
 9       case.  He refers to the SCRO preparation of evidence
10       form and then the case envelope relating to the
11       identification marks is DB0529.  It is signed -- and he
12       is now referring to the area which I can highlight -- it
13       is signed and it is thought to have been signed by
14       Mr Macpherson, Mr Stewart, Mr Geddes, Mr McKenna and
15       Miss McBride.  The case envelope also records his choice
16       of marks to be enlarged -- if memory serves me correctly
17       it's there highlighted -- XF in the case of Asbury and
18       QI2 in the case of Miss Ross.
19           In the event, the Procurator Fiscal's instruction
20       was to cover all impressions: those identified, those
21       that were fragmentary and insufficient and those that
22       were outstanding.  Every one was identified and a
23       separate enlargement produced.  Mr Macpherson says that
24       this instruction from the Procurator Fiscal meant that
25       all of the enlargements had to be signed off by four
page  45
 1       experts to the 16 point standard.
 2           As far as contemporaneous documents are concerned,
 3       the Inquiry has recovered the SCRO request form relating
 4       to reports but it is unilluminating beyond recording
 5       that request came from a letter from the Procurator
 6       Fiscal dated 18th February 1997.  Mr Mackenzie confirms
 7       that this form bears a date of 20th February which is
 8       two days after his re-checking of Y7 on 18th February.
 9       Equally, the Inquiry has the Strathclyde
10       Police identification branch photographic assignment
11       forms but they do not add any detail.
12           It is the case envelope that is on the screen that
13       the Inquiry has and it is one of a related series of
14       case envelopes we have.  The original case envelope is
15       DB0529 and it bears the date 14th March 1997.  The
16       entries are explained by Mr Macpherson.  The next
17       sentence is going to refer to an area I can highlight.
18       It details the marks that were identified and those that
19       were eliminated, including XF, QD2 and QI2 (both Asbury
20       and Miss Ross).  This specific envelope does not deal
21       with Y7 and none of the other envelopes on their face
22       contain any reference to this mark.
23           Miss McBride gives a similar commentary on the case
24       envelope DB0529.  She was the fifth person to sign it,
25       the other four being Macpherson, Stewart, Geddes and
page  46
 1       McKenna.  She says that normally only four signatories
 2       would be required and she says that she may have been
 3       the fifth signatory because Mr Geddes had not identified
 4       Y7 to the 16 point standard.
 5           The Inquiry also has a copy of the standard letter
 6       from Chief Superintendent Ferry, as head of SCRO, to
 7       Mr Heath dated 24th March 1997 giving a comprehensive
 8       account of the results of the examination of the marks
 9       in the Marion Ross case.
10           I am about to turn to a section on enlargements.
11   THE CHAIRMAN:  We certainly stop at 11.30 so we can stop now
12       and start again at 11.40; in other words 15 minutes.
13       (11.25 am)
14                         (A short break)
15       (11.40 am)
16   MR MOYNIHAN:  I am now going to turn to the evidence from
17       the Scottish Criminal Record Office generally in
18       relation to preparation of reports and enlargements.  I
19       will just put up an enlargement for illustrative
20       purposes.
21           Mr Mackenzie's evidence, there was a standard form
22       of report which had been agreed with the Crown in the
23       1980s.  In solemn cases the Glasgow Bureau automatically
24       prepared a set of enlargements as a means of
25       illustrating a fingerprint identification.  Regardless
page  47
 1       of how many marks were identified, they would only do
 2       one illustration.  One might be requested by the PF or
 3       it would be left to the fingerprint officer's judgment.
 4           By 1997, a charting PC was being used to produce the
 5       enlargements.
 6           Both when photographic enlargements were being used
 7       and when the charting PC was in use, the practice had
 8       been to produce enlargements to illustrate
 9       identifications within specific parts of the mark.
10       Accordingly, Mr Mackenzie did not regard "cropping" to
11       be an issue.
12           HMA v McKie highlighted shortcomings in the quality
13       of the images produced by this system and its use was
14       suspended and photographic enlargements were used
15       instead.
16           Now Mr Dunbar.  He found the charting machine
17       difficult to operate, with a lack of detail in
18       comparison with photographic enlargements.  There was
19       also a concern that there was a further deterioration in
20       quality when the enlargements were printed out.
21           One enlargement per accused was prepared, with the
22       expert deciding which mark in the case would provide a
23       good illustration for court purposes.
24           He says that the enlargement was merely an
25       illustration of the way they went about making an
page  48
 1       identification "... as we cannot turn the jury into
 2       fingerprint experts."
 3           Mr Macpherson's evidence.  In a case where he
 4       carried out an initial comparison he would not redo the
 5       exercise before preparing the court report.
 6           If asked to sign a report without having been one of
 7       those who did the initial comparison, he would start
 8       from scratch.
 9           The enlargements used in the report were, at the
10       time of the Asbury case, produced on a charting
11       computer.  The quality of the image was poor: it was
12       difficult to plot the characteristics on it.
13           The Scottish Criminal Record Office was the only
14       bureau that used case specific enlargements in every
15       case.  Other Fingerprint Bureaux in Scotland did so only
16       on request and otherwise used generic enlargements for
17       presentation in court.
18           He refers to the 1983 directive from the Crown
19       Office to stop using case specific enlargements in
20       summary cases but not in Solomn cases.
21           On 12th July 2006 he says they did away with
22       producing enlargements because of a Crown Office
23       directive but he does not know what is now used in
24       court.
25           He says that he would not have used the enlargements
page  49
 1       for any actual comparison:
 2           "They were just to show the jury the characteristics
 3       that we looked for."
 4           However, specifically in relation to XF he says that
 5       he did the charted enlargement but that the other
 6       signatories would have satisfied themselves that the
 7       enlargement was correct.
 8           Mr Stewart says that the senior expert would
 9       allocate tasks amongst the experts who were to be
10       witnesses.
11           The report was a pro forma.
12           Though each signing expert had to be satisfied as to
13       the identification, Mr Stewart says that if he had
14       carried out a comparison beforehand he would not redo it
15       for the report, unless, for example, charge ten prints
16       had become available since his initial comparison.  If,
17       however, he had not done a previous comparison he would
18       do so for the comparison of the report.
19           The ultimate decision on which marks were enlarged
20       for court purposes was for the Crown.
21           SCRO had wanted for years to move to generic
22       enlargements but the Crown insisted on case specific
23       enlargements.
24           The charting PC would only enlarge to certain sizes,
25       which meant that the image had to be cropped.  The area
page  50
 1       to be chosen for enlargement would be discussed by the
 2       expert witnesses.
 3           The four experts, who might have identified
 4       different points of comparison, would discuss the area
 5       to be used in the comparison and would reach a consensus
 6       on the points to be used.  Each expert would have to
 7       agree that the points in sequence and agreement were
 8       accurate and correct before they could sign.
 9           The enlargements were prepared for illustrative
10       purposes to show how a fingerprint expert went about his
11       job.  They were not evidence of the comparison or
12       identification.  The evidence was the actual
13       photographs, the ten prints and the report.
14           The enlargement was also illustrative of the
15       specific case, showing a specific identification with
16       16 points in sequence and agreement.  However, he says
17       that the charting PC was a dreadful machine and produced
18       poor quality images.  Mr Stewart does note that the
19       Asbury case was unusual, with the Fiscal making a number
20       of non-standard requests, including reports relative to
21       every mark.
22           Ms McBride's statement.  Ms McBride says that one or
23       both of the first two signatories would be responsible
24       for drafting the report and preparing the productions
25       and any enlargement.  If she had carried out the initial
page  51
 1       comparison she would not redo the exercise before
 2       signing the report, unless, for example, a new ten-print
 3       form (such as a charge form) had become available.
 4           She agrees that substitutes would have to carry out
 5       their own comparisons before signing a report.
 6           She has refused to sign a report in the past.
 7       Details are given in her supplementary statement from
 8       paragraphs 73 to 85.  The correspondence concerning this
 9       matter is produced and reference may also be made to the
10       statement of Mr Bell at paragraph 16.
11           She says that the enlargement produced has to be
12       accurate.  Only 16 points would be shown and the experts
13       would meet to discuss which parts of the mark and print
14       to use and which characteristics to choose.  They would
15       choose the 16 clearest points.  She says that she would
16       not sign off an enlargement unless she was satisfied
17       that this was correct and clear.
18           The charting PC was difficult to work.  It was
19       difficult to mark points accurately on it.  It took
20       longer to produce enlargements on the computer and to
21       ensure that the points were accurate.  She says
22       specifically of Y7 that she would have checked that the
23       points marked on the enlargement were in sequence and
24       agreement saying the same in respect of XF, DQ2 and QI2.
25       She thinks that enlargements of QI2 may have the
page  52
 1       appearance of photographic enlargements.  As to the
 2       purpose of enlargements, she says that they were not a
 3       substitute for the identification itself and were not
 4       designed to enable a jury to make an identification
 5       because juries are not qualified to decide on
 6       fingerprint identifications.  They were shown to juries
 7       as a means of explaining, in a generic way, how the
 8       fingerprint experts go about their task.  She says:
 9           "We were not trying to prove an identification, it
10       was just for illustrative purposes."
11           Mr McKenna.  He did not keep notes.  He refers to
12       the SCRO wanting to use generic enlargements but the
13       Strathclyde Procurator Fiscals not wanting to change.
14       The enlargement was only illustrative.  One mark per
15       accused would be selected for this purpose.  Only parts
16       of the mark were enlarged.  This was known as cropping.
17       The enlargement had to show 16 points in sequence and
18       agreement.  It would be passed round the experts in the
19       case for agreement.  The charting enlargement machine
20       was difficult to use.  Case envelopes, of which DB0529
21       is an example, were not fit for purpose.  He would sign
22       the case envelope having satisfied himself as to the
23       accuracy of the identifications, having checked those
24       that he had not seen before, but he cannot now remember
25       doing that.
page  53
 1           The selection of signatories for reports was
 2       determined by a number of factors, including who had
 3       been involved in the case and annual leave.  In
 4       HMA v Asbury he was a substitute to cover for annual
 5       leave.  He would recheck comparisons that he had himself
 6       carried out earlier because the charge form might not
 7       have been available earlier.
 8           He checked Y7 to ensure that he still agreed with
 9       his identification.
10           He gives the same evidence in relation to XF and
11       QD2.
12           Specifically in relation to QI2, he says that he
13       would only have looked at the images referred to in the
14       report, though adding that he would have looked at the
15       photo of QI2, the Ross ten-print and the Marks Worksheet
16       that refers to the mark having been found on the tin.
17       He would have used the glass and possibly the
18       comparator.
19           He agrees that Mr Macpherson prepared the charting
20       of QI2.  He has no memory of the charting but would have
21       looked at it and would have been satisfied that it
22       showed, accurately, the same 16 characteristics in
23       sequence and agreement in QI2 and Miss Ross'
24       fingerprint.
25           Mr Foley also describes enlargements as something
page  54
 1       used for demonstration purposes and says that the
 2       enlargement used might not be the 16 points "you
 3       yourself identified".  He says that experts were not
 4       happy with the charting PC enlargements because they
 5       were of poor quality.
 6           I am going to skip the next section because the link
 7       between enlargements and the best evidence rule was
 8       already covered in chapter 1.  So if I therefore move to
 9       section 6.12 on the next page.
10           Dealing with enlargements and the prosecutor's
11       perspective.  Paragraph (f) of the Crown Office letter
12       to the local Fiscal dated 11th April 1997 contained an
13       explicit instruction regarding Y7 evidence in these
14       terms:
15           "The photographed impression of Y7 should be lodged,
16       along with the elimination fingerprint form of Cardwell
17       used for the comparison and the comparison report.  If
18       not already done enlargements should be prepared of the
19       photographed impression and the left thumb print form,
20       the elimination form, so that the comparison experts can
21       demonstrate the points of similarity."
22           Mrs Greaves.  Her recollection is that the purpose
23       of these enlargements was to explain to the jury what
24       fingerprint experts looked at and comparing, like a
25       demonstration, and to enable the defence to be able to
page  55
 1       see what Crown fingerprint experts had considered and
 2       looked at as background information into the preparation
 3       of the experts' joint report.
 4           She would have expected that enlargements would
 5       reflect the points of similarity identified by the
 6       fingerprint experts as points of comparison.  Those were
 7       highlighted on the enlargements to enable the jury to
 8       understand what the fingerprint officers were looking
 9       for and what caused them to form their conclusion on the
10       basis of the points found.  She was not aware of use of
11       the charting PC.
12           The evidence at trial in HMA v McKie.  Mr Stewart's
13       evidence-in-chief in HMA v McKie was on 5th May 1999.
14           Under reference specifically to production 152 his
15       evidence was that enlargements were produced for
16       illustrative purposes to show the jury how "we" reach
17       "our" conclusions.  He answered in the affirmative to
18       the question whether the 16 ridge characteristics
19       mentioned in the joint report were marked on the
20       illustrative document.  When the Advocate Depute said of
21       the charting on page 2 of the booklet that some of the
22       points did not appear entirely clear on the left image
23       (ie, the image of Y7) he responded that the fingerprint
24       on the right) ie, from the elimination print form) was
25       produced under controlled circumstances and should be of
page  56
 1       controlled quality, whereas that on the left was a
 2       "chance impression", over which the fingerprint officer
 3       has "no control over the quality and clarity of the
 4       print and that why is there is a difference between the
 5       two."
 6           At page 78 to 79 the Advocate Depute specifically
 7       commented that characteristics number 7 appeared to be
 8       not particularly plain in the enlargement and Mr Stewart
 9       indicated it on screen.  At page 85 the Advocate Depute
10       asked that the copy of the production that Mr Stewart
11       had in the witness box be shown to the jury "in view of
12       the quality of the reproduction".  These references are
13       consistent with the conclusion that there were
14       variations in the quality of the reproductions in the
15       copies available to the jury.
16           This witness did not indicate that there was a
17       problem in the quality of the enlargements as a faithful
18       presentation of points that matched in the mark and
19       fingerprint form.
20           The points in sequence and agreement cited were in
21       the lower part of the mark and are tabulated using the
22       evidence of Mr Stewart who was the lead prosecution
23       witness.  To the 16 cited in production 152 it has to be
24       recalled that an alternate was used in production 189
25       giving a total of 17 points cited in evidence.
page  57
 1           Mr Stewart was questioned on the 16 points in his
 2       evidence-in-chief and cross-examination on 5th May.
 3       From page 75 he was taken through the 16 points
 4       identified on production 152 and from page 106 he
 5       addressed production 189, then from page 108 both
 6       side-by-side.
 7           I have then tabulated the numerical references from
 8       production 152, points 1 to 16.  I have then given the
 9       number in production 189 which corresponds to those
10       features in production 152 and also given what
11       Mr Stewart described as the nature of the
12       characteristic.  I will not read out that table.
13       Turning to 6.13.4, Miss McBride says that she was
14       confused by the damage to the mark in the Wertheim
15       photographs put to her at the trial.  In her evidence at
16       the trial she did express reservations about the quality
17       of the enlargements, stating that they were only
18       illustrative giving the jury a chance to make an
19       informed decision.  In-chief she said that she was
20       reluctant to say whether point 14 shown in production
21       152 by a bifurcation or a ridge ending because the
22       enlargement was not as clear as looking at the original
23       under glass.
24           In cross much the same point prevented her from
25       expressing an opinion on Mr Wertheim's document, defence
page  58
 1       production number 2.  In re-examination she said that
 2       she would not carry out a comparison exercise by
 3       reference to an enlargement because it was not true to
 4       life.
 5           Mr Macpherson also emphasised that the enlargements
 6       were illustrative and not what they would use in the
 7       office when identifying a print.  He did not question
 8       the accuracy of the enlargements.
 9           Now Mr Bell subsequently gave evidence to the
10       Scottish Parliament relative to a review meeting that
11       took place between SCRO and representatives of the
12       prosecuting authorities (including the Advocate Depute
13       and the then Deputy Crown Agent, Frank Crowe) on
14       20th May 1999 in which Mr Bell said that one of the
15       points that emerged was the Procurator Fiscals were to
16       be from circulated to the effect that generic
17       fingerprint material was to be examined to allow a more
18       professional presentation in high profile cases.
19           In May 2000, Temporary Inspector Tatnell produced a
20       report on the use of the charting PC.  He recommended
21       the use of the charting PC be stopped and that instead
22       photographic enlargements be used.  However, his report
23       records the use of the charting PC had been suspended at
24       an interim stage pending completion of his report.
25           His report also narrates why the use of the charting
page  59
 1       PS was called into question and I quote:
 2           "During the McKie trial defence experts called the
 3       quality and reliability of the enlargements into
 4       question.  These enlargements were prepared on the
 5       charting PC.  Indeed, experts within the bureau had been
 6       dissatisfied with the system for some time.  They have
 7       been frustrated not only by the fact that it's difficult
 8       to use, but also by the fact that it is unreliable,
 9       often crashing or jamming at the printing stage.
10       Following the McKie case, they have further lost
11       confidence in it, resulting in a reluctance to use it
12       and a return to conventional photographic enlargements."
13           From that narrative in chapter 6 the issues are
14       these.  In relation to the completion of the paperwork
15       in the Asbury case, why was it that the Scottish
16       Criminal Record Office case envelope (DB0529) was
17       completed by the five signatories?  Why were Ms McBride
18       and Mr McKenna selected to be signatories to the court
19       reports?  What steps were taken by each of the
20       signatories of a joint report for a court case
21       independently to verify the identification in question
22       and the productions prepared for the case?  Who selected
23       the images and specific print forms to be referred to in
24       the reports and why were those specific examples chosen?
25       Why was an observation included in the Y7 report dated
page  60
 1       27th March regarding the orientation of that print and
 2       why was that report not lodged in court?  Why was
 3       production 180 prepared?  What was the purpose of
 4       producing case specific enlargements?  Were the charted
 5       images produced for court accurate representations of
 6       the characteristics in sequence and agreement identified
 7       by the fingerprint examiners who signed them?  If not,
 8       was this fact known to the fingerprint witnesses at the
 9       time when they prepared the productions for the
10       Asbury/McKie cases and what bearing did that have on the
11       preparation of their evidence?
12           Again, a list of witnesses is given to reflect the
13       people named in the narrative.
14           Turning now to chapter 7 which relates to the
15       preparation for prosecution in HMA v McKie, again I
16       start by referring back to the Terms of Reference.
17           As with chapter 5, in reviewing the prosecution's
18       preparation for the trial it is not intended to consider
19       the exercise of discretion in deciding to proceed to
20       trial against Ms McKie on a charge of perjury.  Rather
21       the review of preparations for the trial is aimed at
22       casting light on the instructions that were given
23       relative to fingerprint evidence and what insight that
24       provides to attitudes toward fingerprint evidence at the
25       time.
page  61
 1           The aftermath of HMA v Asbury.  At the conclusion of
 2       the trial of Mr Asbury, the trial Depute, Mr Dewar,
 3       submitted a report to the Lord Advocate, Lord Hardie,
 4       dated 5th June 1997 he recommended proceedings for
 5       perjury against Ms McKie.  Sheriff Crowe explains that
 6       Crown Office procedures laid down that a different
 7       Advocate Depute had to consider a full precognition and
 8       to give instructions if Ms McKie was to be indicted.
 9       The first stage was to obtain a transcript of her
10       evidence.
11           On 9th June the Lord Advocate, Lord Hardie,
12       instructed the Home Depute (by now Alister Campbell QC)
13       to obtain a transcript and he in turn passed that
14       instruction on to Mr Gallacher on 16th June.
15           Following receipt of the transcript, Mr Gallacher
16       wrote a memo to the Duty Advocate Depute dated 29th
17       July 1997 seeking instructions.  The Duty AD (who is
18       presumed to be Philip Brodie QC) instructed that the
19       Procurator Fiscal Glasgow precognosce the case without
20       Ms McKie being placed on petition.  Mr Gallacher duly
21       conveyed that instruction to the PF by letter dated
22       30th July.
23           Mrs Denise Greaves was appointed to precognosce the
24       case.  Mrs Greaves explains that the procedure in a
25       perjury case is the reverse of the norm, with Crown
page  62
 1       Counsel assessing the sufficiency of the evidence before
 2       instructions are given to the Fiscal to precognosce the
 3       case.
 4           Lord Boyd of Duncansby, the Solicitor-General at the
 5       time of the prosecution of Ms McKie, makes an analogous
 6       point: this case was unusual because the matter was
 7       fully precognosced before Ms McKie was placed on
 8       petition, where the norm was for a petition appearance
 9       to precede precognition of the case.
10           Dealing with Asbury's appeal, Mr Asbury lodged an
11       appeal on 5th August 1997 consistently with the position
12       adopted by the defence at the trial, the original
13       grounds of appeal did not dispute the identifications.
14            I then give some detail I will not read over.  It
15       concludes with the last sentence in June 2002 the
16       defence solicitors intimated grounds of appeal amended
17       to include a challenge to the identification of
18       Miss Ross' print on QI2.
19           At least viewed from the Crown Office perspective,
20       investigations by the defence team instructed by
21       Mr Asbury were in abeyance pending the outcome of
22       HMA v McKie.
23           The basis on which Mr Asbury's conviction was
24       quashed is not within the Inquiry's Terms of Reference
25       but this much may be noted: it would seem that the
page  63
 1       events concerning the prosecution of Ms McKie occurred
 2       before the Crown Office and Procurator Fiscal Service
 3       had any knowledge that the Asbury defence team were
 4       challenging the identification of any of the critical
 5       fingerprint in the case.
 6           I deal with disciplinary proceedings now.  A
 7       disciplinary investigation of possible misconduct by
 8       Ms McKie had been commenced in May 1997 by Strathclyde
 9       Police.  Chief Inspector Wilson's report is dated 27th
10       August 1997 and recommended disciplinary proceedings.
11       In anticipation, the Chief Constable had written to the
12       Regional Procurator Fiscal by letter dated
13       4th August 1997 enquiring whether a misconduct hearing
14       would impede any action that the Crown might propose.
15       That correspondence was referred to Crown Office and the
16       Deputy Crown Agent Mr MacFadyen advised the regional
17       Procurator Fiscal that because of the possibility of
18       perjury was being investigated he imagined that the
19       deputy Chief Constable would not with to proceed with
20       misconduct proceedings at present.  That was conveyed to
21       the Deputy Chief Constable.
22           Chief Inspector Laurence Wilson's involvement was
23       not confined to the preparation of the complaints and
24       discipline file.  He corresponded with Mrs Greaves, the
25       Fiscal who was precognoscing the case in Glasgow.  She
page  64
 1       requested and he provided a report on Ms McKie's
 2       involvement in other murder inquiries.  His response is
 3       dated 20th January 1998.
 4           Mrs Greaves has no recollection of the police
 5       expressing reservations about the prospects of
 6       conviction due to the fact that the police witnesses
 7       spoke to Ms McKie not having been in the house but she
 8       was aware that the police did have concerns about the
 9       case.  She observed that the log was a shambles, with
10       gaps.
11           Dealing with Crown Office and Procurator Fiscal
12       Service papers, the Crown Office has been unable to
13       locate the buff folder relating to the prosecution of
14       Ms McKie.  This buff folder was the outer covering of
15       the High Court Unit correspondence file.  They've
16       provided to the Inquiry: (a) papers (some tagged and
17       included in the file relating to HMA v Asbury and some
18       loose) that would have been in the folder relating to
19       HMA v McKie from its inception on 5th June 1997 through
20       to 8th April 1998 and then to 19th October 1998; (b) the
21       Glasgow Procurator Fiscal's file relating to the case;
22       and (c) the full precognition.  Crown Office has
23       explained that over the years papers held by the Crown
24       Office and Procurator Fiscal Service have been supplied
25       to several other inquiries and investigations.  While
page  65
 1       they cannot say with certainty that there are not some
 2       papers that are missing, they have supplied the Inquiry
 3       with the vast majority of the papers associated with
 4       case of Asbury and McKie in the original form.
 5           In narrating the sequence of events this opening
 6       statement draws on each of these sources of
 7       contemporaneous documents, supplemented by witness
 8       statements.
 9           The precognition was submitted to Crown Office on
10       22nd December 1997.  The analysis and recommendation
11       (and I have brought up the analysis sheet) in the
12       precognition was signed by Mrs Greaves and countersigned
13       by Mr Vannet, the Regional Procurator Fiscal.  The
14       analysis proceeded on the hypothesis that the matching
15       of Y7 with Ms McKie was not in doubt.  I will just
16       highlight that on the screen.
17   THE CHAIRMAN:  I think we can see where it is.
18   MR MOYNIHAN:  I am sorry: I failed.
19            "There is no doubt that the comparison shows her
20       prints and the impression to be identical."
21           The analysis also contains a reference to the
22       perception of infallibility and if I go back to the
23       first page in the section that has been highlighted for
24       me earlier.
25   THE CHAIRMAN:  It is on the next page.
page  66
 1   MR MOYNIHAN:  There is also one, sir, in the middle of the
 2       first page that has been highlighted, referring to
 3       Ms McKie evidence she has called into question the
 4       reliability and infallibility of fingerprint evidence.
 5       Then if you go to page 4 the analysis also contains a
 6       reference on page 4 that precognosces the second
 7       highlighted passage.
 8           "The precognoscer is aware that the police are
 9       extremely concerned that should the case against Shirley
10       Cardwell proceed to a trial that a jury may not fully
11       understand the complexities of the case and the
12       infallible nature of fingerprint evidence."
13           That said, Mrs Greaves wrote -- and in the text I
14       have quoted part of the first highlighted paragraph and
15       it is probably better read the whole paragraph:
16           "While SCRO fingerprints are independent from
17       Strathclyde Police, I have compared the fingerprint
18       forms provided and the impression Y7 found in the house
19       of Marion Ross.  Crown Counsel may wish to consider
20       whether or not an expert previously unconnected with the
21       case should make further comparison.  In relation to the
22       articles which Chief Inspector Hogg has provided
23       relating to transplanted and faked fingerprints, Crown
24       Counsel are asked whether an expert in this field should
25       be instructed.  Chief Inspector Hogg does not consider
page  67
 1       himself an expert in transplanted and faked
 2       fingerprints.  The name Dr Terry came to the Home Office
 3       at Sandwich has been named as a possible expert."
 4           I then move to document CO3573.  The origins of this
 5       lie in an undated note in the Glasgow Procurator
 6       Fiscal's files headed "Problems/observations/comments"
 7       CO3573.  Point 3 in the original note is in these terms:
 8           "SCRO are independent and have compared the
 9       fingerprint form and impression Y7 found at the house of
10       Marion Ross.  Crown Counsel may wish to consider whether
11       or not an expert previously unconnected with the case
12       should make a further comparison."
13           Point 4 of that note covered the separate question
14       concerning transplanting of prints and fake prints.
15       Chief Inspector Hogg had said that he was not an expert
16       and the possibility of instructing an expert was raised,
17       the name of it should be Mr not Dr, Mr Kent being
18       mentioned in that regard.
19           In the copy available to the Inquiry points 3 and 4
20       are stroked through, presumably indicating that at some
21       stage they were deemed to have been completed.
22           In the analysis of evidence in the precognition
23       (that is CO2561 which is displayed first) points 3 and 4
24       are run together resulting in the appearance that
25       Mr Kent was being contemplated as an expert on both
page  68
 1       points.  Page 4, it is the middle paragraph on page 4
 2       which falls to be compared with the problems sheet which
 3       preceded it.  Points 3 and 4 in effect now become one
 4       continuous narrative.
 5           Mrs Greaves is the person who prepared the
 6       precognition.  So she prepared the writing that we see
 7       on the screen just now.  She says that at the time when
 8       the precognition was prepared the presumption was that
 9       Mr Kent would be able to deal with both planting and the
10       re-comparison of Y7.  It was not until his report became
11       available that it became known that fingerprint
12       comparison was not his area of expertise.
13           The Deputy Crown Agent dealt with the precognition
14       on 2nd January 1998 and referred it to Ms Climie for
15       comment, given her previous involvement in HMA v Asbury.
16       His note included the following observation and I quote:
17           "... but given the observations on Cardwell's
18       plausibility it may indeed make sense to involve an
19       independent expert -- both on the question of
20       transfer/planting and on the general basis for
21       concluding that fingerprint identification is
22       100 per cent reliable."
23           Ms Climie submitted her comment to the duty AD on
24       15th January 1998.  She records that she had spoken to
25       Mr Dewar and that he was of the view that Ms McKie
page  69
 1       should be prosecuted if there was a sufficiency of
 2       evidence.  Her note suggests that the DCA's observation
 3       about an English expert derived from page 37 of the
 4       precognition.  She recommended that further expert
 5       evidence be pursued.  In addition to the two specific
 6       matters mentioned by the DCA, she effectively added a
 7       third.  Having noted that it was her understanding that
 8       the standard applied in England for matching prints was
 9       more stringent, she wrote:
10           "It might be an idea to pursue whether Y7 can be
11       matched to Shirley Cardwell on the English standard.
12       Presumably the Home Office expert could deal with this."
13           The duty AD (presumed to be the late Jane Patterson)
14       gave an instruction dated 15th January 1998.  She
15       instructed High Court proceedings against Ms McKie.  She
16       endorsed the recommendation to instruct an independent
17       expert not only on the two points mentioned by the DCA
18       but also on the matter raised by Ms Climie.  The duty
19       AD's instruction on that matter was in these terms:
20           "If the English requirement is more stringent, it
21       would be helpful if the expert making yet another
22       comparison could do so to the English requirements."
23           Ms Climie's subsequent note details what was
24       understood possibly to be the more stringent English
25       requirement: Ms Climie understood that Scots
page  70
 1       practitioners would count a "lake" in a fingerprint as 2
 2       characteristics towards the total of 16, whereas English
 3       practitioners would count it as only 1.  Her letter
 4       suggests that she may have obtained this information
 5       from Mrs Greaves.
 6           For her part, Mrs Greaves says is that she thinks
 7       the information about English practice came from the
 8       police.
 9           Ms Climie queried the instruction to proceed to
10       indict.  She took the view that the first step should be
11       to place Ms McKie on petition but that that should be
12       deferred pending receipt of the English expert's
13       evidence, which could take some time.
14           The DCA reported the matter to the Solicitor-General
15       (Colin Boyd).  The Solicitor-General's response is a
16       manuscript note dated 20th January 1998.  He asked to
17       speak to the DCA about the timing of placing Ms McKie on
18       petition because of the complication that the
19       productions were required for the ongoing Asbury appeal.
20       However, he endorsed the need for an independent expert
21       and he wrote:
22           "Clearly we need a further independent expert but
23       that need not hold up the petition."
24           There is no record of the discussion between the DCA
25       and the Solicitor-General but the Solicitor-General's
page  71
 1       manuscript instruction following the discussion is on
 2       file and is dated 26th January 1998 and it is in these
 3       terms:
 4           "DCA as instructed, please arrange for Cardwell to
 5       be placed on petition."
 6           The Solicitor-General's instruction was passed by
 7       the DCA to Ms Climie and she in turn relayed it to
 8       Mrs Denise Greaves, by letter dated 30th January.
 9       Ms McKie was placed on petition on 6th March.  On
10       3rd April 1998 Ms Climie wrote to the Procurator Fiscal
11       Glasgow enquiring when the finalised precognition would
12       be submitted.
13           Lord Boyd of Duncansby QC has provided a statement.
14       He explains that the decision to prosecute a police
15       officer for an offence committed in the course of duty
16       fell to him as Solicitor-General and would not be taken
17       lightly.  He would have read much of the precognition.
18       He remembers having had a discussion with the DCA.  He
19       recollects that the log did not disclose that Ms McKie
20       had been at the locus, but there were issues about the
21       reliability of the log and his conclusion at the time
22       was that this was a matter for the jury.
23           He gave the instruction dated 26th January to place
24       Ms McKie on petition.  He cannot recall giving any
25       further instructions in relation to the prosecution.
page  72
 1       Accordingly, he infers that his instruction dated 26th
 2       January was ultimately taken to include the decision to
 3       indict.
 4           He considers that there was a sufficiency of
 5       evidence based on the evidence of the SCRO witnesses.
 6           In relation to the instruction over an English
 7       expert, he cannot recall whether that was a significant
 8       consideration for him at the time.  There was no reason
 9       at the time to cast any doubt on the "substantive
10       reliability" of fingerprint evidence, which at the time
11       was regarded as "almost irrefutable evidence".  He
12       understood the purpose of obtaining further fingerprint
13       evidence to be to meet the anticipated defence case,
14       which at that stage was believed to be planting.
15           He recalls no reservations being expressed by the
16       police or anyone else about the prospect of conviction
17       beyond those recorded in manuscript numbering page 37 of
18       the precognition, but those did not relate to the
19       quality of the fingerprint evidence.
20           Sheriff Crowe was not personally involved until
21       after the acquittal of Ms McKie.  However, he does
22       discuss the perceived standing of fingerprint evidence
23       at that time.  He does mention the reservations in
24       Hamilton v HMA in 1934, but says that since that case
25       most lawyers in criminal practice proceeded on the basis
page  73
 1       that if fingerprint experts said that they could find
 2       16 points of comparison "that was the end of the
 3       matter".
 4           So far as further enquiries are concerned, the Crown
 5       Office letter of 30th January instructed that Ms McKie
 6       be placed on petition and also contained specific
 7       instructions regarding fingerprint evidence.  It
 8       instructed that evidence be obtained from a suitable
 9       English expert.
10           Three specific points were mentioned: (1) transfer
11       and planting of fingerprints in general; (2) the general
12       basis of concluding that fingerprint identification is
13       100 per cent reliable; and (3) whether, on examination
14       of Y7, there was anything to suggest that it had been
15       transferred from another source on to the doorframe.
16           To those three was added the possibility of an
17       English opinion on the identification of Y7 as
18       Ms McKie's print.  Ms Climie records that Mrs Greaves
19       had told her that English standards were more stringent
20       and Ms Climie wrote:
21           "If this is indeed the case, then the English expert
22       should be asked to look at Y7 and confirm that, on the
23       basis of the English practice, the print can be
24       identified as being that of Shirley Cardwell."
25           The letter also instructed that the English expert
page  74
 1       be precognosced in detail with particular reference to
 2       the different standards applicable to fingerprint
 3       identification.
 4           There was an instruction that Ms McKie be
 5       fingerprinted on arrest and that those fingerprints be
 6       used not only by the English expert but also by the
 7       Scottish experts, who were to carry out further
 8       comparison.
 9           Turning to the Crown Office file of loose papers, in
10       addition to the tagged papers with the file for the
11       Asbury murder case described above, Crown Office has
12       supplied the Inquiry with loose papers that would also
13       have formed part of the ordinary buff folder relating to
14       HMA v McKie.  This narrative continues by reference to
15       those loose papers.
16           A letter from Ms Climie dated 8th April 1998 sought
17       an indication as to the likely date for the submission
18       of the finalised precognition but noted that there was
19       no immediate rush given that the time-bar for
20       prosecution was not due to expire until March 1999.
21           Mrs Greaves responded by letter dated 15th April
22       attaching a form F32 bearing the date 15th March 1998.
23       The form F32 advised that the 12-month time-bar was due
24       to expire on 6th March 1999 and on the form Mrs Greaves
25       wrote and I quote:
page  75
 1           "Crown Counsel's instructions are to proceed to High
 2       Court.  Additional investigation is ongoing.  Crown
 3       Office contact Ms Climie."
 4           The one subsequent development was that, under cover
 5       of a letter dated 15th May 1998, Mrs Greaves sent to
 6       Ms Climie a copy of the Kent report dated 13th May.
 7         That apart, the only other document of any substance
 8       is one dated 19th October 1998, a letter written by
 9       Mrs Greaves to Ms Climie asking her to "advise if Crown
10       Counsel are satisfied with terms of Terry Kent's
11       report".  The loose papers end at that date.
12           Turning now to the Glasgow file, the Crown Office
13       also provided the Inquiry with papers as per an
14       inventory.  Those include the Glasgow Procurator
15       Fiscal's file and in particular a bundle labelled
16       "miscellaneous correspondence notes and papers", and it
17       fills some of the gaps regarding (a) the Kent report and
18       (b) the indictment of Ms McKie.
19           Dealing with instruction of the Kent report, the
20       Glasgow file documents the instruction of Mr Kent.  The
21       Crown Office letter dated 30th January requiring the
22       instruction of a suitable English expert is on file.
23       There are two draft letters of instruction to Mr Kent
24       dated 11th and 12th March 1998.  The draft of 12th March
25       in incomplete but the letter of instruction dated
page  76
 1       12th March 1998 is on Mr Kent's file.  The Inquiry
 2       database reference for that is given.
 3           The instruction came from Mrs Greaves and the points
 4       that she instructed be covered in the report were as
 5       follows:
 6           "(1) a narration of your expertise relative to
 7       fingerprints; (2) an analysis of fingerprint planting
 8       and manufacture; (3) the quality of the fingerprint Y7;
 9       (4) any concerns that you may have regarding the
10       fingerprint Y7; (5) any comment that you may wish to
11       make on the SCRO 16-point comparison of fingerprints and
12       the statistical basis for duplication of fingerprints;
13       (6) if you are able to make comment on the identity of
14       the fingerprint compared with Shirley Cardwell's
15       fingerprint form this should also be included."
16           Mrs Greaves now has no recollection of conversations
17       with Mr Kent regarding the terms of his instructions.
18           The Kent report as lodged.  The Kent report is dated
19       13th May 1998 and in due course was lodged by the Crown
20       in HMA v McKie.  It was production 186.  The Inquiry has
21       a number of copies of it and in this analysis the
22       reference will be to code number 3876.
23           Four points emerge from it: (1) it was Mr Kent's
24       opinion that Y7 was likely to have been deposited after
25       the SOCOs had applied aluminium powder to the doorframe
page  77
 1       and that is paragraph 9; (2) he discounted Y7 as a
 2       forgery: it had been left in the normal way by a finger;
 3       (3) he made no comment in response to point (5) of his
 4       instructions; and (4) in paragraph 33 he said he was not
 5       qualified to express an opinion on the identification of
 6       Y7, by implication indicating that he could not comment
 7       on point (6).
 8           The question in relation to the Kent report.
 9       Mrs Greaves copied the report to the Crown Office under
10       cover of her letter dated 15th May 1998.  She did not
11       comment on the absence of a response by Mr Kent to
12       points (5) and (6) in the letter of instruction.
13           The one point that she commented on was the
14       conclusion in paragraph 9 relating to the likely timing
15       of the deposit of Y7.  She invited comment and further
16       instructions from Crown Office on this point.  Now the
17       conclusion by Mr Kent in paragraph 9 was that it was
18       likely that Y7 had been deposited after the SOCOs had
19       treated the doorframe with aluminium powder.
20           I should say the aluminium powder was likely to have
21       been on 9th January.
22           However, Mrs Greaves observed on 14th January the
23       SOCOs also found fingerprints identified as those of
24       Miss Ross.  Examples are D8 and E8, recorded into
25       documents.  The Inquiry has them as having been found on
page  78
 1       the downstairs rear bedroom door on that day, and
 2       identified as belonging to Miss Ross.  Mrs Greaves was
 3       concerned that the finding of marks identified as those
 4       of the deceased at the same time as the finding of Y7
 5       undermined the conclusion reached by not only Mr Kent
 6       but also by the prosecution "we", that Ms McKie must
 7       have placed her fingerprint Y7 after the aluminium
 8       dusting.
 9           On the premise that the defence might suggest that
10       prints D8 and E8 should be scrutinised, she asked Crown
11       Office for comment and instructions.
12           A copy of the letter dated 19th October 1998, asking
13       Ms Climie to "advise if Crown Counsel are satisfied with
14       the terms of Terry Kent's report" is on file.  The file
15       records two earlier requests to the same effect: one by
16       letter dated 10th September and the other by telephone
17       dated 17th August 1998.  There are, in effect, three
18       chasers in relation to the issue raised in the letter
19       dated 15th May.
20           Looking at the Glasgow file, the reason for these
21       chasing letters would appear to have been requests from
22       defence solicitors Levy & McRay for access to
23       productions to enable an expert to complete a report.
24       The request was first made on 22nd May and Mrs Greaves
25       replied on 4th June advising Levy & McRae that some of
page  79
 1       the productions relevant to fingerprint evidence had
 2       been sent to St Albans (that is Mr Kent) for examination
 3       and a report had been received and was being considered
 4       by Crown Counsel.  She wrote:
 5           "Once Crown Counsel are satisfied that they do not
 6       require any further examination to be carried out, then
 7       I will arrange for the return of these items.  It may be
 8       appropriate to await return of these items prior to your
 9       fingerprint expert attending to carry out his
10       examination.
11           Mrs Greaves' contact with the Crown Office on
12       17th August and 10th September were in the context of
13       reminders from Levy & McRae and a letter from
14       Mrs Greaves to Levy & McRae of 21st August, in response
15       to the reminder dated 20th August expands on her
16       manuscript note of 17th August:
17           "Last week I was in contact with the Depute at Crown
18       Office regard this case.  She assures me I should have
19       Crown Counsel's instructions within the next two weeks.
20       Thereafter, I will either request further examination of
21       the productions which are at PSDB [that is Mr Kent's
22       department] or I will arrange for their return to
23       Glasgow."
24           In the event it was not until 9th November that
25       Mrs Greaves was able to write to Levy & McRae to advise
page  80
 1       that she had now received instructions to request return
 2       of the production from PSDP.
 3           The file does not contain any record of any
 4       instruction by Crown Counsel.
 5           Mrs Greaves has been asked about this matter in her
 6       statement.  When first assigned the task of preparing
 7       the precognition she was a member of the Complaints
 8       Against the Police Unit.  By the time she instructed
 9       Mr Kent she was no longer a member of that unit but says
10       that she probably remained involved until the case was
11       indicted, dealing with points raised by the indicter
12       (Ms Climie) and Crown Counsel.
13           Her recollection of conversations with Mr Kent is
14       confined to his need to see the doorframe in order to
15       comment on the question of planting.  She has no
16       recollection of any discussion regarding his ability to
17       carry out a comparison of Y7.
18           By the time his report was received it was apparent
19       that he could not perform a comparison of Y7 and she
20       asked Ms Climie if another report should be obtained on
21       this issue.  He does not think she ever received an
22       answer from Ms Climie.
23           Mrs Greaves says she did think it necessary to get
24       another view on the identification of Y7 and she thinks
25       she mentioned that to Ms Climie.  She may also have
page  81
 1       mentioned this to the Area Procurator Fiscal Mr Vannet
 2       or to the police but she cannot remember.  Her
 3       recollection is that a further expert opinion was a
 4       matter for Crown Counsel to consider, though this was
 5       not written down.
 6           She thinks that the view taken in Crown Office was
 7       that the defence expert in HMA v Asbury had already
 8       provided independent support.  She says this:
 9           "Crown Office were keen to keep the case moving and
10       I do remember there being a fall back view taken that
11       there had already been independent consideration by a
12       fingerprint expert instructed by the defence in the
13       David Asbury case where no issue had been taken with
14       either Y7 or any other print used for that prosecution."
15           She concludes her statement by saying that the focus
16       at the time of the precognition was on the possibility
17       of forgery or planting and that the problem with the
18       print itself only crystallised during the trial.
19           Lord Boyd of Duncansby has no recollection of having
20       seen any of this correspondence and says that there
21       would have been no reason for him to have done so.  He
22       has no recollection of seeing or discussing the Kent
23       report and sees no need to have done so given that there
24       was no reason at the time to question the reliability of
25       SCRO fingerprint evidence.  An advocate depute may not
page  82
 1       have been involved in such matters because it was not
 2       until later that the reforms were introduced to make a
 3       specific advocate depute responsible for overseeing
 4       preparation of particular cases, though he does not
 5       suggest that the decisions in the McKie case would have
 6       been any different under the reformed regime.
 7           For completeness, Mr Hogg says that he did some work
 8       on the possibility of planting for Mrs Greaves and he
 9       believes that he gave her a report on the subject.
10           Terence Kent.  A statement has been taken from
11       Mr Kent.  He was head of the Criminal Investigation
12       Sector and IT at the Home Office Police Scientific
13       Development Branch.
14           He cannot remember with whom he had contact first in
15       relation to the McKie case but he had quite a lot of
16       contact with Chief Inspector Hogg.  His recollection is
17       that he was told that Pat Wertheim was likely to give
18       evidence that Y7 had been planted and he was asked to
19       look at the print.  The focus of his examination was
20       whether Y7 was a forgery, by which he means a
21       transferred or reproduced fingerprint.
22           His letter of instruction was dated 10th March and
23       he uses a slightly different copy than the one I have
24       been referring to earlier, a copy to the same effect.
25       He took photographs of Y7 at various different
page  83
 1       exposures.
 2           His view now remains as it was when he prepared his
 3       report, though he comments that that became somewhat
 4       irrelevant when Mr Wertheim's evidence at the trial
 5       concerned the identification of the mark.
 6           He did not cover points 5 and 6 in his letter of
 7       instruction.
 8           As to point (6), interpretation of fingerprints was
 9       not part of his expertise.  He does not recall any
10       discussion with the Fiscal about this.  He also does not
11       recall any discussion about his report.
12           He says that he formed no view about the
13       identification of Y7 because until Mr Wertheim had given
14       evidence, it never crossed his mind that the Scottish
15       experts could have made a mistake.
16           As for point (5), he says that in his statement that
17       he had concerns at the time about the move to dispense
18       with the 16 point standard in England but he does not
19       remember if this was discussed with anyone in the
20       Procurator Fiscal's office.  He had carried out a study
21       in the mid-1990s that had found substantial variations
22       in the numbers of characteristics found by experts
23       studying the same image.  He says that this highlighted
24       for him the absence of standards by which scene of crime
25       fingerprints were assessed.  His experiments had found
page  84
 1       "anomalies" that he raised in 1999 when consulted on the
 2       move to the non-numeric system in England.  He
 3       recommended that the 16 point standard not be abandoned
 4       "until the underlying problems with fingerprint evidence
 5       were dealt with".  He refers to a memo in January 2000
 6       on this point.  This may have led to a year-long delay
 7       in effecting the change, but the change was made.
 8           He cites the case of R v McNamee case "as
 9       illustrating just how badly things can go wrong" where
10       what Mr Kent regards as best practice is not followed,
11       best practice being to assess the latent fingerprint
12       before the suspect ten-print is compared.
13           As noted one of his conclusions was that it was
14       likely that Y7 had been deposited after the SOCOs had
15       treated the doorframe with aluminium powder.  He has
16       been asked by the Inquiry team to comment on the
17       observation made by Mrs Greaves that at the same time as
18       discovering Y7 the SOCOs also found fingerprints
19       identified as those of Miss Ross.  He explains that his
20       opinion on the likely sequence of events derived from
21       his experience that the general rule, albeit with some
22       exceptions, is that if there is sufficient material to
23       develop a fingerprint with black powder then the print
24       will also be developed with aluminium powder.  He does
25       not recall being aware that prints of the deceased were
page  85
 1       also found, he says, "... although that fact does not
 2       change my view based on the general rule."
 3           His statement does allude to exceptions to the
 4       general rule, including fact that aluminium powder may
 5       not be suited to some surfaces, for example in kitchens
 6       where there are fatty deposits.  His evidence is that he
 7       did not observe aluminium deposits on the doorframe and
 8       he says that one very real issue in relation to the
 9       question being discussed with him is the level of care
10       exercised in the application of the powder and the use
11       of a good lamp.
12           Mr Kent was called as a witness by the prosecution
13       on 6th May 1999.  His evidence was brief and confined to
14       the issue of planting.  There is a summary in the police
15       observer's note of the trial.
16           The comments that he makes in his statement
17       regarding issue (5) in his letter of instruction and the
18       lack of observable aluminium powder on the doorframe may
19       give an insight into the fact that he recounts a sense
20       of puzzlement at the time of the trial that his evidence
21       was apparently uncontested.
22           The Inquiry team is making further inquiries with
23       Mr Kent relating to the studies to which he refers.  One
24       particular issue of concern, given that his statement
25       embraces events going beyond the date of the McKie
page  86
 1       trial, is to establish the state of his knowledge (a)
 2       when instructed by the Crown in March/May 1998 and (b)
 3       by the date of the McKie trial.  This has a bearing on
 4       the information that the prosecution could have obtained
 5       from him had issue (5) in his letter of instruction been
 6       pursued further with him.
 7           I then turn to the case of R v McNamee.  This was
 8       decided by the Court of Appeal on 17th December 1998.
 9       It involved a conflict of evidence among fingerprint
10       experts including some of the witnesses involved in this
11       Inquiry, including Mr Mackenzie, Mr Dunbar and Mr Swann,
12       evidence was given by some to a standard lower than
13       16 points but the conviction was quashed in part due to
14       doubts about the fingerprint evidence.  The leading
15       judgment is that of Swinton Thomas LJ.
16           It is worth recording the predicament that the court
17       faced and I quote from the judgment:
18           "We were persuaded to grant leave to call no less
19       than 14 fingerprint experts, all with great experience,
20       in this appeal, and we have heard evidence in relation
21       to this single thumb print over no less than seven full
22       court days.  Some of the experts were instructed by the
23       Review Commission, some by the appellant and some by the
24       Crown.  Remarkably, and worryingly, save for those who
25       said that the print was unreadable, there was no
page  87
 1       unanimity between them, and very substantial areas of
 2       disagreement.  All of the experts, save Mr Swann who is
 3       retired, are currently employed in various police
 4       forces.
 5           "Standards for the presentation of fingerprint
 6       identification in court have been laid down since 1953
 7       by agreement between the Fingerprint Bureau,
 8       representatives of the United Kingdom Constabularies and
 9       the Home Office.  The current standard requires a match
10       of 16 ridge characteristics on any one digit or, where
11       prints are uplifted from two digits, not less than 10
12       matching characteristics for each digit."
13           The court's conclusion on the fingerprint evidence
14       was in these terms and again I quote:
15           "There was much disagreement between the experts in
16       relation to this print and it is impossible to know what
17       evidence a jury would be likely to accept and what
18       evidence they would be likely to reject.  A case on 11
19       coincident markings is a case different from a case
20       based on 16 coincident markings.  The experts asked to
21       give evidence on this issue, including Mr Swann, all
22       said that they would be satisfied with 8 or 10 matching
23       characteristics as sufficient to prove identity.  That
24       would be likely to entitle the Crown to call evidence of
25       such matching characteristics in respect of a particular
page  88
 1       mark.  However, that was not the case presented at the
 2       appellant's trial.  We note that in the current 1998
 3       edition of Archbold at paragraph 14-97 it is said that
 4       between 10 and 15 matching characteristics on a single
 5       fingerprint is regarded as a partial identification and
 6       might be forwarded to the investigating authorities but
 7       would not be adduced in court.  If that statement is
 8       intended to be a statement of law, we do not think it is
 9       accurate.  Evidence of fewer than 16 characteristics is
10       not inadmissible as evidence of identification.  As we
11       were told by the experts, much depends on the quality of
12       the print itself and the quality of the matching
13       characteristics.
14           "We must bear in mind the considerable emphasis that
15       the trial judge in his summing-up laid on the presence
16       of three as opposed to one or two incriminating
17       fingerprints.
18           "Having heard all the expert evidence before us, it
19       is impossible to say with confidence which conclusion a
20       jury would have reached.  It would have been open to
21       them to conclude not only that the thumb mark could be
22       read, but also that they were sure that it was the
23       appellant's print.  On the other hand they might have
24       concluded that they were not sure that it was the
25       appellant's print.  Accordingly we cannot be sure that a
page  89
 1       jury on the totality of the evidence which we have heard
 2       would have found that they were sure that it was the
 3       appellant's print.  That is a matter of importance when
 4       we come to the conclusion whether or not this verdict is
 5       unsafe."
 6           The date of that judgment is significant.  It falls
 7       in the period between the decision by the
 8       Solicitor-General to place Ms McKie on petition and the
 9       date when she was indicted for trial.
10           Turning to the indictment of Ms McKie, the Glasgow
11       file contains some limited documentation relating to the
12       indictment of the case against Ms McKie.  On
13       19th January 1999 Ms Climie wrote to Mrs Greaves
14       advising her that the case was to be indicted for the
15       High Court sitting commencing 1st March 1999.  A draft
16       indictment was attached for revision and there is
17       reference to lodging Mr Kent's report as a production
18       and including him in the list of witnesses.
19           On 25th January 1999 Mrs Greaves wrote to the
20       Justiciary Department asking for the release of the tape
21       of Ms McKie's evidence at the Asbury case.  That letter
22       records that "Crown Counsel have now instructed that
23       Ms McKie or Cardwell proceed on an indictment in respect
24       of a charge of perjury."
25           On the same date Mrs Greaves wrote to Ms Climie on a
page  90
 1       number of detailed pretrial preparation points including
 2       confirmation that she had instructed "SCRO fingerprints"
 3       to compare the fingerprint form taken on the arrest of
 4       Ms McKie and the "impression Y7 which she initialled."
 5           Lord Boyd of Duncansby has no recollection of having
 6       taken a separate decision to indict Ms McKie.
 7       Mrs Greaves similarly does not know who took the
 8       decision to indict.
 9           Now the Crown Office response on incomplete files.
10       Mrs Greaves observes that correspondence is missing and
11       the Crown files are not complete.  The Inquiry team was
12       aware of this before she gave statement.
13           The Crown Office has been advised that the papers
14       supplied to the fingerprint Inquiry regarding the
15       prosecution of Ms McKie are incomplete and, in
16       particular, that there is no record of the final
17       handling of the need for English expert evidence on the
18       identification of Y7.  A response from Crown Office by
19       letter dated 10th March 2009 is on the Inquiry
20       hearing database.
21           Chapter 7 issues.  As already observed there is a
22       follow-up Inquiry being made with Mr Kent that has a
23       bearing on the issues emerging from this chapter.
24       Subject to that, the issues are as follows: what was the
25       prevailing understanding as to the reliability of
page  91
 1       fingerprint evidence prior to the trial in HMA v McKie?
 2       Did the Crown fail to take an appropriate steps by
 3       failing to exhaust instructions to Mr Kent?  What
 4       consequence flowed from the Crown's failure to exhaust
 5       the instructions to Mr Kent and, again, the witnesses
 6       are those named in the narrative.
 7           Turning next to the trial in HMA v McKie and the
 8       post trial review.  The trial began on 21st April 1999
 9       and concluded on 14th May 1999.  A summary of the trial
10       was written by Inspector Carle, the police observer.
11       The Trial Depute was Sean Murphy QC, now Sheriff Murphy.
12           I then list some of the principal witnesses to give
13       cross-references with the Carle summary and also the
14       transcripts that we have available.
15           If I turn to Crown preparation, a Sheriff Murphy has
16       given a statement.  He recalls that the trial was set
17       down for a sitting commencing on 14th April 1999.  That
18       is a Wednesday -- that may be a misprint for 12th April.
19           Ordinarily a Trial Depute would receive his papers
20       about ten days before the sitting commenced.  In this
21       instance he does not recall when he got his papers but
22       he did have a meeting with Mr Macpherson and Mr Stewart
23       at SCRO on 30th March 1999.  This was for a general
24       briefing and was before Sheriff Murphy had received the
25       defence productions.  His evidence is that he got the
page  92
 1       defence productions "a couple of days before the trial,
 2       during the sitting".  He believes that he received a
 3       copy of the Wertheim report on Friday of week 1 of the
 4       sitting, which was presumably 16th April 1999.  He does
 5       not recall any separate material being lodged for
 6       Mr Grieve.
 7           Having read the report he contacted Mr Stewart and
 8       Mr Macpherson who came down to the High Court and
 9       examined the material at lunchtime.  Sheriff Murphy says
10       that Mr Stewart and Mr Macpherson were confident that
11       they could maintain their position and had criticisms of
12       Mr Wertheim's approach, including "the fact that
13       Mr Wertheim had appeared to damage the print Y7".
14           Sheriff Murphy explains that he was content to
15       proceed to trial without the further opinion on Y7
16       "... on the basis that SCRO appeared to be confident."
17           Sheriff Murphy would appear to have had a number of
18       additional reasons for proceeding on this basis.  To
19       have done otherwise would have required an adjournment
20       and, in any event, Sheriff Murphy was not in favour of
21       conducting cases with a large number of competing
22       experts.  Further, he also believed that in James Kerr
23       he had an eye witness placing Ms McKie at the house at a
24       time when she no reason to be there.
25           The Crown productions included charting PC images.
page  93
 1       Sheriff Murphy understood that these chartings were
 2       illustrative and he explains what he understood by that:
 3       they were illustrative "to the extent that SCRO officers
 4       did not use these enlargements to perform their
 5       comparisons, instead using clearer scene of crime
 6       photographs of the fingerprints.  He says:
 7           "I understood the charting to illustrate not just
 8       the methodology of their comparisons but also the
 9       conclusions of the SCRO officers as to the marks in
10       question."
11           The clarity of these images when they were enlarged
12       on a projector became an issue at the trial.  He does
13       not recollect any concerns being raised by SCRO about
14       the quality or accuracy of the content of the
15       enlargements when he consulted with them in advance of
16       the trial, nor did the SCRO witnesses mention that the
17       enlargements they had prepared would not be sufficient
18       for rebutting the defence position.  The problems with
19       the definition of the SCRO images only became apparent
20       during the trial.
21           During the trial he got feedback from SCRO witnesses
22       after they had given evidence but he cannot now remember
23       if that was by meeting them personally or was via the
24       Fiscal.
25           Sheriff Murphy also explained his analysis of the
page  94
 1       case prior to the trial.  He had a general concern about
 2       the prospects of success because the conviction rate is
 3       not high.  He had a specific concern in this case that
 4       the trial would descend into an examination of the
 5       minutiae of different approaches to fingerprint analysis
 6       which might confuse a jury.
 7           However, he did not believe that the Crown case
 8       depended solely on fingerprint evidence because he
 9       believed from his study of the papers, checked by asking
10       through others for the evidence to be confirmed, that in
11       James Kerr he had an eye witness placing Ms McKie at the
12       house at a time when she had no reason to be there.
13           It would appear that it was this "theory", rather
14       than any inference from the fact that the print Y7 was
15       not disclosed by the aluminium powder, that was central
16       to Sheriff Murphy's approach to the prosecution.
17           The evidence that he anticipated from James Kerr is
18       explained in detail at paragraphs 12 to 15.  In short,
19       James Kerr had seen Ms McKie at the locus on Saturday
20       11th January 1997.  The log had marked him as having
21       left at 1.15 pm and, therefore, that sighting must have
22       been earlier than that time when Ms McKie had no reason
23       to be at the house, her attendance to collect the log
24       being later at 5.00 pm.
25           On this hypothesis, since her attendance earlier
page  95
 1       that day was not noted in the log, it had to be assumed
 2       that both Ms McKie and a log keeper were lying.  Sheriff
 3       Murphy says that it was PC Lees who was thought to have
 4       been the person most likely to have let Ms McKie into
 5       the house.
 6           For completeness, Sheriff Murphy said that he did
 7       not regard Ms McKie's access to the keys to the house as
 8       a matter of great evidential significance.
 9           Mr Kent.  Chapter 7 has raised issues about the
10       Crown's handling of the Kent report.  Sheriff Murphy has
11       been asked about this.  He is hampered by the incomplete
12       state of the Crown Office file.  He would have expected
13       any question about the sufficiency of expert reports to
14       have been dealt with long before his involvement and
15       says that he is certain that he did not give the matter
16       any further consideration when he became involved.
17           In the event, he did meet Mr Kent at some stage
18       before the trial began and I quote:
19           "He came up to give evidence and also because he was
20       concerned about the possible implications of the case."
21           Though the purpose of Mr Kent's evidence was to
22       discount the possibility of mark Y7 having been in some
23       way forged or planted at the locus, Sheriff Murphy does
24       remember discussing with him the 16 point standard and
25       the move towards a non-numeric process of
page  96
 1       identification.  He also says this and I quote:
 2           "Mr Kent also mentioned a case in England where a
 3       fingerprint had been successfully challenged; and that
 4       fingerprints were frequently challenged in the
 5       United States, something of which I was aware myself."
 6           Now Sheriff Murphy's account of the trial.  Sheriff
 7       Murphy gives an account of the progress of the trial
 8       from his perspective, from which it is clear that the
 9       prosecution did not pan out as expected.
10           Sheriff Murphy records two aspects of the case of
11       which he had been given no prior notice.  The first was
12       the fact that the 1993 incident when Ms McKie's print
13       had been found on an exhibit could have been
14       attributable to a defect in the gloves issued to her.
15       The second related to the strip searching of Ms McKie on
16       arrest, which Sheriff Murphy thinks created a poor
17       impression.
18           He also mentions a third point on which the evidence
19       as it was presented at the trial did not accord with the
20       impression that he had from the precognition, and that
21       relates to Ms McKie's prospects as a police officer.
22           He had no particular concerns about PC Lees'
23       evidence nor about the SOCO evidence regarding the
24       possibility that Y7 was deposited after the aluminium
25       dusting.
page  97
 1            James Kerr's evidence was, however, quite a
 2       different matter.  What he testified in court was that
 3       he had seen Ms McKie at the locus at about 5.00 pm when
 4       she had a legitimate reason to be there.  That removed a
 5       key piece of evidence that Sheriff Murphy had been
 6       relying on and he says that he began to become concerned
 7       because he was now relying solely on fingerprint
 8       evidence to place Ms McKie in the house and, from that
 9       point, the case became, in his words, "a battle between
10       the two sets of experts."
11           In the event, there also proved to be difficulties
12       with the SCRO evidence.
13           The first related to the poor quality of the
14       charting PC enlargements.  When they were magnified by a
15       projector the images were "very unclear and blobby".  By
16       contrast the defence productions were clearer.
17           The second related to the comparative performances
18       of the expert witnesses.  Sheriff Murphy suspects that
19       the American defence experts were more experienced in
20       giving evidence in court when fingerprints were
21       disputed.  In any event, they were more articulate in
22       explaining their position, whereas the SCRO witnesses
23       (Stewart, McBride and Macpherson) and I quote:
24           "... were not able to articulate a justification for
25       the opinion they had on particular aspects of the mark."
page  98
 1           Given the competing interpretations of Y7 by the
 2       experts, Sheriff Murphy says that by the close of the
 3       defence case he was very concerned about the strength of
 4       the Crown case and that it was extremely difficult for
 5       the jury to be satisfied beyond reasonable doubt that Y7
 6       was indeed Ms McKie's print.
 7           Dealing just finally before lunch with the knowledge
 8       of Mr Swann.  Sheriff Murphy has also been asked about
 9       his cross-examination of Ms McKie relative to her
10       knowledge of the examination of Y7 by other experts.  In
11       particular, he has been asked if he knew at the time
12       that the defence had instructed Mr Swann.  Sheriff
13       Murphy says that he did not know of Mr Swann's
14       involvement before the trial but he is fairly certain
15       that he did know this before the end of the trial.  His
16       recollection is that the information that he had had
17       come from SCRO.  As for his state of knowledge while
18       cross-examining Ms McKie, he says this and I quote:
19           "I did not think I knew of Peter Swann's
20       involvement, or had no way of verifying it, at the time
21       I was cross-examining Ms McKie, as I have couched my
22       questions to her on that point in general terms.  If I
23       had more information as to Peter Swann's involvement at
24       that time, I would have challenged Ms McKie much more
25       sharply about the matter than I ultimately did."
page  99
 1           Mr Mackenzie was not involved in the trial.
 2       However, he says that during the course of the trial he
 3       became aware that Mr Swann had advised the defence that
 4       he agreed the SCRO elimination of the prints as that of
 5       Ms McKie.  The ultimate source of this information was
 6       Mr Kent, who had apparently told Mr Hogg, who in turn
 7       told SCRO management.
 8           Mr Stewart also touches on the discovery of
 9       Mr Swann's name but it is not clear when he says that
10       this fact first became known.
11           Mr McKenna mentions that Mr Hogg spoke to the four
12       SCRO witnesses after he (Hogg) had found out that
13       Mr Wertheim was involved as a defence expert.
14           Then, sir, I am about to turn to the defence
15       productions.
16   THE CHAIRMAN:  That is a convenient moment to stop until
17       1.50.
18       (1.00 pm)
19                      (Luncheon Adjournment)
20       (1.50 pm)
21   MR MOYNIHAN:  Now to talk about defence production in the
22       McKie trial.
23           In terms of section 78 (4) of the Criminal Procedure
24       (Scotland) Act 1995, as it stood in 1999, the defence
25       had to give the prosecution notice of any defence
page 100
 1       witnesses and productions at least 10 days before the
 2       trial commenced, though there was provision for the
 3       trial judge to relax this requirement.  The legislation
 4       has since been amended.
 5           Assuming that the prosecution received the list of
 6       witnesses and productions on 16th April 1999, they were
 7       late, but no adjournment was sought.  In the statement
 8       noted from him by Operation Alba Sheriff Murphy is
 9       recorded as saying that he had a meeting with Donald
10       Findley QC around 16th April and that he had been given
11       advance notice that the American witnesses were to
12       dispute the identification of Y7 with the defence
13       productions coming some days later.
14           I am going to then turn to the SCRO perspective on
15       the trial.
16           Mr Dunbar was surprised that, as quality assurance
17       officer, he was not made aware of the challenge to the
18       SCRO evidence.
19           Mr McKenna was off work for health reasons at the
20       time of the trial and had no discussions with the
21       Advocate Depute.  Mr Macpherson has a recollection of a
22       brief meeting before the trial and having been shown the
23       defence production but says that there was no discussion
24       of best way to present his evidence.  He does add that
25       Mr Stewart had a meeting with the PF.
page 101
 1           Miss McBride says that when she gave evidence she
 2       was confused by the defence production because of the
 3       damage to the mark.  She did not think it was the same
 4       mark.  After she had given evidence she remained in
 5       court and she and Mr Stewart met with Mr Murphy each day
 6       to advise him.
 7           Mr Stewart says he recollects only one meeting with
 8       the Advocate Depute before the trial.  He was not told
 9       about the defendant's experts' opinion and productions
10       until a day or two before he was due to give evidence.
11       He was called to court to speak to Mr Murphy and, he
12       thinks, the Fiscal, Mr Bradley.  He was told that the
13       defence had consulted two American experts, Wertheim and
14       Grieve and that the defence was based on
15       mis-identification.
16           He was briefly shown the defence productions but was
17       not given the opportunity to examine them in detail.  It
18       observed that his evidence in cross was that he said he
19       had not seen defence production 2 in the form in which
20       it was put to him.
21           He cannot recollect any discussion with the Advocate
22       Depute about how fingerprint evidence should be
23       displayed or in relation to difficulties with the
24       chartered enlargements.  Though he remained in court to
25       listen to Mr Wertheim and Mr Grieve he has no
page 102
 1       recollection of being involved in advising the Advocate
 2       Depute during the trial.  He explains that his training
 3       was to stick to facts and to avoid assertions that
 4       involved speculation and hence he would not explain how
 5       distortion in the mark may have occurred.
 6           The post trial meeting.  After the trial, a meeting
 7       took place at the SCRO offices on 20th May 1999 to
 8       review the case and derive lessons.  SCRO were
 9       represented by Bell, Griffiths, Mackenzie, Stewart,
10       Macpherson and McBride and Crown Office by Murphy and
11       Crowe.  The minutes of the meeting are produced.
12           Mr Bell says that the meeting was at his request.
13       Sheriff Murphy explains that the reference in the
14       minutes to two people lying was to the need to prove
15       that Ms McKie plus a log keeper had lied in saying that
16       she had not entered the house.  As for the reference in
17       the minutes to the knowledge of Peter Swann, Sheriff
18       Murphy refers back to paragraph 28 of his statement,
19       which has been summarised already.
20           Sheriff Crowe.  He says that he and the Trial Depute
21       were concerned about the impact the case would have on
22       future cases that depended on fingerprint evidence.
23           The object of the meeting was to find out what had
24       gone wrong and how to sort it out to ensure there was no
25       repetition.
page 103
 1           He says that in the lead up to the trial he had his
 2       doubts about the quality of the SCRO fingerprint
 3       officers.  He felt that fingerprint officers had become
 4       de-professionalised over the preceding 25 years.  The
 5       civilian officers were essentially trained on the job
 6       and did not have forensic qualifications or breadth of
 7       experience.
 8           He had the feeling that some fingerprint officers,
 9       but not SCRO, "... would simply recite an acquired
10       mantra that they had found 16 points of similarity
11       between the mark and the accused's fingerprint and had
12       never known that to mean that two people could have the
13       same sequence of points of similarity."
14           That said, he was impressed with the knowledge and
15       experience of the officers present that day, notably
16       Mackenzie and Stewart.  They were able to give a clear
17       explanation of what might have gone wrong and were able
18       to point to things that the jury might not have liked.
19           He recounts Sheriff Murphy as having identified a
20       number of factors: (a) the difficulty of proving that
21       Ms McKie had an opportunity to enter the house; (b) the
22       contradicted expert evidence; (c) jury copies of Crown
23       productions being prepared with areas in the mark and
24       print, which were said to be similar, not being so
25       because the lines had "dropped"; and (d) the defence
page 104
 1       experts' evidence was slick and based on the non-numeric
 2       system that was seen, even by SCRO, as the way forward.
 3           Mr Mackenzie discusses the review meetings at
 4       paragraphs 130 to 132.  He was left with the impression
 5       that it was witnesses other than SCRO that had given
 6       rise to the problem.
 7           Mr Stewart adds little to the minutes beyond saying
 8       that it was not necessarily the case that the print must
 9       have been placed after the aluminium dusting.
10           Mr Macpherson's recollection was that Sheriff Murphy
11       told the SCRO witnesses that their integrity and
12       presentation skills were fine.
13           Miss McBride now has little recollection of this
14       meeting, though she says after she gave evidence
15       Mr Murphy told her that a witness had been lying, which
16       she understood to be a reference to a log keeper, and
17       that the Wertheim report had come in at the last minute
18       and that he could have asked for more time but decided
19       not to do so.
20           Following the review meetings, Mr Bell wrote his
21       letter to the Chief Constables of 2nd June 1999 and then
22       dealing with Lord Advocate's initial response.  Mr McKie
23       wrote to then Lord Advocate, Lord Hardie, by letter
24       dated 9th June raising a number of issues including the
25       question whether the SCRO witnesses were still acting as
page 105
 1       Crown experts and what steps the Crown were taking to
 2       avoid any potential miscarriage of justice in relation
 3       to fingerprint evidence.
 4           The Lord Advocate responded on 12th July through a
 5       member of his secretariat.  In this letter it was said
 6       that issues raised by the case had been the subject of
 7       investigation by the Lord Advocate including the
 8       conflict in expert evidence.  The official wrote and I
 9       quote:
10           "I can confirm that the Lord Advocate does not
11       propose to prevent the citation as prosecution witnesses
12       in appropriate cases from the officers from the Scottish
13       criminal records office who gave evidence for the Crown
14       in this case.  The Lord Advocate does not propose to
15       instruct review of the findings of those officers in
16       relation to other cases.
17           The issues that arise from this chapter of the
18       analysis are, first of all, this is the practical
19       culmination of the issues raised in chapters 6 and 7 and
20       to some extent it links to the issues in chapter 9 which
21       I am about to turn it.
22           Specific questions: did the Crown fail to take an
23       appropriate step by failing to exhaust the instructions
24       to Mr Kent?  What consequence flowed from the Crown's
25       failure to exhaust the instructions to Mr Kent?  Were
page 106
 1       the charted images produced for court accurate
 2       representations of the characteristics in sequence and
 3       agreement identified by the fingerprint examiners who
 4       signed them?  If not, what bearing did that have on the
 5       presentation of their evidence in court?  Were the SCRO
 6       witnesses properly trained to present fingerprint
 7       evidence to a jury in circumstances where that evidence
 8       was not routine and where a battle of experts was to
 9       occur?  Were the prosecution properly prepared to
10       present the SCRO evidence in the face of contradictors?
11           In due course, when opinion evidence is addressed, a
12       supplementary issue may arise and that is whether the
13       battle of experts was simply a matter of presentation of
14       different tenable views as to the interpretation of the
15       marks or a more fundamental question relating to the
16       proper identification of the marks.
17           Again, the witnesses are the people who have been
18       referred to in the narrative.
19           I then turn to chapter 9 which is the final chapter
20       in this presentation and it is review of the
21       fingerprints after the McKie trial and the treatment of
22       the SCRO staff.
23           A further review by SCRO in 1999 is where I begin.
24       The return of productions to SCRO is documented in a
25       letter dated 5th August 1999.  Mr MacKenzie says that
page 107
 1       after the productions were returned to SCRO in
 2       August 1999, he was requested by the Director, Mr Bell,
 3       to revisit the case in light of the acquittal.  He again
 4       studied an image of Y7 and the 1997 impressions of
 5       Ms McKie's prints and came to the same conclusion.  At
 6       this stage he began to prepare an extensive portfolio of
 7       material, including material that subsequently became
 8       available.
 9           In October 1999 he became aware of material on the
10       Internet, including images taken by Mr Wertheim.
11           The director of SCRO arranged a presentation to
12       Chief Constables when he became aware of the material
13       that Mr Mackenzie had amassed and the amount of time
14       that he had taken analysing it.
15           Mr Dunbar remembers that Mr Bell decided to review
16       the identification of Y7 in 1999 and says that
17       Mr Mackenzie took the lead in this work.  He recalls
18       that a fresh comparison and enlargements were prepared
19       and he did not come to any different conclusion.
20           Mr Bell speaks of a review of the prints by
21       Mr Mackenzie and Mr Dunbar on 20th May 1999, the day of
22       the meeting with the Crown Office.  Following that
23       meeting, he wrote to the Chief Constables on 2nd June.
24           Turning now to BBC Frontline.  The catalyst for
25       external investigations would appear to have been the
page 108
 1       first of two programmes, on 18th January 2000 and
 2       16th May 2000, broadcast by the BBC.  The transcript of
 3       one of those is on the web.  In it (that is the second
 4       one) Pat Wertheim and Allan Bayle opine that QI2 is not
 5       Marion Ross' mark.
 6           By this time the now Sheriff Crowe was the Deputy
 7       Crown Agent.
 8           In light of the first broadcast he was in contact
 9       with SCRO seeking clarification of the SCRO position and
10       obtained information from SCRO that the identification
11       of Y7 had been confirmed.  He contemplated that the
12       Justice Department might want Y7 independently reviewed
13       but this was superseded by the HM Inspectorate of
14       Scotland Investigation.
15           Sheriff Crowe explains that by then matters were
16       getting extremely political and it was decided to
17       involve HMIC because Mr McKie had no faith in
18       Strathclyde Police.
19           Turning to Lothian & Borders Police Fingerprint
20       Bureau, Mr MacKenzie said that on 7th February Lothian
21       & Borders Police Fingerprint Bureau was critical of SCRO
22       staff and management, accusing them of conspiracy based
23       on a review of the Internet material.
24           This may be a reference to the letter to the
25       Minister of Justice and Lord Advocate dated 26th
page 109
 1       January 2000 and appearing to have been written by a
 2       number of Lothian & Borders fingerprint officers.  That
 3       inference is consistent with Mr Bell's contemporaneous
 4       memo dated 1st February 2000.  It is to be noted that
 5       one of the people named in that letter (Miss Hannah)
 6       subsequently dissociated herself from it in a statement
 7       to Operation Alba.
 8           Meeting with Chief Constables.  Mr McKie has
 9       provided a redacted copy of the minutes of the meeting
10       of the SCRO Executive Committee on 7th February 2000.
11       These record that an update was given in relation to the
12       McKie case introduced by Mr Bell and featuring a
13       presentation by Mr Mackenzie and Mr Dunbar.  This
14       document in an unredacted form can be found on the
15       Inquiry hearing database.
16           Mr Mackenzie gave evidence in relation to this
17       meeting with Chief Constables on 7th February 2000.
18       Mr Dunbar confirms that he was in attendance but the
19       presentation was that of Mr Mackenzie.  In light of the
20       minutes, this can be understood to have been a
21       presentation to the SCRO Executive Committee.
22           The Internet material that Mr Mackenzie had by then
23       gained access to included nine different images of
24       Ms McKie's left thumb taken by Mr Wertheim.  Using one
25       of the nine impressions, Mr MacKenzie says he was able
page 110
 1       to identify additional ridge detail in the area above
 2       the fault line and also on the extreme right-hand edge
 3       of the mark.  That material enabled him to be even more
 4       positive in his conclusion.  The Internet material also
 5       enabled him to add third level detail to the
 6       presentations made to the Chief Constables, which he had
 7       included by the time that he came to make a presentation
 8       to HMI staff and, later still, Mr Taylor.
 9           HMIC Scotland, Mr Taylor.  Sir William Rae says that
10       the BBC programme was raised as urgent business at the
11       ACPOS meeting on 7th February 2000.  The minutes of that
12       meeting, which included the presentation by Mackenzie
13       and Mr Dunbar are available to the Inquiry.
14           That day ACPOS asked Mr Taylor to review the McKie
15       case as part of his inspection of SCRO.  HMICS brought
16       forward its scheduled review of SCRO.  The final report
17       is also available to the Inquiry.
18           HMICS examined the McKie case as one of 24 cases
19       that formed the basis of its review.  It did so with the
20       assistance of three fingerprint experts, including
21       Mr Rudrud and Mr Zeelenberg.  HMICS was advised that Y7
22       was not the print of Ms McKie.  HMICS disclosed its
23       emerging findings on 21st June 2000.  HMCIC was a unable
24       to endorse SCRO Fingerprint Bureau as being efficient
25       and effective.  Sir William Rae says that the
page 111
 1       implications were serious; indeed, he says that the term
 2       crisis is not unreasonable.
 3           These emerging findings formed the basis of an
 4       emergency statement to the Scottish Parliament by the
 5       Deputy First Minister (and Justice Minister) on
 6       22nd June 2000.
 7           Just dealing with Mr Rudrud and Mr Zeelenberg, HMIC
 8       had instructed Rudrud and Zeelenberg to examine Y7.
 9       Their report is dated 28th June 2000 and a copy is on
10       the database.  They concluded that Y7 was not the left
11       thumb print of Ms McKie.
12           Now the Scottish Executive and Lord Advocate's
13       response.  On 22nd June 2000, the Deputy First Minister
14       made a statement to the Scottish Parliament in response
15       to the emerging findings of the HMCIC report.  He
16       announced that ACPOS was to set up a review group under
17       the chairmanship of William Rae.
18           The Lord Advocate made two announcements.  In all
19       current and future cases involving SCRO fingerprint
20       evidence an external check would be carried out.  As for
21       the Asbury case, he advised Parliament that he had
22       instructed that independent experts examine the
23       fingerprint evidence, with the results to be
24       communicated to Mr Asbury's solicitors.
25           On 26th June 2000, Iain McKie wrote to Jim Wallace
page 112
 1       the Deputy First Minister.  The letter contains five
 2       areas that required to be addressed.  The first is that
 3       the Crown prosecution of Ms McKie was ill-conceived and
 4       oppressive and the officers of the Crown Office failed
 5       to take action on matters raised before, during and
 6       after her trial which clearly pointed to her innocence
 7       and the possible guilt of SCRO and its officers.  The
 8       third is that Charles Stewart, Hugh Macpherson, Fiona
 9       McBride and Anthony McKenna should be investigated in
10       respect of possible perjury and criminal conspiracy
11       committed by them at the trials of David Asbury and
12       Shirley McKie.
13           Three matters emerged from the emerging HMCIC
14       findings and the letter from Mr McKie: ACPOS set up a
15       Presidential Review Group chaired by Mr (now Sir)
16       William Rae.  Mr William (now Sheriff) Gilchrist was
17       appointed to report to the Lord Advocate specifically in
18       relation to the criminal allegations.  His letter of
19       instruction is dated 6th July 2000.  Mr Crowe was tasked
20       with liaising with SCRO to restore a normal service in
21       relation to the fingerprint evidence in criminal cases.
22           Sheriff Crowe refers to the minutes of the meeting
23       on 10th July 20 to show that arrangements were made to
24       enable all three to be kept informed of the progress of
25       the investigations.  However, his letter of 11th
page 113
 1       July 2000 discloses that the fact that the Asbury appeal
 2       remained live created some sensitivities.
 3           On 23rd June 2000 Mr Crowe wrote to Mr Rae regarding
 4       the arrangements for checking fingerprint
 5       identifications.  Mr Rae responded by letter dated 27th
 6       June 2000.
 7           Dealing with expert reports by Graham, Rokkjaer and
 8       Rasmusson.  The Lord Advocate had said that the Crown
 9       would commission an independent review of the
10       fingerprint.
11           Sheriff Crowe says this: under reference to his
12       letter of 6th July 2000, he states that the Crown
13       instructed Mr Graham to carry out a review and obtain a
14       report from him dated 23rd June 2000.  Sheriff Crowe is
15       not sure if it was appreciated at the time that he had
16       had a previous involvement.  However, he says that the
17       report was not of great quality.
18           With the fact that Allan Bayle of New Scotland Yard
19       had been involved in the BBC documentary, relations
20       between the Scottish forces and Scotland Yard were
21       soured and it was decided that it would be better to use
22       experts from outside the UK.
23           Around July 2000 it was agreed with the
24       Lord Advocate that the Crown would have the three main
25       marks (Y7, QI2 and XF) reviewed by foreign experts who
page 114
 1       would be respected by the police and the wider
 2       community.  The police were content with the appointment
 3       of the Danish experts, Kristian Rokkjaer and Frank
 4       Rasmusson.
 5           Sheriff Crowe was present when Rokkjaer and
 6       Rasmusson visited the Kilmarnock Procurator Fiscal's
 7       office on about 31st July to examine the productions.
 8       He does not think that they examined Y7 because that was
 9       the subject of another investigation.  Mr Crowe decided
10       to precognosce them that day because he was under
11       pressure to have the marks relevant to the Asbury case
12       checked.  We have the statement taken in Kilmarnock on
13       31st July, which was Mr Rasmusson's finding regarding
14       QI2 is summarised and there is a brief corroborating
15       statement from Mr Rokkjaer also available to the
16       Inquiry.
17           The opinion of the Danish experts was therefore
18       known to the Crown on 31st July 2000.  The Danish
19       experts reported in writing on 7th August 2000.
20           They accepted the identification of XF as the
21       fingerprint of David Asbury.  They concluded that the
22       part of QI2 attributed to Miss Ross was not her print.
23       They similarly contradicted the identification of QD2 as
24       the print of David Asbury.  They concluded that the
25       quality of two other photographs was insufficient for
page 115
 1       identification, thereby contradicting SCRO: the two
 2       prints being the part of QI2 identified as Asbury and
 3       QL2.
 4           In a letter dated 1st February 2006, Frank Jensen of
 5       the Danish National Police subsequently agreed the
 6       identification of QD2 as the print of David Asbury.  His
 7       letter narrates that his department had been contacted
 8       by Mr Zeelenberg who suggested that the original opinion
 9       to the contrary must have been mistaken.
10           On 21st June, having heard the emerging findings of
11       HMCIC, ACPOS then set up a presidential review group
12       which in turn set up two reviews: a change management
13       review team lead by Deputy Chief Constable McInnes and
14       an investigation into the circumstances surrounding the
15       fingerprint identifications led by Deputy Chief
16       Constable Mackay.
17           Mr Mackaykay was appointed on 23rd June 2000.  The
18       Terms of Reference are set out in paragraph 1.3 of his
19       report, which is produced.  Shortly after he was
20       appointed, Mr McKie made his allegations of criminal
21       conduct and on 6th July the Lord Advocate appointed
22       Mr William (now Sheriff) Gilchrist to investigate.  Sir
23       William Rae explains that this led to a change in role
24       for the MacKay team, with them now supporting the
25       criminal investigation and reporting to the Regional
page 116
 1       Procurator Fiscal, Mr Gilchrist.
 2           Sir William Rae did not know of the review of the
 3       fingerprint evidence that the Crown was undertaking in
 4       relation to the Asbury appeal.
 5           Initially, Mr Mackay's remit related to Y7 but on
 6       7th September 2000 it was verbally extended to cover QI2
 7       and that was confirmed in writing by Mr Gilchrist on
 8       14th September following receipt of the Rokkjaer and
 9       Rasmusson report.
10           Detective Chief Constable Mackay also referred to in
11       this analysis as Operation Alba instructed fingerprint
12       experts at the National Training Centre, Durham, to
13       examine fingerprints in this case.  Significant
14       documents produced as a result of their work are the
15       synopsis of a meeting between Detective Chief
16       Superintendent Robertson and Ablett and Shepherd on
17       2nd August 2000; a report on Y7, dated 27/28th
18       September 2000; and a brief report on QI2 dated
19       19th October 2000.  Mackay submitted his report on
20       20th October 2000.  Subsequently, on 29th November 2000
21       Mr Gilchrist asked Mr Mackay to commission a more
22       detailed report from the National Training Centre,
23       Durham.  That yielded the report dated June 2001.
24           Dealing with suspensions.  On 3rd August 2000
25       Mr Harry Bell, the Director of SCRO, suspended McBride,
page 117
 1       Macpherson, Stewart and McKenna.  Mr McKenna says that
 2       he was fishing at the time and found out from his wife
 3       who had read it in the paper.
 4           Ms McBride thinks that Rokkjaer and Rasmusson's
 5       opinion that QD2 had been misidentified was instrumental
 6       in triggering the suspension and Mr Macpherson has the
 7       same understanding.  Mr McKenna wonders if it had some
 8       bearing on the suspension.
 9           A decisive matter seems to have been a consultation
10       between the Alba team and the National Training Centre
11       experts on 2nd August 2000 of which a synopsis is
12       produced.  The National Training Centre experts had
13       reported they would conclude there had been collective
14       manipulation and collusion on the part of the SCRO
15       officers, in the absence of any other adequate
16       explanation.
17           Detective Chief Constable Mackay wrote to Mr Rae on
18       3rd August 2000.  That letter drew on the conclusions of
19       Rudrud and Zeelenberg, Mr Wertheim and the National
20       Training Centre, Durham, regarding the
21       mis-identification of Y7.  It does not refer to the
22       conclusions of the Danish experts.
23           Sir William Rae deals with the circumstances that
24       led to the suspension.  He summarises the position in
25       paragraph 71.  The ACPOS presidential review group met
page 118
 1       on 2nd August 2000 to consider interim reports from
 2       McInnes and Mackay.  After that meeting Mackay phoned
 3       Sir William Rae and told him of the findings of the NTC,
 4       Durham, and the opinion that there had been some form of
 5       manipulation and collusion.  Mention was made of Rudrud
 6       and Zeelenberg and Wertheim.  The letter of 3rd August
 7       was written confirmation of that telephone call.
 8           The telephone call on 2nd August and consequential
 9       contact on 3rd August referred to in Mr Mackay's diary.
10       Sir William viewed this as substantive evidence
11       supporting the allegation of criminality and concluded
12       that this made the position of the four SCRO officers
13       untenable.
14           Sir William spoke to the other members of the
15       presidential review group who agreed with him.  He also
16       spoke to Mr Duncan, the Deputy Chief Constable of
17       Strathclyde.  The governing body with supervisory
18       responsibility for SCRO was the SCRO Executive Committee
19       chaired by Sir William.  Sir William knew that he did
20       not have the authority to suspend anyone, so he phoned
21       Mr Bell as head of SCRO, explained the position to him,
22       asked that he suspend the officers and documented this
23       contact by letter dated 3rd August.
24           Mr Bell did "precautionary suspend" the four experts
25       that day.  Sir William accepts that the reason given for
page 119
 1       the suspension is likely to have reflected his letter.
 2           After consulting with other members of the
 3       presidential review group, Sir William prepared a press
 4       release.
 5           The formal reason for the suspension is quoted in
 6       appendix 3 to the Black report.  Mr Bell's account of
 7       the suspension is this: he was, contacted by Sir William
 8       Rae.  He thinks that contact was initially by telephone,
 9       and followed by a fax.  He was aware of the impact that
10       suspending the officers would have on the team, and that
11       it would prompt further media speculation.
12           He himself did not know the grounds for suspension
13       in detail.  At the time he was regularly in discussion
14       with Sir William Rae.  Sir William Rae telephoned and
15       told him that following on from a presentation or
16       information from Mr Mackay that it would be appropriate
17       to consider suspending the officers.  As he (Bell) was
18       the director, he was the individual who would have to
19       suspend them.  He was not told what the information from
20       Mr Mackay consisted of.
21           He suspended the officers on receiving written
22       confirmation from Sir William Rae.
23           Crown Office involvement at this stage seems to have
24       been limited at most.
25           Lord Boyd of Duncansby QC says that he had no
page 120
 1       involvement in the decision.
 2           Mackay's diary reveals that at 9.30 am on 3rd August
 3       he spoke to Frank Crowe, who was at that stage still
 4       awaiting the report from the Danes, although he did know
 5       the conclusions that they had reached.  The diary entry
 6       records Mr Crowe as making the comment, "It now fits
 7       into place."
 8           Sheriff Crowe now has no recollection of that
 9       conversation but accepts that it is consistent with what
10       he would have been alerting people to at the time: a
11       mis-identification of another print in the same case was
12       very serious.  Consequently, though he has no
13       recollection of any involvement in the suspension, he
14       suspects that it may have been related to him telling
15       Mr Bell what the Danes had found.
16           At 10.30 am on 3rd August, the Mackay diary records
17       contact with Mr Rae regarding disclosure of information
18       with the SCRO director "... in order that he can
19       suspend."
20           The director at the time was Harry Bell.
21           Scott Robertson's diary indicates that he briefed
22       Mr McKie to expect an announcement on 3rd August and he
23       informed Mr Gilchrist's secretary that the four experts
24       had been suspended.
25           I then turn to Tulliallan.  A facilitated meeting of
page 121
 1       experts took place at the Scottish police training
 2       college at Tulliallan on 15th August.  The meeting
 3       featured Mr Mackenzie and Mr Dunbar representing the
 4       SCRO position and Mr Zeelenberg and Mr Rudrud
 5       representing the contrary view.
 6           Mr Mackenzie explains that this was part of the
 7       ACPOS presidential regrew group process.  The
 8       facilitated meeting was consistent with the Mackay's
 9       Terms of Reference, which included examining the
10       differences of opinion between the SCRO witnesses and
11       the witnesses who advised Taylor.
12           The suspension occurred while preparations were
13       being made for that meeting.  Mr Mackenzie is critical
14       of the failure to allow the suspended officers to attend
15       Tulliallan.  Sheriff Crowe explains that it was not
16       thought appropriate to permit the four SCRO officers to
17       attend because with HMICS's emerging findings they were
18       possible suspects on a charge of perjury and it was not
19       appropriate to give them a false sense of security or to
20       lull them into incriminating themselves.  This was
21       discussed at the meeting on 10th July 2000.
22           The SCRO staff had wanted Swan, Berry and Graham to
23       be present but that did not happen.
24           The minutes of the meeting are produced as are
25       Mr Mackenzie's comments.  Mr Mackenzie says that he and
page 122
 1       Dunbar made a joint presentation.  Mr Dunbar, again says
 2       that the presentation on Y7 was essentially the work of
 3       Mr Mackenzie.
 4           Mr Mackenzie's account.  They gave a hand-out
 5       entitled "The McKie case revisited" of which the Inquiry
 6       has a copy but Mackenzie points out that the Kent
 7       photograph was a later addition.  This was supplemented
 8       by photographic enlargements and a PowerPoint
 9       presentation.  He used the second elimination form
10       obtained on 18th February because of its greater detail.
11       Their presentation contained third level detail.  Under
12       reference to page 7 to 8 of the minutes he explains that
13       with the benefit of the Internet copy of the left thumb
14       print of Ms McKie he was able to demonstrate 21
15       characteristics.  He said that Rudrud and Zeelenberg
16       adopted the stance that the mark was more like a right
17       thumb print until the doorframe was produced when they
18       conceded that it could be a left thumb print.
19           Mr Mackenzie alleges that during a break
20       Mr Zeelenberg attempted to coerce him to change his
21       opinion with veiled threats, which effectively brought
22       the meeting to a close.
23            Mr Rudrud remained professional.
24           Prior to closure of the meeting Mr Mackenzie says
25       for the first time Wertheim's defence production and an
page 123
 1       enlargement of a Kent photograph, that he saw these for
 2       the first time.  A request was subsequently made for
 3       copies to be sent to SCRO and these were received within
 4       a few days.
 5           MacKenzie said that on 17th August 2000 Dunbar
 6       received a telephone call from Mr Zeelenberg in which
 7       the latter threatened a malpractice complaint.
 8       Mr Mackenzie and Dunbar repeated their McKie
 9       presentation.
10           Mr Dunbar's account.  A request was made for the
11       four experts to attend but they were then suspended and
12       all that was allowed was union representation.  Dunbar
13       had recently attended a course in Durham on ridgeology
14       conducted by Ashbaugh and Bale.  Dunbar gave very a
15       brief, general introduction.  Rudrud and Zeelenberg used
16       a Wertheim image of Y7 and an enlargement of a court
17       production prepared by Ed German.  Zeelenberg said it
18       was all one print but he could not exclude a double
19       touch.  He and Dunbar were surprised by Rudrud and
20       Zeelenberg saying that the mark was indicative of a
21       right thumb.  After the doorframe was examined Rudrud
22       and Zeelenberg conceded that it could be a left thumb
23       print as it could be seen that there was a double touch
24       or movement in the mark.  During a break Zeelenberg was
25       threatening towards Mackenzie and Dunbar and that caused
page 124
 1       the latter to bring the meeting to a close.  Within a
 2       couple of days of this meeting Dunbar took a call from
 3       Zeelenberg in Mackenzie's absence.  Zeelenberg accused
 4       them of trying to deceive the fingerprint community and
 5       said that he would call foul if SCRO continued with its
 6       stance.
 7           Mr Mackenzie and Mr Dunbar moved to nonoperational
 8       duties.  On 23rd August 2000 Rudrud and Zeelenberg
 9       submitted comments on the SCRO presentation at
10       Tulliallan reaffirming their conclusion that Y7 was not
11       the fingerprint of Ms McKie.  Mr Mackenzie also prepared
12       an additional report dated 29th August 2000, adhering to
13       the identification of Y7 as the left thumb print of
14       Ms McKie.  That report took into account the points of
15       similarity of Y7 taken by Mr Kent.
16           In September 2000 Mr Mackenzie and Mr Dunbar were
17       transferring from operational fingerprint work to
18       nonoperational duties at SCRO.  This followed
19       communication between Mackay and Sir William Rae.  In
20       short, Mr Mackay had seen the production of the Kent
21       images of Y7 as an opportunity for Mackenzie and Dunbar
22       to depart from what MacKay regarded as the clearly wrong
23       identification of Y7 as the fingerprint of Ms McKie.
24       The fact that they did not do so led MacKay to conclude
25       that their positions were untenable.
page 125
 1           Sir William Rae, again his statement covers this, he
 2       addresses this correspondence at paragraphs 75 to 77.
 3       He comments that the fact that Mackenzie and Dunbar
 4       continued to be unshaken in their belief in face of
 5       contrary opinion raised questions about their competence
 6       and capability and was likely to undermine the efforts
 7       to restore the reputation of SCRO.  Sir William
 8       discussed matters with the Presidential Review Group and
 9       Deputy Chief Constable Duncan and all agreed that the
10       officer officers should be redeployed.  He spoke to
11       Mr Bell who agreed that they be redeployed.
12           Now Mr Bell's evidence.  The decision to put
13       Mackenzie and Dunbar on nonoperational duties emanated
14       from discussions with Sir William Rae.  Mr Bell presumes
15       that this resulted from the Mackay Inquiry.  He spoke
16       with UNISON and with Strathclyde Police personnel
17       department.  Following discussion with UNISON the
18       officers were put on nonoperational duties.  On
19       nonoperational duties the officers would not be involved
20       in fingerprint examinations, comparisons or
21       identifications, and would not go to court, other than
22       in "historical" cases.  They might, however, be required
23       to confirm identifications on Saturday mornings when
24       only one expert was on duty.
25           The disciplinary procedure.  In May 2001 the
page 126
 1       director of SCRO advised Mackenzie, Dunbar, Macpherson,
 2       Stewart, McBride and McKenna that after the conclusion
 3       of the Crown's assessment of a criminal case there would
 4       require to be an evaluation of any disciplinary issues.
 5       Meantime, the first two remained on nonoperational
 6       duties and the other four remained suspended.
 7           This led in due course to the Black report after the
 8       Crown had decided not to prosecute.
 9           The Gilchrist report.  Mr (now Sheriff) Gilchrist
10       had been appointed by the Lord Advocate to investigate
11       the allegations of criminal conduct.  His letter of
12       instruction is dated 6th July 2000 and his written
13       report was submitted on the anniversary of his
14       appointment.
15           Sheriff Gilchrist has provided a statement.  He
16       explains that he met Mr McKie and Mr Cassells on 14th
17       July 2000.  Among the matters raised by Mr McKie at that
18       meeting was an allegation by Mr McKie that QI2 was not
19       Miss Ross' fingerprint and, accordingly, his allegations
20       of criminal conduct encompassed both marks and Sheriff
21       Gilchrist concluded that his investigation should also
22       cover QI2.  He wrote to the then Mr Crowe to that effect
23       on 14th July 2000 and received a
24       confirmatory instruction from the Lord Advocate
25       via Mr Crowe on 13th September 2000.
page 127
 1           On 29th November 2000, Mr Gilchrist asked Mr Mackay
 2       to commission a detailed report from the National
 3       Training Centre, Durham.  That yielded the report dated
 4       June 2001.
 5           Sheriff Gilchrist explains his thinking behind
 6       seeking assistance from Durham.  He had to go beyond
 7       considering whether or not the marks had been correctly
 8       identified.  He had to look at what the SCRO officers
 9       had done, and to investigate whether or not it could be
10       proved beyond reasonable doubt that they had either
11       deliberately misidentified one or both of the marks or
12       had wilfully failed to admit to a mistake.  This
13       required expert evidence addressed to the material as
14       seen by the SCRO officers.
15           Having met with the experts from NTC, Durham,
16       Mr Gilchrist wrote to Mr Crowe on 13th June 2001
17       indicating that he was minded to interview the four
18       experts who had supported the SCRO identifications:
19       those experts being Mackenzie, Dunbar, Swann and Graham.
20       Anticipating that these experts would be called as
21       defence witnesses in any prosecution, he was proposing
22       to put the Durham material to them to judge their
23       reaction to what the prosecution case might be against
24       the SCRO officers and also to see if this material
25       caused any of these four officers to change their
page 128
 1       positions.  In the event, he was only able to interview
 2       Swann and Graham.  Sheriff Gilchrist says that he had to
 3       assess the strength of any defence case and that the
 4       Crown had to look at any potentially exculpatory
 5       evidence.
 6           Sheriff Gilchrist confirms that he did meet with
 7       Mr Graham and Mr Swann but he now has little
 8       recollection of those meetings beyond what was in his
 9       report.
10           Mr Gilchrist submitted his report to Crown Office
11       under cover of a letter dated 6th July 2001.  He had not
12       by that stage spoken to Mr Mackenzie and Mr Dunbar.
13       This letter discloses that, having completed his
14       investigation into the allegations of criminal conduct,
15       he wanted to revert to SCRO to give them a further
16       opportunity to consider QI2 for the purposes of the
17       Asbury case.
18           Sheriff Gilchrist details his subsequent contact
19       with Mr Mackenzie regarding QI2.  He says that the
20       discussions with Mr Mackenzie were to assess the
21       strength of the Crown case against the SCRO officers and
22       not primarily in relation to the Asbury appeal and the
23       fact that Mr Mackenzie was on nonoperational duties did
24       not concern him because Mr Mackenzie was not being
25       viewed as "independent".  The material that he received
page 129
 1       from Mr Mackenzie was: covering letters from
 2       Mr Mackenzie and Mr Bell dated 27th July 2001, a report
 3       by Mr Mackenzie on QI2 and an accompanying booklet dated
 4       19th February and 27th July 2001.
 5           Mr Mackenzie discusses the fact that he was
 6       consulted during the Gilchrist investigation.  He was
 7       asked by Gilchrist to express an opinion on QI2 and did
 8       so in a report dated 27th July 2001.  The Inquiry
 9       database document CO0026 was the book that accompanied
10       that report.  He found 29 ridge characteristics and 23
11       incipient ridges in sequence and agreement.
12           He followed that up with transparencies in
13       February 2002.  Those showed third level detail in
14       agreement.
15           Subsequently, after hearing that Asbury's conviction
16       had been quashed he contacted his MSP Mr Fitzpatrick, to
17       ask the Lord Advocate why his QI2 report was not put
18       before the Appeal Court.  He understand that the
19       Lord Advocate acknowledged that his report existed but
20       it would seem that the Lord Advocate had dismissed it
21       because it came from a SCRO officer.
22           Sheriff Gilchrist now has little recollection of the
23       material supplied by Mr Mackenzie in February 2002
24       relating to third level detail.
25           Mr Dunbar says that the department was approached
page 130
 1       with a view to him doing a report for Gilchrist but the
 2       task fell to Mr Mackenzie because he was on holiday.
 3           Mr Gilchrist reported on his consultation with
 4       Mr Mackenzie in a letter dated 19th July to Mr Crowe.
 5           Crown Office consideration of the Gilchrist report
 6       and decision not to use SCRO four as witnesses.  The
 7       Inquiry has two handwritten notes to the Lord Advocate
 8       (the now Lord Boyd of Duncansby) from Mr Crowe.
 9       Although these are contained together in one document
10       and appear to have been marked with sequential page
11       numbers, they appear to be separate memoranda dated
12       respectively 9th and 20th July 2001.  The memo of
13       9th July reads and I quote:
14           "I attach RPF Paisley's report on the fingerprint
15       evidence in the McKie and Asbury cases.  This exercise
16       has taken a considerable time and the report is at times
17       difficult to follow without all of the productions to
18       hand and a detailed explanation of them.
19           "On the other hand it seems clear that there is no
20       basis for criminal proceedings.
21           "We are dealing with opinion evidence and for
22       perjury or attempt to pervert charges to be established
23       we would have to show the SCRO evidence was untenable.
24           "While an array of experts are of the view there
25       have been mis-identifications, there are other
page 131
 1       independent experts, Swann and Graham, who still agree
 2       with SCRO.  There seems no basis for proceeding since a
 3       jury would be unlikely to be able to cope with being led
 4       through microscopic examinations of the fingerprints and
 5       similarities/differences.
 6           "I favour taking an early no pro decision and am
 7       referring the matters back to police to discipline the
 8       officers.  While there remains a doubt about the
 9       mis-identifications I cannot see the officers being
10       accepted as credible witnesses in the future.  That may
11       be for SCRO to decide.
12           "I see no point in marking the case no pro in the
13       meantime since we are at present left with two distinct
14       camps, the SCRO suspended officers and colleagues and
15       Swann and Graham v Wertheim, HMIC experts, the Danes,
16       the Durham experts and many others who viewed the prints
17       on the Internet and agreed with Mr Wertheim.
18           "I consider an early decision on the SCRO officers
19       desirable as proceedings seem likely to be
20       unsuccessful."
21           The memo of 20th July reads:
22           " RPF has now seen the SCRO Deputy Head of Bureau
23       who saw the McKie print at an early stage and sided with
24       the four suspended officers.  As can be seen, even when
25       confronted with the other opinions, Mr Mackenzie still
page 132
 1       articulates a case for saying the disputed mark belongs
 2       to Shirley McKie.
 3           "RPF may be right that certainty is not possible
 4       here.  What we have is a mark which apparently
 5       (according to SCRO) discloses 16 points of similarity
 6       and, therefore, must be Ms McKie's whereas other
 7       experts, perhaps using a wider non-numeric approach, see
 8       differences in the areas of incompatibility which lead
 9       them to conclude that the mark is not Ms McKie's.
10           "Either way there is no basis for a prosecution.  I
11       consider a decision should be taken now and
12       consideration given as to how to inform the SCRO four,
13       the McKies and the public.
14           "I think we can only offer the other opinions to
15       SCRO and leave them to sort what they do with the
16       suspended officers.  If they were reinstated their
17       evidence would always be subject/liable to challenge yet
18       we know other SCRO officers of a similar view continue
19       to work in the organisation.
20           "I still worry about the system's and our ability to
21       deal with fingerprint identifications that are said to
22       be difficult or problematic.  None of this was alluded
23       to at the outset and I am concerned how a disputed mark
24       might be dealt with in future."
25           The Lord Advocate's response is dated 21st
page 133
 1       August 2001 and must have been directed to Mr Gilchrist
 2       who had succeeded Mr Crowe as DCA when the latter became
 3       a Sheriff on 2nd August 2001 and it reads:
 4           "Thank you for your comprehensive report given in
 5       your former capacity on this matter.  I agree with your
 6       main conclusions -- that there is no prospect of
 7       persuading a jury that the evidence given by the SCRO
 8       officers was a given dishonestly.  Accordingly, I do not
 9       see any need myself to meet the officers from Durham.
10       It seems to me that since both Peter Swann and Malcolm
11       Graham have supported at least some of the SCRO
12       findings, as well as other SCRO officers, that there was
13       sufficient there to raise a reasonable doubt in the
14       minds of the jury.
15           "There are, however, other issues about how we
16       handle the decision, who we inform and what we do about
17       using these officers in future.  These will be discussed
18       separately."
19           The contemporaneous documents are reasonably
20       comprehensive.  Lord Boyd of Duncansby does not add to
21       the content of the contemporaneous documents, nor does
22       Sheriff Crowe beyond spelling out that they doubted that
23       the four SCRO witnesses could give evidence again
24       because it was inevitable that they would be
25       cross-examined on the basis that they were among the
page 134
 1       "SCRO four" and moreover that a doubt was likely to
 2       remain over these officers.  That precis primarily
 3       reflects the evidence of Sheriff Crowe but Lord Boyd is
 4       to the same effect.  The memo of 21st August envisages a
 5       further discussion about whether the officers can be
 6       "used" in future.  Lord Boyd of Duncansby recollects
 7       that there were a number of discussions on the point and
 8       believes that the outcome of the discussion must be
 9       documented.
10           The Crown Office has supplied the Inquiry with a
11       supplementary file of papers addressing the use of the
12       four suspended SCRO officers (Macpherson, Stewart,
13       McBride and McKenna) as witnesses in criminal trials.
14           Mr Gilchrist, as DCA, sent a memo to the
15       Lord Advocate on 7th September 2001 acknowledging that
16       this was at outstanding issue but advising that no
17       decision needed to be taken by the Crown Office until
18       after SCRO had decided whether or not to take
19       disciplinary action.
20           After some internal exchanges, the Lord Advocate
21       decided on 27th March 2002 that he did not need to make
22       a judgment at present because the matter currently
23       rested with SCRO.  However, Crown Office was not given
24       access to the Black report and on 11th April the
25       Lord Advocate instructed the DCA to discuss this with
page 135
 1       Mr Bell, with the Lord Advocate observing and I quote:
 2           "To be blunt, I find it difficult to understand how
 3       the tribunal came to its conclusions standing our own
 4       view of what went wrong.
 5           Mr Gilchrist met Mr Bell and reported back to the
 6       Lord Advocate by memo dated 24th May 2002.  His
 7       recommendation was that the Crown await developments and
 8       the Lord Advocate agreed.  Mr Bell had said that no one
 9       of the four would be used to identify fingerprints for
10       the foreseeable future but that if any of them wanted to
11       be involved in criminal cases and Mr Bell felt that they
12       were ready for such work, he would contact Crown Office
13       to ascertain if the Crown was willing to accept reports
14       from them.  However, the memo says that "... no such
15       approach will be made until after the civil proceedings
16       have been concluded."
17           Mr Bell confirmed in writing by letter dated 31st
18       May that if he considered using the four officers "for
19       evidential purposes" he would meet with the Crown.
20           Mr McKie has supplied the Inquiry with a copy of a
21       letter from Mr Gilchrist to Mr Bell dated 9thJuly in
22       which Mr Gilchrist wrote and I quote:
23           "The Crown's position remains that of not wishing to
24       reach a view on the use of the four experts until the
25       civil and appeal proceedings have been concluded."
page 136
 1           On 12th February 2004, Mr Bell notified Crown Office
 2       that the four officers had successfully completed the
 3       return to work programme and were considered capable of
 4       returning to full duties "and as such should now be
 5       included on the Crown Office list of expert witnesses."
 6           Mr Gilchrist updated the Lord Advocate by memo dated
 7       10th March 2004.  The recommendation was to await
 8       further developments in the civil action before
 9       indicating whether the Crown would be prepared to use
10       reports from these officers in criminal cases.  The
11       Lord Advocate agreed, subject to the reservation that
12       "he would not wish matters to be delayed too long."
13           Mr Gilchrist wrote to Mr Bell by letter dated
14       12th March 2004 saying that Crown Office would await the
15       expert report commissioned by the Justice Department in
16       relation to the civil proceedings.
17           In December 2005 John McLean, by now the director of
18       SCRO, sought an update and on 16th January 2006
19       Mr Brisbane, the successor as DCA, wrote that there was
20       no change because the civil proceedings were imminent.
21           Following the settlement of the civil action,
22       Mr Brisbane sent a memo to the law officers dated
23       27 March 2006.  The memo addressed not only the four
24       suspended officers but also the two supervisors.  It
25       noted that the complications of the leaking of the
page 137
 1       Mackay report and the characterisation of the officers'
 2       conduct as an "honest mistake."
 3           On 28th March, the Lord Advocate appended his own
 4       manuscript note:
 5           "I consider that it would not be appropriate to have
 6       the SCRO personnel involved in the McKie case as
 7       witnesses in criminal trials in the future.  For the
 8       reasons discussed today."
 9           It is not clear whether that was actioned because
10       the Justice 1 Committee investigation intervened.
11           The Lord Advocate was asked about this when he have
12       evidence to the Justice 1 Committee on
13       12th September 2006.  The official report records:
14           "THE CONVENER:  I understand that the officers
15       involved in the Shirley McKie case have not given
16       evidence since the trial.  That is quite a long time.
17       Will you confirm that the Crown does not intend to call
18       them as expert witnesses in the future?
19           "THE LORD ADVOCATE:  The matter is under discussion,
20       but it is fair to say that there are considerable
21       difficulties in that regard.  Frankly, the situation has
22       not been helped by the unauthorised disclosure of
23       Mr Mackay's report.  I have enormous sympathy with the
24       SCRO, some of whom are very experienced and have given
25       very good service.  However, my job is to ensure that
page 138
 1       the criminal trials are properly conducted and that
 2       people have confidence in our criminal justice system.
 3       I have a concern that must be addressed.  The position
 4       of the officers is now so notorious -- I do not mean
 5       that in a pejorative sense, but the views that have been
 6       made on them are well known -- that if any of them were
 7       called as a witness, the trial concerned might well
 8       become a trial of the officer, rather than of the
 9       accused.  I want to avoid that."
10           And:
11           "THE CONVENER:  The Crown's position is that there
12       are ongoing discussions in relation to the officers, and
13       you are concerned that they would be at the centre of
14       any trial that you would conduct.  Should we conclude
15       that, for that reason, the Crown will not call them as
16       expert witnesses if they remain in the service?
17           "THE LORD ADVOCATE:  I would need to be strongly
18       convinced that the issues could be dealt with
19       appropriately at the trial.  At the moment, I cannot say
20       that it would be appropriate for the officers to be
21       called.
22           "THE CONVENER:  Is that the only reason?  I will
23       clarify why I am asking the question.  It is of concern
24       to me because we heard evidence from Mr Taylor, HM Chief
25       Inspector of Constabulary, that in his view there were
page 139
 1       serious management failures and serious failures in the
 2       process.  There were many matters with which he was
 3       dissatisfied.  It seems to me to be disproportionate and
 4       unfair for six people to be perceived to be taking all
 5       the blame for the trouble in the Scottish Criminal
 6       Record Office.
 7           "THE LORD ADVOCATE:  On a human level, one can have
 8       every sympathy with the position in which the officers
 9       find themselves.  Some will say that it was of their own
10       making.  Nevertheless, on a human level, it is a matter
11       of regret.  I have a wider responsibility to ensure that
12       trials in this country focus on the real issue, which is
13       the guilt or innocence of the accused -- not whether or
14       not a SCRO officer has, in the past, acted in a way that
15       was malicious of course criminal, or something of that
16       nature.  That is my real concern."
17           The preceding paragraphs relate to the suspended
18       four officers: Macpherson, Stewart, McBride and McKenna.
19       Lord Boyd of Duncansby has no recollection of any
20       particular discussions regarding Mackenzie and Dunbar.
21       The material available to the Inquiry relating to these
22       two is confined to the documents in March 2006 to which
23       reference has been made.
24           Sheriff Gilchrist as DCA, dealt with the question of
25       the use of all six officers as witnesses.  He says that
page 140
 1       it would not have been sensible to peril a prosecution
 2       on them while there was a question mark over their
 3       honesty and competence.
 4           That, sir, might be a point --
 5   THE CHAIRMAN:  You are very near the end but perhaps we will
 6       finish and commence at 3.00 then.
 7       (2.50 pm)
 8                         (A short break)
 9       (3.00 pm)
10   MR MOYNIHAN:  Turning now to the requirement for second
11       opinion in SCRO cases and that being brought to an end,
12       Sheriff Crowe says that at some point in 2001 he
13       persuaded the Lord Advocate that it was no longer
14       necessary to verify SCRO fingerprint evidence.  No other
15       mis-identifications had been found.  Indeed, in one case
16       the external expert had disputed an identification which
17       was subsequently confirmed by DNA evidence and the
18       accused's admission that he had been at the locus.
19           The Director's narrative appended to the Black
20       report records that the verification requirement was in
21       place for 13 months from July 2000.
22           In tandem SCRO management had instructed a
23       verification of serious cases involving each of the four
24       suspended officers in the year before and after the
25       McKie case and the results were found to be 100 per cent
page 141
 1       accurate.  There is a reference to the Director's
 2       narrative appended to the Black report.
 3           The Black report itself.  After the decision of the
 4       Lord Advocate not to prosecute the four SCRO officers
 5       Strathclyde Joint Police Board, as employers, agreed a
 6       special disciplinary investigative procedure in relation
 7       to not only those four but also Mackenzie and Dunbar.
 8       That procedure led to an investigation by James Black
 9       into the question of whether any disciplinary action
10       should be taken against the six officers.  The Black
11       report was produced on 28th February 2000 and is
12       available on the web.
13           The Black report recommended reinstatement for the
14       four suspended officers and a return to full operational
15       duties for the other two.  It also recommended that no
16       action be taken against Mr Bruce or Mr Geddes who had
17       also worked on QI2.
18           Mr Macpherson refers to returning after suspension
19       in May 2002 until being made redundant in 2007.  He was
20       put on a return to work matrix that he thought would
21       progress him towards re-inclusion on the Crown Office
22       list and achieved 100 per cent in his tests.  In 2004 he
23       and Mr Stewart were involved in setting up the Quality
24       Assurance Unit.
25           Mr Stewart says that when he returned to work in
page 142
 1       April/May 2002 the original intention was that he would
 2       be returned to full duties but that never happened.  He
 3       says that he and Mr Macpherson became part of the
 4       Quality Assurance Team and in that capacity he was
 5       involved in ISO accreditation and devising new processes
 6       and forms.  He left SCRO on 31st March 2007 having been
 7       given the option of leaving on an agreed package or
 8       being sacked.
 9           Ms McBride similarly did not return to full duties.
10           Anthony McKenna did not return to full duties and
11       left SCRO by agreement on 31st March 2007.  Following,
12       his return to work he was not allowed to check suspects,
13       only to carry out AFR (that's the database checking)
14       assessments and eliminations.  He says that the fact
15       that he was to be made redundant was announced at the
16       time the Lord Advocate was due to give evidence to the
17       Justice 1 Committee and that he does not know why he was
18       made redundant.  It was put to him as an offer he could
19       not refuse and he transferred to Strathclyde Police
20       Policy and Development Board.
21           Mr Mackenzie retired on 31st March 2007 and
22       Mr Dunbar retired on 30th March 2007.
23           Sir William Rae says that the reason why Macpherson,
24       Stewart, McBride and McKenna were not returned to duties
25       was because the Lord Advocate had issued a directive
page 143
 1       that they were not to be used as witnesses in criminal
 2       cases.
 3           Mr Bell says that there was an agreed strategy
 4       document relating to the return to work of the suspended
 5       officers.  Retraining was built into that strategy.
 6       Mackenzie and Dunbar were not returned to operational
 7       duties.  This was, he says, because the officers, the
 8       Crown and UNISON all understood that if they had been
 9       involved as experts they could be open to challenge, and
10       that could compromise a case.
11           Now to deal with authorisation as experts for the
12       purposes of section 280 of the Criminal Procedure
13       (Scotland) Act 1995.  Reference has already been made to
14       decisions taken relative to the six fingerprint officers
15       most publicly associated with Y7 (that's Macpherson,
16       Stewart, McBride, McKenna, Mackenzie and Dunbar).  In
17       correspondence Mr McKie also questioned whether other
18       officers involved in the identification of Y7 (Foley,
19       Bruce and Geddes) should be disqualified from giving
20       evidence: see, for example, his letter of
21       1st September 2008 to the current Lord Advocate.  The
22       response from Mr Dunn (the Deputy Crown Agent) is dated
23       17th October 2008.  He advised that these three officers
24       remain authorised under section 280 of the 1995 Act,
25       that they have given reports and that two of them have
page 144
 1       been led in evidence.  In this letter the DCA says that
 2       authorisation of "forensic science experts" under
 3       section 280 of the Criminal Procedure (Scotland) Act is
 4       a matter for the Scottish Government and that the Crown
 5       Office and Procurator Fiscal Service play no part in
 6       that.  He then adds:
 7           "However, the ability to provide routine evidence
 8       covered by this authorisation is not necessarily the
 9       same as expert evidence.  Therefore, authorised forensic
10       scientists in terms of section 280 are not necessarily
11       expert witnesses.
12           "In every case where an expert witness gives
13       evidence in court, his or her qualifications and
14       expertise, whether formal or by experience, must first
15       be established by oral evidence to the satisfaction of
16       the court.  No register of such expert witnesses is
17       maintained."
18           Sheriff Gilchrist does not recall discussions within
19       Crown Office relating to any officers other than the
20       principal six.  However, he would have seen them as
21       being different because there were no complaints of
22       dishonesty against them.
23           Responsibility for authorisation for these purposes
24       fell on the Scottish Ministers.
25           Sir William Rae discloses that though, as Chief
page 145
 1       Constable, he had a role in presenting applications for
 2       authorisation, his role was formal.
 3           Mr Bell states that he had discussions with
 4       Mr Gilchrist and that it was "clear" that when they were
 5       reinstated they were "not to be involved in any
 6       identifications" and "would not be put forward for the
 7       list for court".
 8           Sheriff Crowe is critical of the authorisation
 9       process.
10           Crown Office was not consulted in relation to the
11       authorisation of fingerprint officers.  He implies a
12       lack of independent review in the authorisation process.
13           Sheriff Gilchrist does not recall any discussions
14       within the Crown of the SCRO officers' authorisation but
15       observes that such a discussion would have been academic
16       because they were not going to be used as witnesses.
17           Doubts as to the efficacy of the statutory
18       authorisation procedure as an independent scrutiny of
19       the competency of fingerprint witnesses were also
20       expressed in the HMICS report.  Its recommendations
21       included reconsideration of the authorisation process
22       (that's recommendation 6) and review with a view to
23       competency based qualifications (recommendation 21).
24       This was linked to the recently established National
25       Council for registration of forensic practitioners.
page 146
 1       However, that council has been wound up in advance of an
 2       English review of the accreditation of forensic
 3       practitioners.  That is a reference to Hansard's written
 4       answer on 2nd April 2009.
 5           On 13th January 2003, Scottish Ministers changed the
 6       basis of authorisation from a time-based criterion to a
 7       competency-based criterion.
 8           The forensic science regulator, Mr Andrew Renison,
 9       has provided a report to the Inquiry dated
10       30th April 2009.  He details the quality assurance
11       standards relevant to forensic science generally and
12       provides the historical background to the National
13       Council for registration of forensic practitioners.
14       This includes reference to the review of accreditation
15       arrangements that he published in January 2009.
16       However, his report to the Inquiry goes wider and raises
17       the issue of validation protocols for forensic science
18       methods both generally and also specifically in relation
19       to fingerprint evidence.  Though his primary focus is on
20       England and Wales, his work is currently being
21       considered in Scotland.
22           That ends chapter 9.  The issues that arise from
23       chapter 9 are whether the decisions taken relative to
24       the four SCRO officers who were suspended and the two
25       who were redeployed proceeded on a proper appraisal of
page 147
 1       the fingerprint evidence and, secondly, whether there
 2       were effective procedures in place to assess the
 3       accreditation of fingerprint officers and to review
 4       their accreditation in the event of a doubt about any of
 5       their opinions.  Again, as before, those witnesses are
 6       listed being those witnesses whose names are mentioned
 7       in the narrative.
 8           That, sir, concludes my opening statement.
 9   THE CHAIRMAN:  Thank you very much.
10           Well, this now brings us to the point where I would
11       normally hear any opening statements that any of the
12       parties wish to make but I can appreciate that there is
13       a fair bit to assimilate in what has passed in the last
14       two days and you may want time or may prefer to begin
15       today.  I am quite content either start tomorrow again
16       or to let you make a beginning this afternoon.
17           Can I ask Mr Smith first, do you wish to make a
18       statement and, if so, when would you prefer to do that?
19   MR SMITH:  Thank you, sir.  Yes, I would like to make an
20       opening statement but perhaps I can say this: that there
21       is one matter that I would like to raise at this stage
22       as part of the opening statement.  I think it will
23       become clear as to why now rather than tomorrow.
24           What I would propose to do is make a statement on
25       that matter and then, if possible, to adjourn until
page 148
 1       tomorrow in order to complete it.
 2   THE CHAIRMAN:  Would you like to do so much as you wish to
 3       do today?
 4                   Opening address by MR SMITH
 5   MR SMITH:  I am obliged.  I should say none of this will
 6       take particularly long and even in its entirety I would
 7       imagine my opening statement will be less than
 8       half-an-hour, for reasons that will become clear.
 9           As no doubt everyone is aware, I represent not just
10       the interests of Shirley McKie but I am instructed to
11       appear for Iain McKie and David Asbury but what I have
12       to say is principally in respect of the interests of
13       Ms McKie.  I have been asked to make a statement at this
14       time with the leave of the Inquiry.  It relates to one
15       matter, but was also wish, as I say, to make a further
16       opening statement tomorrow and neither of these
17       statements will take a great deal of time for the
18       Inquiry.
19           What I wish to say relates to certain matters raised
20       in the opening statement of counsel for the Inquiry
21       yesterday that have been widely reported in the national
22       press and other media.  They have caused great distress
23       not only to Ms McKie but her entire family.
24           It is thought proper that, in the interests of
25       fairness, she is given the opportunity through me to
page 149
 1       make the position clear to the Inquiry and to the press.
 2       It is hoped that the press will, in the interests of
 3       fairness and balance, provide equivalent coverage to her
 4       position.
 5           Counsel to the Inquiry made reference yesterday to
 6       certain "rumours", as described by him, circulated by
 7       Les Brown.  Mr Brown is a former police officer with
 8       Strathclyde Police and styles himself as an
 9       investigative journalist.  He acts on behalf of certain
10       SCRO employees whose conduct has already been the
11       subject of criticism and is to be considered fully by
12       this Inquiry.
13           It is alleged by Mr Brown that Ms McKie was not only
14       present within Miss Ross' house, but was there in the
15       words of Counsel to the Inquiry for, "romantic liaison".
16           The allegations are summarised by Counsel to the
17       Inquiry at page 94 of the first day's transcript.
18           The media have picked up on these matters, and it
19       has become the main story that has been published in a
20       number of newspapers and repeated in other media.
21           Mr Brown has made such allegations before.  As on
22       this occasion, he has publicised these allegations under
23       the cloak of privilege.  He has also refused to divulge
24       the principal source of some allegations and real doubts
25       must be cast on whether what he says is either true or
page 150
 1       accurate.  He maintains that some individuals, in
 2       particular the journalist, Marion Scott and Police
 3       Officer Kerr Reid, have now changed their positions to
 4       him.
 5           Mr Brown has apparently refrained from making such
 6       allegations other than when protected by privilege, and
 7       has been told by solicitors acting for Ms McKie that if
 8       he made those allegations other than in privileged
 9       circumstances, it would be likely that proceedings would
10       be taken against him.
11           It is a matter of importance to note that although
12       it is maintained by him and repeated by Counsel to the
13       Inquiry that it was "well known in media circles" that
14       Ms McKie had a romantic liaison of some kind at the
15       locus, no newspaper has ever published those
16       allegations.  No doubt they refrained from doing so on
17       account of the recognition that the allegations were
18       scandalous and would probably result in litigation.
19       They no doubt also realised that no evidence existed
20       which could substantiate those allegations.
21           The allegation is denied.  The suggestion that she
22       was in the house for any purpose is denied.  It is
23       denied that she had any romantic liaison with any
24       officer on the inquiry team.
25           The allegations are of the most outrageous and
page 151
 1       hurtful nature.  They make serious allegations not only
 2       against Ms McKie, but other police officers such as
 3       Officers Lees and Kerr.  Reference is also made by Mr
 4       Brown to an officer named "Reece".  He is said by Mr
 5       Brown to have been a boyfriend of Ms McKie.  Ms McKie
 6       has never heard of him.  Mr Brown apparently "excluded"
 7       Mr Reece from his enquiries without interviewing him.
 8       We have no idea of who he is or whether he exists.
 9           Mr Brown also refers in his statement to hearing
10       that a golf professional had stated to a third party
11       that he knew someone who knew something about the
12       matter.  Needless to say, despite Mr Brown following
13       this up, he was not able to substantiate what was said.
14       All the investigations by Mr Brown seem to be based upon
15       second- or third-hand hearsay; witnesses who either
16       change their position or deny what Mr Brown says; or
17       so-called sources that Mr Brown refuses to reveal.  Such
18       is the quality of the information that Mr Brown is
19       prepared to act upon.  And, regrettably, such is the
20       quality of information that has formed the basis of this
21       matter being brought before the Inquiry and into the
22       public domain.
23           As soon as this allegation was again made by
24       Mr Brown in the context of this Inquiry, a complaint was
25       made to the Inquiry team that not only was this
page 152
 1       allegation scurrilous, and without any evidence to
 2       support it, but it did not fall within the issues of
 3       that you, sir, outlined as being the issues for
 4       determination during for the Inquiry.  It was made
 5       clear, however, by the Inquiry team that the matter
 6       would be ventilated.
 7           It remains our position that these allegations are
 8       at best peripheral and at worst totally irrelevant to
 9       the matters to be considered.  During the course of the
10       Inquiry Iain McKie submitted that dealing with Mr Brown
11       and his allegations and we are concerned that this was
12       not referred to yesterday.  It is a matter of concern
13       that, what is referred to as "rumour" by Counsel to the
14       Inquiry is the subject of public airing, especially when
15       it is so hurtful to Ms McKie.
16           In his opening address, Counsel to the Inquiry
17       indicated (at page 93, line 18) that some individuals
18       named by Mr Brown as being a source of information have
19       not been interviewed as they were "deemed not to merit
20       further to the investigation."
21           Regrettably this matter is, for better or worse, now
22       in the public domain.  Counsel for the Inquiry having
23       decided to raise this, it is the position of Ms McKie
24       and her family that the matter should now be fully
25       explored in public and all persons referred to by
page 153
 1       Mr Brown should be required to give evidence.  Of
 2       course, Mr Brown should now be called to give evidence,
 3       on oath, in order that he be compelled to justify his
 4       conduct or withdraw it.  The journalist, Marion Scott,
 5       who he alleges was the source of the information should
 6       be called.  It seems Mr Brown is now aware that it is
 7       suggested by her that in fact he, and not she, was the
 8       original source of the information.
 9           The golf professional, Gordon McKinlay, and former
10       Detective Superintendent McAllister, and his son, a
11       serving police officer and deputy senior investigation
12       officer in the Marion Ross murder inquiry, should also
13       be called.  All of these individuals are persons that
14       Mr Brown claims imparted information to him on this
15       issue.  They should be called to either deny that they
16       said what Mr Brown suggests or explain the evidence upon
17       which they made those statements.  What cannot happen is
18       that the allegations are not fully investigated.  If a
19       ruling is made on this matter, without all so-called
20       witnesses being called, the rumours will not go away.
21           Ms McKie is, of course, as entitled as anyone else
22       to a fair hearing and that includes the right to deny
23       allegations made against her and to do so on an equal
24       basis as would any other person.  It is presumed that
25       this matter having been raised, it is to be ruled upon
page 154
 1       in the Inquiry as a matter of fact.  It is therefore
 2       imperative, having regard to the serious and scurrilous
 3       nature of the allegations, that it is fully
 4       investigated.  Ms McKie has nothing to fear from such an
 5       investigation.
 6           It is a matter of note that the quality of the
 7       so-called evidence gathered by Mr Brown is of a kind
 8       that is verging on the ridiculous.  To call the
 9       allegations "rumours" gives them an unduly elevated
10       status.  Kerr Reid, the police officer referred to by
11       Mr Brown as a source of hearsay information, has in fact
12       denied that he told Mr Brown what is alleged by
13       Mr Brown.  Mr Lees, who is alleged to have allowed
14       Ms McKie into the locus, also denies that he did so.  It
15       would seem that Mr Brown is prepared to rely upon second
16       or third-hand hearsay, often without finding out even
17       the putative source of the information.
18           Ever since on 11th February 1997 when Ms McKie first
19       denied that she had been in the locus, she has been
20       subjected to a campaign by certain colleagues and
21       superiors to persuade her, to bully her and to
22       intimidate her into admitting that she had been at that
23       place.  It appears that despite her acquittal, certain
24       individuals remain unwilling or unable to accept that
25       she was not there.  They now resort to making those
page 155
 1       allegations that I have referred to, which at least
 2       shows a degree of consistency.  However, no person seems
 3       willing to stand up in public, under oath, and state
 4       that they are true.
 5           The question of her presence in the locus was not
 6       only fully investigated at the course of her trial, but
 7       was further investigated by Strathclyde Police following
 8       Mr Brown's involvement.  Needless to say, despite
 9       vigorous investigation and presentation of evidence
10       prior to and subsequent to Mr Brown's investigation, not
11       a single shred of evidence was found to support what was
12       said.  It was hoped that, after this full investigation
13       and its irrelevance to the Inquiry's purpose, it would
14       be ignored by the Inquiry and taken to be typical of the
15       attitude displayed by many officers within Strathclyde
16       Police, which was to presume that Ms McKie had lied, and
17       to malign her in a cowardly way.
18           In his paper to the Inquiry on Mr Brown's statement
19       Mr McKie requested that certain additional witnesses be
20       interviewed in this connection and we hope the Inquiry
21       will take account of that request in ensuring that this
22       whole matter is now thoroughly ventilated.
23           At this stage, we are not of course asking for a
24       ruling because it may be Counsel for the Inquiry will
25       take on board what we say.  I am obliged, sir, for the
page 156
 1       indulgence at this time.
 2   THE CHAIRMAN:  Thank you.  As far as I am concerned, I can
 3       attach no weight to rumour.  But I think sometimes these
 4       inquiries and inquiries such as this do serve a purpose
 5       in that where there is rumour that is spread around, it
 6       allows it to be an opportunity for it to be
 7       substantiated or dispelled for good and all.  I think
 8       that sometimes to the person who is the victim of
 9       rumour, it is a good thing that they get an opportunity
10       for it to be made known publicly that there is nothing
11       in the rumour.
12           But at this moment, as far as I am concerned, as
13       counsel said, it is rumour and therefore I could attach
14       no weight to it unless it is substantiated by evidence
15       and I am sure the press will pay attention to the
16       comments that you made.
17   MR SMITH:  Thank you, sir.
18   THE CHAIRMAN:  I am quite content to take Mr Holmes or
19       Mr Forrester Smith -- I do not know which of you wish to
20       make any submission -- but I am quite content to hear
21       you tomorrow morning or now, whichever you prefer.
22   MR HOLMES:  Thank you, sir.  I do have a brief opening
23       statement to make but I would prefer to do so tomorrow
24       morning.
25   THE CHAIRMAN:  Tomorrow morning, yes.  Is there anyone who
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 1       would prefer to do it today who wishes to make an
 2       opening statement?  Just to give us an idea of how much
 3       time we are likely to take, Miss Grahame, are you
 4       planning to say anything or Mr Stuart, either of you?
 5   MISS GRAHAME:  It will ultimately be myself.  I have made a
 6       recommendation to Crown Office in relation to the matter
 7       as I have not received a final instruction and I simply
 8       ask at this stage if I may reserve my position until
 9       tomorrow morning.
10   THE CHAIRMAN:  Certainly.
11   MISS GRAHAME:  I am obliged.
12   THE CHAIRMAN:  I should have asked, Mr Macpherson, whether
13       you wish to say either today or tomorrow.
14   MR MACPHERSON:  Thank you, sir.  I am not anticipating make
15       a statement today or tomorrow.
16   THE CHAIRMAN:  Good.  Well, when I say "good" I mean thank
17       you for telling me.
18           I think that covers everyone and anyone who is not
19       legally represented who is a core participant, I think,
20       under the rules is entitled to make a statement.  This
21       may be quite a good thing because I gather this building
22       will be a polling station tomorrow and there is also
23       some other event on; so perhaps it is better that we are
24       not here too long.
25           It would be an opportunity if anyone has any
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 1       submissions that they want to make to me on points about
 2       the Inquiry tomorrow would be helpful to me because what
 3       I want to do is on Tuesday is I hope to have cleared the
 4       decks so we can start into Mr Heath's evidence, who I
 5       understand is the first witness.
 6           Thank you all very much.
 7       (3.25 pm)
 8        (Adjourned until 10.15 am the following morning)
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