page   1
 1                                        Thursday, 4th June 2009
 2       (10.15 am)
 3   THE CHAIRMAN:  Mr Smith, if you would like to continue your
 4       opening.
 5             Opening address by MR SMITH (continued)
 6   MR SMITH:  Good morning, sir.  If I may continue, what I
 7       would like to say is this.  Shirley McKie has always
 8       maintained that she was not in the house of Marion Ross.
 9       She has steadfastly adhered to that denial in the face
10       of pressure that most people can only imagine.
11           It is to be hoped that the public in general will be
12       given the opportunity to know the facts once and for
13       all.  It is therefore imperative that all evidence that
14       is relevant to the issues is made available.  It is also
15       imperative that it is tested, to exclude the possibility
16       of any claim that this Inquiry has failed to consider a
17       material part of the evidence and loses its authority as
18       the last word on the fact finding exercise.
19           It is a recurrent theme of the vigorous
20       correspondence on the Internet throughout the world that
21       in any prior inquiry or investigation, such an
22       investigation has been flawed as it lacked the
23       experience or expertise or failed to take into account a
24       material fact.  The conclusions have not been accepted
25       by many.  This includes the Black Inquiry, Mackay and
page   2
 1       Robertson Inquiry, the Parliamentary Inquiry and the
 2       trial of Shirley McKie herself.
 3           This Inquiry is an opportunity for many individuals
 4       to clear their name if they wish to try to do so.  If
 5       matters are fully explored and findings are made, it
 6       will be the first step at least in the attempt to move
 7       on and restore faith in forensic science in Scotland.
 8           Against that background, it is our submission that
 9       it will be essential that a ruling is made on whether
10       QI2 or Y7 have the authorship that was claimed by SCRO.
11       SCRO should be given every opportunity to seek to
12       justify their position, but also be subjected to
13       questioning by all parties represented if they so wish.
14       Plainly if the identifications were correct, this will
15       have cataclysmic consequences: it will mean that experts
16       throughout the world who had positively stated that the
17       identification was wrong were themselves wrong.  It will
18       mean that the Scottish Executive was wrong in the advice
19       they have previously received.  Although in a tiny
20       minority it will mean that SCRO and those who Mr Russell
21       indicated he wished to represent were like Shirley McKie
22       admirable in their tenacity in sticking to their
23       position in the face of immense pressure that we can
24       only imagine.  Of course there is another possibility:
25       that SCRO failing to live up to what is expected of any
page   3
 1       expert witness.  That includes the ability to recognise
 2       that mistakes can be made.
 3           We are obliged to the Inquiry team for their efforts
 4       so far in gathering the evidence.  Important evidence is
 5       being made available to all participants on a rolling
 6       basis.  Important evidence has been produced as recently
 7       as last week.  We wish to make it clear that the task of
 8       considering this information and comparing it to already
 9       known evidence is proving to be a time consuming task.
10       It cannot be assumed that issues will not arise that we
11       consider to be of importance as more evidence is
12       produced and as the significance of evidence already
13       availability is analysed.
14           It is not intended to take a great deal of time in
15       making this opening statement.  The reasons for this
16       include the fact that considerable quantities of
17       evidence are still awaited.  By way of example, as far
18       as we are aware Mr Wertheim has not yet provided a
19       statement and neither has Mr Zeelenberg.  I raise the
20       latter matter at this point as much reference was made
21       yesterday to the events at Tulliallan.  Serious
22       allegations were made about Mr Zeelenberg's manner
23       suggesting it was of a threatening nature.  No doubt he
24       can speak for himself but we note that as a matter of
25       fairness his comment should be sought on this as a
page   4
 1       matter of urgency.  It will come as no surprise that it
 2       is our understanding from interviewing him for the
 3       purposes of the civil claim that his version of what
 4       happened at Tulliallan is very different to that stated
 5       here yesterday.
 6           That having been said, there are certain issues that
 7       have already been raised in particular by Mr McKie in
 8       written statements to the Inquiry.  We wish the Inquiry
 9       to know that Mr McKie has still not been interviewed and
10       remains in the possession of considerable documentary
11       and other evidence as we have previously indicated to
12       the Inquiry team.  It may assist to know in broad
13       outline what we see as being the important issues to be
14       considered at this stage.
15           If I can move on now to one particular matter which
16       is the issue of Mr Gary Gray, until revealed in the
17       context of this Inquiry referred to on page 64 yesterday
18       it was unknown by those I represent that there was a
19       suggestion that Gary Gray had perhaps deposited a
20       fingerprint at about the point that Y7 was found.
21           It is clear that Mr Moffat who was assisting in
22       moving Marion Ross' body thought that Y7 could in fact
23       be that of Gary Gray.  It was understood from other
24       statements that Gary Gray's fingerprints were compared
25       against Y7 by Charles Stewart.  Mr Moffat was told by
page   5
 1       Mr Hogg that that was so.
 2           Gary Gray states that he did not provide elimination
 3       prints.  Charles Stewart says he did not ever compare
 4       Gary Gray's prints against Y7.  Mr Moffat says he felt
 5       threatened when he raised the issue.
 6           In these circumstances there is a apparently a
 7       disagreement between Mr Gray, Mr Moffat, Mr Hogg and
 8       Mr Stewart as to the evidence.  It is in our submission
 9       imperative that all these matters are investigated
10       afresh.  The issues arising are not limited to whether
11       Y7 was deposited by Gary Gray.  They include such
12       matters as why Mr Hogg stated that the print had been
13       checked by Mr Stewart.  It is vital that fresh prints
14       are taken from Gary Gray; that he be called to give
15       evidence; and that his prints be compared with Y7.
16           Although it has been stated that fingerprints
17       bearing to be those of Gary Gray were compared in the
18       context of the Mackay and Robertson investigation
19       against Y7 with a negative result, this is of such
20       importance that it should be considered afresh by this
21       Inquiry.  It will be a simple matter to check it once
22       again.
23           It has been stated that Ms McKie left fingerprints
24       on a production in a matter predating the murder of
25       Marion Ross.  It is important to realise that she stated
page   6
 1       at the time that she thought that she had been wearing
 2       gloves when handling production, but did not make an
 3       issue of the suggestion that she should be more careful.
 4       However, it was discovered that it was possible to leave
 5       prints through latex gloves and the standard procedure
 6       was to use double gloves in certain circumstances.  It
 7       is a matter of interest that Mr Moffat speaks to knowing
 8       of the risk of leaving fingerprints through latex gloves
 9       and was careful at the locus of the crime not to do, so
10       it is important, therefore, that the Inquiry places this
11       in context.  Much has been made of this in Internet
12       traffic and the full facts should be made clear to and
13       before the Inquiry.
14           Thus far it has been left hanging in the air, that
15       somehow Shirley McKie has previous form for
16       contaminating a crime scene.  This myth must be explored
17       in order that the facts become known to the public.
18           The interests of David Asbury and Shirley McKie
19       require that close attention is paid to the issue of the
20       relationship between SCRO and Strathclyde Police.  If an
21       organisation such as SCRO wishes to be regarded as
22       independent it has to deal at arm's length from those
23       who instruct it.  It is apparent that that relationship
24       was not that of an independent organisation.  There was
25       regular communication with SCRO by Strathclyde Police
page   7
 1       officers advising of the progress of the investigation
 2       at large; of SCRO officers going to the locus; of advice
 3       on the importance of marks left to be analysed.  There
 4       is also evidence of communication taking place on first
 5       name terms between the organisations.  The overwhelming
 6       suspicion is that SCRO had a purpose in mind, which was
 7       to support the police in securing a conviction.  If such
 8       a culture existed, SCRO should not have been portrayed
 9       as being in any sense independent.  All communications
10       should have been documented, all informal discussions
11       should have been prohibited.
12           It is also important to consider the practice of the
13       evidence trail of SCRO to ensure that any such agency
14       has an audit trail that can be followed and thereafter
15       be tested by any defence team at each and every stage.
16           It is vital that what happened in the Marion Ross
17       Inquiry and in the subsequent prosecution of Shirley
18       McKie is analysed to see if any objectively acceptable
19       standards were adhered to.  It is vital to see whether
20       any doubts by any individual were disclosed to the
21       defence in the Asbury and McKie trials.  That disclosure
22       should have been ultimately from the Crown, but systems
23       ought to have been in place to ensure that concerns were
24       communicated by SCRO to the Crown and by police to the
25       Crown.  Questions must be asked as to why the
page   8
 1       presentation by SCRO to the jury in Ms McKie's trial
 2       failed to reveal the protracted consideration of the
 3       identity of the mark Y7.  Questions must be answered as
 4       to why no such disclosure took place.
 5           It has come to the attention of us, as
 6       representatives of David Asbury, that significant
 7       information was not communicated to those defending him.
 8       It is now known that there were witnesses who observed a
 9       man, not answering the description of Mr Asbury, close
10       to the locus and who may have been there at the time of
11       the murder.  It is known that a number of other suspects
12       were interviewed, including one man who has now been
13       convicted of murder in similar circumstances to the
14       murder of Marion Ross.  None of that was disclosed to
15       Asbury's defence team as it should have been.
16           It is also clear that there was no disclosure to
17       those defending Shirley McKie of all the evidence that
18       was available and may have assisted her defence team.
19       In particular, it is clear that some individuals within
20       SCRO were not able to identify 16 points on Y7 when
21       compared to her prints.  If, as they have said, a
22       16-point standard should be used, the fact that there
23       were individuals who expressed doubt about 16 points
24       should have been disclosed.  That it was not, requires
25       an explanation.
page   9
 1           A system of identification should not be
 2       identification by committee, by adopting only the
 3       opinions that suit the purpose.  A truly independent
 4       system should be judged by its weakest link and not its
 5       strongest.  The weakest link should certainly not be
 6       concealed.
 7           It is now clear from statements obtained that the
 8       SCRO colluded with one another to decide which parts of
 9       the mark Y7 and of Shirley McKie's print should be part
10       of the presentation.  It is wholly unacceptable for any
11       such collusion to take place.  It is wholly unacceptable
12       for a selected part of evidence to be presented.  There
13       was no reason why the entire mark and print were not
14       produced.  An explanation is called for for such
15       behaviour.
16           A system of disclosure as required in Scotland that
17       is ignored is a system that is not worth having.
18           The decision to prosecute Shirley McKie having been
19       taken, she was then subjected to the most appalling
20       treatment by her former colleagues.  It is quite clear
21       that her failure to follow the line expected of her
22       resulted in her being ostracised and subjected to
23       punishment.  She was arrested in the early hours of the
24       morning, stripped searched and marched into her on
25       police station in a state of considerable distress, all
page  10
 1       under the orders of the Detective Superintendent John
 2       Malcolm, her senior officer.  He was the immediate
 3       superior to the Senior Investigating Officer Steven
 4       Heath.  The manner of Ms McKie's arrest was a matter
 5       which was subject to adverse comment and criticism by
 6       Lord Johnson, the trial judge.  Although it is clear
 7       that the justification provided for this conduct that
 8       was suggested was that she was being treated as any
 9       other prisoner, it is vital that Mr Malcolm be called
10       to account for his orders.  If it is truly his position
11       that every police officer that has been charged with
12       perjury is subjected to strip searching, he should be
13       required to say so on oath.  It should be open to the
14       Inquiry to hear evidence as to whether that is true.
15           There is an overwhelming suspicion that Mr Malcolm's
16       conduct was motivated by an attempt to humiliate Shirley
17       McKie.  If that is so it is not without significance
18       that Mr Malcolm was Mr Heath's superior in the murder
19       investigation.  Questions arise as to why he, having
20       been involved in the investigation, was in charge of the
21       arrest too.  He plainly had a view of Ms McKie's conduct
22       and if this affected his method of arrest it requires to
23       be considered carefully.  It may also instruct a view of
24       the attitude throughout the investigation by all police
25       officers.
page  11
 1           It is submitted that there is considerable evidence
 2       that many within Strathclyde Police, as with SCRO are
 3       incapable of objective view.  There would appear to have
 4       been a culture that presumed that Shirley McKie was
 5       guilty, notwithstanding her acquittal.  Media briefings
 6       were provided (including one at which the journalist
 7       Marcello Mega was present) which were designed on an
 8       unattributed basis to destroy Ms McKie after her
 9       acquittal.  One such briefing made the suggestion that
10       she had been at the locus and engaged in what was
11       described in this is Inquiry as a romantic liaison.
12       False statements were made to the press to the fact that
13       Pat Wertheim was not suitably qualified to provide an
14       opinion on fingerprint analysis.  The practice of
15       informal and unattributed communication with the media
16       in this way must be considered by the Inquiry.  It is
17       submitted that it is wholly unacceptable following a
18       decision of a jury for the police or any other
19       prosecuting agency to complain at the result.
20           This attitude continued in respect of David Asbury.
21       Recently, Strathclyde Police replied to a potential
22       employer of David Asbury in a disclosure application
23       that he may be a danger to vulnerable people.  Such a
24       statement is utterly baseless standing the acquittal of
25       David Asbury.  Such conduct by the police shows an
page  12
 1       unwillingness to accept a verdict of a jury and is to be
 2       deprecated.
 3           This culture of inability to recognise errors is one
 4       that ought never to have happened.  It inevitably led to
 5       faith in the system of fingerprinting to be destroyed.
 6           It is clear that from the early stages no thought
 7       was given to the possibility that there had been a
 8       mis-identification of the mark Y7.  Quite why this now
 9       obvious point was not considered requires to be consider
10       by the Inquiry.  Fingerprints were considered by all to
11       be, in effect, infallible.  Fingerprint experts have
12       acquired a reputation that was not capable of challenge.
13       No other expert witness speciality has been accepted so
14       easy in Scotland.
15           This position is all the more surprising when it is
16       appreciated that no formal training system was
17       apparently adopted which was capable of verification
18       from outside SCRO.
19           In the context of Shirley McKie's prospective trial,
20       the leading of evidence from abroad was a wake up call.
21       As was commented on yesterday, whatever dispute one may
22       have about the content of the evidence of Pat Wertheim
23       and David Grieve, the Advocate Depute commented on the
24       contrast between the quality and the presentation of
25       that evidence.
page  13
 1           In reaching the decision to prosecute Ms McKie,
 2       again there was a failure to follow-up repeated requests
 3       that the mark Y7 be independently verified for the Crown
 4       by an expert from England.  It is a fair bet now that,
 5       had that been requested, the mis-identification would
 6       have been noted and life would have been very different
 7       for Shirley McKie.
 8           The conduct of Peter Swann must also be considered
 9       in this is Inquiry with the utmost care.  His support of
10       SCRO was critical to them and had a bearing on the
11       decision not to prosecute the experts.  We have prepared
12       a comprehensive analysis of Mr Swann's action for the
13       attention of the Inquiry that will be submitted shortly.
14           We will continue to assist the Inquiry in any way we
15       can.  To date we have assisted the Inquiry by submitting
16       hundreds of relevant documents, we have submitted lists
17       of documents refused under the Freedom of Information
18       Act by the Scottish Executive to allow the Inquiry to
19       have access to them, submitting papers on 47 key issues
20       that we feel are relevant to the Inquiry supported by
21       relevant witnesses, submitting 15 papers on the analysis
22       of the fingerprint evidence, submitting papers on the
23       appointment of Professor Champod and other experts to
24       the Inquiry and on the importance of the preparation of
25       standard sets of images, and submitting responses to a
page  14
 1       number of the published chapters.
 2           Our submission of 47 issue papers was aimed at
 3       drawing the Inquiry's attention to matters and on first
 4       analysis might not be thought as having direct relevance
 5       to this Inquiry.  We believe that the consequence of the
 6       mis-identification of prints Y7 and QI2 and the
 7       questions raised there should be answered.  These
 8       questions include that ACPOS and the SCRO Executive
 9       Committee do enough to resolve matters in the wake of
10       Shirley McKie's acquittal.  Was the Black Report a
11       vindication of the SCRO as they claimed?  Were criminal
12       acts committed and, if so, by whom?  What were the
13       implications of the letter sent by the SCRO experts to
14       Lord Cullen?  Why did it take 13 years to resolve
15       matters at enormous cost to the public purse?  How
16       effective are current procedures for authorising expert
17       witnesses?  Why were the SCRO experts not prosecuted?
18       Why is there no internationally recognised system for
19       identifying fingerprints?  Why did the Justice 1 Inquiry
20       fail to resolve matters?  What were the effects of
21       political pressure and interference?  Did the Lord
22       Advocate compromise his independence from the political
23       process?  How effectively has the Scottish Police
24       Services Authority responded in the aftermath of the
25       mis-identification of prints Y7 and QI2?  What lessons
page  15
 1       have been learned and how have they impacted on the
 2       training of Scottish experts?  How can the SPSA justify
 3       the treatment of Gary Dempster while at the same time
 4       continuing to support experts who they accept they made
 5       erroneous identifications?
 6           It is our intention to continue to assist the
 7       Inquiry on witness assessments, lines of Inquiry and
 8       identify who we believe to be relevant additional
 9       witnesses.
10           In addition, we have submitted 15 comprehensive
11       papers on purely fingerprint evidence which highlight to
12       the Inquiry significant issues we believe require to be
13       resolved.  These are: the use of the 16 point standard
14       for eliminating fingerprints in Marion Ross case; the
15       flawed analysis of the Aberdeen report by Peter Swann
16       and the others; the significance of the blind test; the
17       use of charting machines by SCRO experts; the current
18       status of the mark Y7; evidence of further disputes with
19       SCRO; questions of forgery and transplant; was the
20       mis-identification of Y7 an honest mistake; the practice
21       of initialling productions in the Marion Ross case;
22       analysis of Internet images of Y7; the actions of
23       Malcolm Graham; the request for further fingerprint
24       examinations; the use of so-called original material;
25       the significance of fingerprint Y7; and SPSA training
page  16
 1       regarding the mis-identification of Y7.
 2           All in all, we believe that these papers point to a
 3       mass of contradictory evidence given over the years by
 4       the SCRO experts and their supporters.  In addition, we
 5       have also submitted the following issues for
 6       consideration: to assess the reasons for the
 7       Lord Advocate, Crown Office, the Scottish Executive,
 8       SCRO management and the police in failing to take action
 9       before they were forced to do so by the 2000 broadcast
10       of the BBC Frontline Scotland programme and by Iain
11       McKie's complaints of criminality; given Sir David
12       O'Dowd's and the Justice 1 Inquiry's criticism of HMIC's
13       failure to effectively follow-up on the recommendations
14       from the 2000 Taylor report; to assess why this happened
15       and if the issues raised have now been resolved and to
16       examine why the Scottish Executive and the Lord Advocate
17       and Crown Office failed to respond effectively to the
18       issues emerging from the Shirley McKie case; to assess
19       why Malcolm Grahame was employed by the Crown Office in
20       July 2000 to prepare a report given that in 1997 he had
21       been a defence expert and stated that the print Y7 was
22       an accurate identification and who, subsequent to the
23       1999 trial, went public on his support for the SCRO
24       experts and just as publicly apologised to Iain McKie;
25       and, finally, to fully evaluate the Mackay report, the
page  17
 1       Gilchrist report and associated documentary material to
 2       assess what will tell us about the causal factors and
 3       failures identified arising as a consequence of the
 4       mis-identification of prints Y7 and QI2.
 5           Thank you, Chairman.
 6   THE CHAIRMAN:  Thank you very much.
 7           Mr Holmes, you are next.
 8                   Opening address by MR HOLMES
 9   MR HOLMES:  Thank you, sir.  The identification of the
10       fingerprints attributed to Shirley McKie and David
11       Asbury and Marion Ross took place over 12 years ago.
12       Those identifications took place as a matter of routine
13       in an office which has dealt with many thousands of
14       similar identifications before and since.  The
15       consequences of those identifications, however, have
16       been felt much more widely than would usually be the
17       case.
18           They have been felt by those identified certainly
19       and by the family of Marion Ross who was a victim of a
20       particularly violent murder.  They have been felt also
21       by police officers, scene of crime officers and
22       fingerprint experts involved in the investigation of the
23       case, by independent experts, by politicians, by the
24       public and certainly by the public purse.
25           Aside from internal investigations there have been
page  18
 1       police investigations by Strathclyde Police and Lothian
 2       & Borders Fingerprint Bureau, there was the police
 3       investigation leading to the prosecution of Shirley
 4       McKie for perjury, there has been a police investigation
 5       leading to the Mackay report, there has been an HMCIC
 6       investigation, the ACPOS Presidential Review Group, a
 7       Parliamentary Inquiry and the Black Report.
 8           Mr Wertheim has cryptically spoken in one of his
 9       many postings on the Internet of several other secret
10       inquiries, each of which was meant to be the final word.
11       Many thousands of hours have been spent and thousands of
12       pages of reports produced and yet controversy over these
13       fingerprints has been allowed to persist.  This
14       indicates that each investigation that has gone before
15       has failed.
16           Such failure is rooted in the absence of a reasoned
17       judicial determination as to who is the donor of each of
18       these fingerprints based on analysis of all the
19       available evidence.  My clients presented themselves for
20       interview with this Inquiry as with all previous
21       investigations into this matter.  They are prepared to
22       give evidence; they are prepared to face
23       cross-examination.  They do so without fear.
24           They stand by their identification of Shirley
25       McKie's fingerprint and those of the late Marion Ross
page  19
 1       and David Asbury in this case.  The evidence will show
 2       that every single identification made by them for a year
 3       before they identified Y7 and for a year after was
 4       independently checked and found to be 100 per cent
 5       accurate.  The level of scrutiny experienced by them
 6       already is unparallelled in the fingerprint community.
 7           Despite this, and despite the recommendation that
 8       they be restored to full operational duty, my clients
 9       with the exception of Mr Geddes and Mr Foley had their
10       employment come to an end having been the subject of
11       criticism in the media at the hands of Ms McKie and her
12       supporters.  They have been subjected to extraordinary
13       pressures and they stand by their professional opinion
14       despite what it has cost them to do so.
15           Despite the pressure, and in some cases threats,
16       they have experienced, despite the effects of the last
17       12 years on both their professional and personal lives
18       and those of their families, they continue to stand by
19       the opinions they came to on examination of the evidence
20       before them and they look forward to this Inquiry coming
21       to its own conclusions on the fingerprints after
22       examinations of all the evidence before it.
23           My clients do not accept there was any error in
24       their attribution of fingerprints Y7, QI2, QD2 and XF to
25       Ms McKie, the late Marion Ross and Mr Asbury, nor was
page  20
 1       there any deliberate misfeasance.  Was there a
 2       conspiracy involving SCRO, the police, independent
 3       experts and others who were, in the words of Shirley
 4       McKie, "out to get her"?  Did this huge machine move
 5       into action to thwart the actions of a police officer
 6       who was, according to DCI Heath, not bound for greatness
 7       anyway?  No.  The simple explanation for Y7 being
 8       attributable to Shirley McKie is that she was present in
 9       the home of Marion Ross during the investigation into
10       her murder.  She left behind a fingerprint.  She denies
11       this.
12           That she denied it initially to avoid any adverse
13       effect that such carelessness would have had on her job
14       is understandable, having previously contaminated
15       evidence by leaving her fingerprints on it, may have
16       been significant for her.  Less so is that she continues
17       to do so in the light of the serious and far reaching
18       consequences of that denial.
19           It is Shirley McKie's denial that she was present in
20       the home of Marion Ross that has caused the careers of
21       my clients an others to come to an end.  It is her
22       denial that has led to the failed investigations.  It is
23       her denial that has cast doubt on the work of SCRO.  It
24       is her denial that has affected the careers of other
25       professionals involved in this case, notably Peter
page  21
 1       Swann, the first expert she hired to show that Y7 was
 2       not hers and one of a number of experts to independently
 3       confirm that it was hers, the first of these being the
 4       expert employed by Mr Asbury in his defence, Malcolm
 5       Graham.
 6           Her denial has contributed on any view to
 7       Mr Asbury's conviction being quashed and his subsequent
 8       release without having to go to the trouble of
 9       successfully arguing an appeal.
10           My clients do not accept error in the attribution of
11       QI2 and QD2.  In the case of QD2 this has now been
12       accepted by my clients' contradictors, the Danish
13       experts.  In the case of QI2 other experts will be led
14       before this Inquiry but I invite the Inquiry to consider
15       whether in light of a 100 per cent record of accuracy on
16       thousands of identifications in the year before,
17       followed by a 100 per cent record of accuracy of
18       thousands of identifications for the year afterwards can
19       be reconciled with the two errors that are claimed in
20       one case.
21           The simple explanation for the attribution of QI2 on
22       the tin found in Mr Asbury's bedroom to the late Marion
23       Ross and QD2 on the money in that tin to Mr Asbury is
24       that the tin and the money belonged to the late Marion
25       Ross and was discovered immediately after her death in
page  22
 1       the possession of David Asbury.
 2           The tin contained around £2,000 money bundled in the
 3       way Marion Ross customarily used.  Marion Ross was at
 4       the time a bank clerk with savings known to keep large
 5       quantities of cash in her home.  David Asbury was an
 6       unemployed man with no visible source of income and no
 7       visible way to accumulate that amount of money.  A
 8       disturbance in dust the same shape and size of the base
 9       of that tin is said to have been found in Marion's Ross
10       home.
11           The simple explanation for the attribution of XF to
12       David Asbury is that he was at the home of Marion Ross
13       shortly before she was murdered and that he left it
14       there.  XF was found on the Christmas gift tag.  The
15       gift and the tag had been purchased during the Christmas
16       period in 1996.  That XF is the fingerprint of David
17       Asbury is not disputed and, as a result, Mr Asbury has
18       had to offer an explanation for his presence in Marion
19       Ross' home at that time.  Mr Asbury's explanation is
20       that his car broke down.  He was closer to a petrol
21       station than to the home of Marion Ross but chose to go
22       to her door and ask to use the telephone.
23       After Miss Ross let him into the house but before he
24       used the telephone he realised his car had not broken
25       down after all but had run out of petrol.  He decided
page  23
 1       not to make a call but asked to use the toilet.  After
 2       allowing him to do so, Marion Ross, a very private
 3       woman, jealous of her own space and nervous in the
 4       presence of strangers, invited him to tour the house he
 5       left his fingerprint on the tag of a Christmas gift
 6       before leaving.  Mr Asbury's explanation for the
 7       presence of his fingerprint in the home of Marion Ross
 8       is inherently and wholly incredible.
 9           Had the simple explanations been accepted as they
10       seemed to have been by the jury in Mr Asbury's trial the
11       consequences of the identification of these fingerprints
12       may not have been so clear for all involved, with the
13       possible exception of Mr Asbury himself.  They certainly
14       would not have been quite so enduring.
15           Not all involved in this case have lost entirely.
16       Ms McKie's denial was accepted by a jury.  She was not
17       convicted of perjury though evidence is available to
18       this Inquiry from which the conclusion can be drawn that
19       she perjured herself during those proceedings.  Counsel
20       to the Inquiry referred to this in his opening
21       statement, though he indicated he has yet to come to a
22       view on whether Ms McKie's evidence was perjured.
23           Ms McKie has profited from her denial financially.
24       She was paid £750,000 by the Scottish Executive to
25       settle her action against them without a single day's
page  24
 1       evidence led.
 2           I have already referred to Mr Asbury's release and
 3       if it is accepted that the failure of the Crown to
 4       oppose his appeal was due in whole or in part to the
 5       controversy surrounding the fingerprint evidence in his
 6       case, he too as been a beneficiary of Ms McKie's denial.
 7           This Inquiry was convened to look into the
 8       consequences of the steps taken to identify the
 9       fingerprints leading to the trial of David Asbury and
10       Shirley McKie.  For my clients, those consequences
11       include attacks on their professional integrity, a
12       lengthy investigation to which they have been subjected
13       and distress to themselves and their families.  For the
14       general public, the consequences include: the release of
15       David Asbury, an individual convicted by a jury of the
16       murder of Marion Ross; the expense of 12 years of
17       investigations; the expense of two High Court trials and
18       one appeal so far; the expense of defending, albeit
19       briefly, a civil action by Shirley McKie and one by
20       David Asbury, and the expense of settling the action
21       brought by Ms McKie.
22           The following issues therefore need to be addressed:
23       first and foremost, the issue of whether the
24       fingerprints with which this Inquiry is concerned, and
25       in particular Y7, are those of the individuals
page  25
 1       identified.
 2           If the fingerprints are accepted by this Inquiry as
 3       being those of Ms McKie, the late Miss Ross and
 4       Mr Asbury, the issue of why Mr Asbury's appeal was not
 5       opposed falls, in my clients' view, to be considered.
 6       My clients are aware that the Chairman considers the
 7       Asbury appeal to be outwith the terms of this Inquiry,
 8       but they respectfully disagree.  As the evidence
 9       unfolds, my submission will continue to be that the
10       appeal of David Asbury was unopposed as a result of the
11       controversy surrounding QI2 and Y7 and, as a result,
12       falls squarely within the consequences of the
13       identification of those fingerprints.
14           For the same reasons, if the fingerprints are
15       accepted by this Inquiry as being those of Ms McKie,
16       Miss Ross and Mr Asbury, the issue of why Ms McKie's
17       civil claim was settled without proof falls squarely
18       within the consequences of the identifications and, for
19       the same reason, my submission as the evidence unfolds
20       will continue to be that the reasons for settling the
21       civil claim should be considered by this Inquiry,
22       especially in the light of the opinion given by Lord
23       Wheatley.
24           The issue of whether Ms McKie ought to have been
25       charged with perjury in respect of the evidence she gave
page  26
 1       during her perjury trial also arises.  Counsel has
 2       indicated that a supplementary statement from Ms McKie
 3       will be published addressing her evidence during the
 4       trial.  No statement from Ms McKie is yet available and
 5       I would therefore reserve any comments on this issue
 6       until I have seen a statement from her.  I note
 7       counsel's indication in his opening statement that he
 8       has yet to come to a view on whether Ms McKie's evidence
 9       in her trial was perjured.
10           Regardless of whether the identifications can now be
11       confirmed, the issue of why those who identified the
12       fingerprints were suspended from service and why the
13       recommendations of the Black Report recommending a
14       return to full operational duties were not implemented
15       arises, especially standing Mr Bell's apparent
16       acceptance of those findings in his memo of 24th
17       May 2002.  The question must also be asked when
18       considering this issue why was there a reluctance on the
19       part of SCRO Director to restore the officers prior to
20       the conclusion of Ms McKie's civil claim?
21           In the case of Y7, it was not only my clients who
22       made the identification but a number of other witnesses
23       within SCRO at the time.  Who these individuals were and
24       the effect, if any, on their own careers must also be
25       examined.
page  27
 1           Following the identifications, my clients were the
 2       subject of an investigation which eventually led to the
 3       Mackay Report.  Their treatment at the hands of the
 4       officers conducting that investigation was, to say the
 5       least, somewhat shabby and the terms of the report
 6       itself will be subject to criticism if they are
 7       discussed in evidence.  It remains ostensibly
 8       confidential, though the fact that it was leaked upon
 9       its completion is within the public domain.  The
10       Lord Advocate has commented that the release of the
11       report was unlawful.  The conduct of the Mackay
12       investigation, who disseminated it, and what action has
13       been or will be taken against those responsible is an
14       issue which falls to be considered in assessing the
15       treatment of the officers who identified Y7.
16           That the allegations of criminal conduct which led
17       to the investigation were made by Mr McKie was referred
18       to by Counsel to the Inquiry in his opening statement
19       yesterday.  Whether such allegations persist and why,
20       despite the fact that the decision was made not to
21       prosecute any experts involved in the identification of
22       Y7 and QI2, is an issue which also needs to be
23       considered.
24           There has been a significant degree of media
25       interest in this matter over the last 12 years and that
page  28
 1       no doubt reflects the public interest.  There have been
 2       a number of articles in the weeks leading up to this
 3       Inquiry.  In the past, the coverage by the media of this
 4       matter has, from time to time, been inaccurate and
 5       misleading and I would urge the Chairman to recognise
 6       the detrimental effect that that inaccurate and
 7       misleading reporting has on the work of this Inquiry and
 8       to take action where appropriate.  The public interest
 9       is not served by having an Inquiry in which the public
10       do not believe and which has been undermined because of
11       the way in which it has been reported.
12           Mr Smith expressed the hope that fair and balanced
13       coverage would be afforded his client, Ms McKie, in his
14       remarks yesterday.  I would express the same hopes for
15       those I represent, standing in tone with the press
16       coverage so far.  The media attacks to which my clients
17       and others have been subjected over the last 12 years
18       are a consequence of the identifications they continue
19       to support and properly an issue for consideration by
20       this Inquiry when considering the treatment of SCRO
21       staff following the controversy over these
22       identifications.  The issue of whether anything can be
23       done to prevent experts now working for the SPSA
24       suffering the same treatment as a result of any future
25       disputed identification ought properly to be examined
page  29
 1       when considering the issues identified in chapter 10 of
 2       counsel's analysis.
 3           Standing Ms McKie's position, it is necessary that
 4       the Inquiry reaches a decision on one question above all
 5       others: is Y7 her fingerprint?  The only way in which a
 6       decision can be achieved is through expert evidence.
 7       The opinions of these experts are just that: opinions
 8       based on years of experience.  They satisfy themselves
 9       that there are a sufficient number of characteristics in
10       sequence and agreement to enable them to give an opinion
11       attributing ownership of the fingerprint.  Their skill
12       is one of many years.  Each of my clients underwent a
13       period of training lasting several years before being
14       certified to give evidence in court.  Each of my clients
15       had their work reviewed and checked constantly.  Peer
16       review was an integral and crucial part of their daily
17       working life.  Each of my clients was subject to annual
18       competency tests which they had to past to retain their
19       certification.  Competency tests set by Mr Mackenzie and
20       Mr Dunbar were reviewed by the NTC at Durham and by the
21       FBI.  The FBI deemed them to be too stringent and noted
22       that they would only be given to their most experienced
23       examiners.  They were said to be tests of excellence,
24       rather than competency.  Staff at SCRO find the testing
25       regime at Durham to be easier.  The consequence of that
page  30
 1       was the high regard in which the experts in the Glasgow
 2       Bureau were held by fingerprint examiners elsewhere.
 3           This stands in marked contrast to some of those who
 4       claim the identifications were incorrect.  Mr Wertheim,
 5       for example, again in one of his many Internet postings,
 6       states:
 7           "I was in no way qualified to testify to fingerprint
 8       identifications when I was first accepted in court as an
 9       expert in the late 1970s.  I attended a two-week class
10       in Henley classification which also touched on latent
11       print development and latent print identification.  Our
12       comparison exercises were all inked to inked.  After
13       that there was no OJT [by which I assume Mr Wertheim is
14       referring to on-the-job training] in my department and I
15       had to teach myself.  Within two years, I was testifying
16       to identifications.  I never had a senior examiner check
17       my work and never had a single proficiency test."
18           My clients welcome the opportunity to speak to their
19       qualifications and expertise and to explain their
20       findings in public.  They look forward to the other
21       experts who have become involved in this case at one
22       stage or another doing the same.
23           Fingerprint comparison is not an exact science.  It
24       may not be reduced to probability.  What can be done is
25       that each expert who comes to an opinion as to ownership
page  31
 1       of a mark can adequately explain why they are of that
 2       view.  My clients are satisfied that they can do so.
 3       The other experts who have seen these fingerprints must
 4       be asked to do the same.  Any reluctance or inabilities
 5       to support their opinions when confronted with original
 6       material will no doubt be taken into account by the
 7       Chairman in evaluating their evidence.
 8           My clients will each speak to the identification of
 9       Y7.  Some did so as part of the investigation into the
10       murder of Marion Ross, some did so as part of the test
11       that took place after Ms McKie had been identified as
12       the donor of Y7.  All stand by their professional
13       opinion reached at the time, which is that Ms McKie is
14       the donor of Y7.  In addition to the evidence of those
15       involved in the initial identification, there is
16       Mr Mackenzie's presentation prepared originally for the
17       Tulliallan conference which represents the most
18       comprehensive assessment of Y7 there has been so far and
19       which will form part of his evidence and will
20       demonstrate once again that Ms McKie is the donor of Y7.
21           It should be borne in mind that if their evidence is
22       accepted, the implication must be that Ms McKie has
23       been, through her denial that she was ever present in
24       the home of Marion Ross, the principal cause of the
25       damage to every individual involved in this case over
page  32
 1       the last 12 years, including herself.  If this Inquiry
 2       accepts that Y7 is hers, it must also accept Ms McKie,
 3       and Ms McKie alone, could have put an end to all of this
 4       at any stage.  Ms McKie and Ms McKie alone chose not to.
 5           In relation to the other three fingerprints with
 6       which this Inquiry is concerned, QI2 was a fingerprint
 7       found on a tin in the home of David Asbury.  The
 8       fingerprint was identified by my clients as belonging to
 9       Marion Ross.  This was viewed by investigating officers
10       at the time as a strong piece of evidence pointing to
11       the guilt of David Asbury and robbery as his motive.
12       Mr Wertheim and Mr Bayle have questioned that
13       identification.  My clients will give evidence regarding
14       their own identification of QI2 and Mr Mackenzie will
15       give evidence as to his own assessment from 2001 which
16       confirmed that identification.  Those who wish to
17       question the identification will, of course, have the
18       opportunity to do the same.  The identities of the
19       authors of the NTC report on QI2 from 2001 are not
20       apparent from the database copy: no names appear upon
21       it.  Again, my clients await the evidence of the authors
22       of that report with interest.
23           QD2 was a fingerprint found on the money in that
24       tin.  It was identified by my clients as belonging to
25       David Asbury.  It is important to note that my clients
page  33
 1       have, in some cases, not been made aware of reports in
 2       relation to these or other marks that criticise their
 3       work until long after the reports have been commissioned
 4       and acted upon.  In some cases, these were revealed to
 5       them only during the Scottish Executive's preparation
 6       for the defence of Ms McKie's civil claim.  An example
 7       is the report by the Danish experts, Mr Rokkjaer and
 8       Mr Rasmusson, in relation to QD2.  The conclusions of
 9       the Danish experts in relation to QD2 were later found
10       to be flawed, which is recorded in senior counsel's
11       analysis of the evidence available to the Inquiry as
12       having been discovered after Mr Zeelenberg intervened.
13       My clients await with interest Mr Zeelenberg's account
14       of this, standing his comments at Justice 1.
15           Their position is that the deficiencies in the
16       Danish examination of QD2 were identified sooner than
17       any intervention on the part of Mr Zeelenberg.  The fact
18       that Rokkjaer and Rasmusson's assessment of QD2 was
19       erroneous may well have been discovered sooner had my
20       clients had the opportunity to comment prior to the
21       preparation for Ms McKie's civil case, which could have
22       been done since the views of the Danish experts were
23       known as at the date of the precognition taken by
24       Mr Crowe at 31st July 2000.
25           My clients look forward to the opportunity through
page  34
 1       this Inquiry to address any criticism and to avail
 2       themselves of a right of reply which has, in respect of
 3       some of the material produced to this Inquiry, so far
 4       been denied to them.
 5           I have already mentioned the report in relation to
 6       QD2 and counsel has referred in his analysis to the four
 7       experts involved in the McKie trial not being told of
 8       the defence position until a later stage.  Other
 9       examples include the productions firstly by Mr Mackenzie
10       and Mr Dunbar at Tulliallan.  The effect of having all
11       material out in the open will be to ensure a fair
12       hearing for my clients and for the experts who have been
13       asked to produce these reports.
14           A reasoned comparison of the work of my clients
15       alongside that of the other experts who examined the
16       fingerprints involved in this case is the only way in
17       which a fair and therefore hopefully final determination
18       of the origins of Y7 and the other three fingerprints
19       can be achieved.  It is worth noting at this stage that
20       not all the experts' statements are yet available.  No
21       statement appears on the Inquiry database from
22       Mr Wertheim, nor from Mr Bayle (who criticised the
23       identification of Y7 and QI2 and were prepared to take
24       part in the Frontline Scotland programme in 2000 saying
25       so), nor from Mr Rudrud and Mr Zeelenberg, who look part
page  35
 1       in the HMIC review.
 2           My clients provided very full statements to this
 3       Inquiry at an early stage and a mechanism exists to
 4       compel anyone to give evidence to the Inquiry from whom
 5       it is required, though the difficulty with experts from
 6       beyond this jurisdiction is acknowledged.  In the event
 7       of reluctance on the part of those who have criticised
 8       the identifications to involve themselves with the
 9       business of this Inquiry or to speak to those
10       criticisms, I would invite the Inquiry to make use of
11       that mechanism in order to spare my clients the
12       invidious position in which they have found themselves
13       more than once before, having offered their full
14       co-operation only to discover have not been so
15       forthright.
16           Finally in the case of XF -- that was a fingerprint
17       found in the home of Marion Ross on the gift tag of a
18       Christmas present -- it was identified by my clients as
19       that of David Asbury.  Standing the age of the gift and
20       of the tag itself, it shows David Asbury was in the home
21       of Marion Ross shortly before her death.  My clients
22       will speak to the identification of XF, but in the
23       meantime it is worth bearing in mind one very grave
24       consequence of these fingerprints having been questioned
25       with the exception of XF, which has never been disputed
page  36
 1       (Rokkjaer and Rasmusson accept it was the fingerprint of
 2       David Asbury in their report of 7th August 2000), is
 3       that David Asbury, who was convicted by a jury of Marion
 4       Ross' murder, appealed that conviction, the Crown chose
 5       not to oppose that appeal, his conviction was quashed
 6       and he is at liberty today.
 7           The effect on the proceedings against Mr Asbury on
 8       those against and at the instance of Ms McKie cannot be
 9       the only subject matter of this Inquiry given the effect
10       on so many lives of the events in the last 12 years.  It
11       would seem wholly inappropriate in the light of the
12       tragic death of Marion Ross and the devastation caused
13       to so many other lives to make one or two individuals
14       the focus of these proceedings.  The effects in the
15       proceedings, however, are, in the view of my clients,
16       view of the principal consequences of the identification
17       of these fingerprints and must be considered by this
18       Inquiry.
19           The controversy that has been perpetuated in
20       relation to these fingerprints is a source of distress
21       not only to my clients but to many who have been
22       involved over the years with the fingerprints which are
23       the subject of this Inquiry.  One contributing factor
24       that has allowed the controversy to survive is the
25       absence of any judicial determination as to their
page  37
 1       origins.  No judicial assessment of the evidence
 2       available in relation to these fingerprints has ever
 3       been carried out.  The jury in Ms McKie's perjury trial
 4       did return a not guilty verdict and it is therefore
 5       acknowledged that they must have entertained at least a
 6       reasonable doubt as to the evidence before them, but
 7       that evidence is not all the available evidence in
 8       relation to these fingerprints and of course the jury's
 9       deliberations are in private and the reasons for their
10       decision not subject to public scrutiny.
11           The decisions of this Inquiry are open to public
12       scrutiny.  The reasons for the findings made by the
13       Inquiry will be public and the evidence on which those
14       findings are based will be available to all via the
15       sections of the Inquiry database eventually to be
16       published.  It is in the hope that a judicial assessment
17       of the evidence available, with all the expert testimony
18       given its due weight, with witnesses tested not only as
19       to their expertise but the credibility and reliability
20       of their accounts, will put an end to the speculation
21       that has plagued this matter to date, that my clients
22       present themselves to give evidence for what ought in
23       any event to be the last time on this matter.
24   THE CHAIRMAN:  Thank you very much.
25           Miss Grahame, have you any statement you wish to
page  38
 1       make?
 2   MISS GRAHAME:  My client does not with to make any opening
 3       statement.
 4   THE CHAIRMAN:  Thank you very much.
 5           Mr Macpherson, I think you said yesterday you did
 6       not intend to outline.
 7   MR MACPHERSON:  Thank you, sir.  That remains the position.
 8       The Chief Constable does not propose to make any
 9       statement at this stage.
10   THE CHAIRMAN:  Ms Jones?
11   MS JONES:  The SPSA does not wish to make an opening
12       statement.
13   THE CHAIRMAN:  Thank you very much.
14           There are only two matters that I want to raise.
15       The first was the question which was raised as to
16       whether the Inquiry within its Terms of Reference would
17       look at the exercise by the Lord Advocate of his or her
18       discretion whether or not to prosecute.
19           I take the view that that is a discretion that is
20       given to the Lord Advocate and that it is not for me to
21       comment or to enquire into the way in which the
22       discretion was exercised.
23           I think I should say that it may be inevitable that
24       the material that may or may not have been in front of
25       the Lord Advocate we will hear in the course of the
page  39
 1       Inquiry but, beyond that, I do not intend to comment on
 2       that issue at all or to deal with it.  As I say, I
 3       consider that is outwith my Terms of Reference.
 4           The other point that I would like to make is that in
 5       the course of statements that have been made available
 6       to the Core Participants, there are matters that I would
 7       regard as irrelevant to the Inquiry.  The fact that they
 8       have appeared in the statement does not mean that I am
 9       necessarily going to regard them as coming within my
10       Terms of Reference.
11           Where there is material which I regard as
12       scandalous -- and I use that I think as a term of art,
13       perhaps the way it is used in this jurisdiction -- then
14       I think a different consideration applies.
15           So far as that is concerned, one might ask the
16       question as to whether why, for example, I would regard
17       the allegations, which were very strongly refuted
18       through Mr Smith, about Ms McKie were not treated or
19       would not necessarily be treated by me as coming within
20       the definition of scandalous, though in popular sense
21       that is exactly what one might well describe them if
22       there is no evidential basis.  But the reason that I
23       might regard that as something of relevance is because
24       it could raise or be connected with the issue as to
25       whether Ms McKie had an opportunity to be in the house
page  40
 1       at the relevant time.  That is one situation.
 2           But where I come on material which I regard as being
 3       totally on an issue that may well be irrelevant to the
 4       Inquiry and equally is scandalous, then I do not see any
 5       basis upon which I should allow that to remain.  So it
 6       is for that reason that I propose to redact certain
 7       paragraphs which appear in a statement of Leslie Brown
 8       and which appear at paragraphs 52, the last five lines,
 9       and paragraph 52A, the entire paragraph.
10           Those are the only matters that I wish to deal with.
11       If there is any issue that any of the Core Participants
12       wants me to deal with today before we rise, then,
13       subject to that, I would intend to begin on Tuesday
14       morning at 10.15 with the evidence of Mr Heath.  I
15       suspect that his evidence will last most of that day or
16       all that day?  Maybe you are not in a position to say.
17   MR MOYNIHAN:  I am not the person directly responsible for
18       that.  Ms Carmichael will take the evidence next week.
19       That will very much depend on the extent of suggested
20       lines of cross-examination and I have agreed with my
21       learned friends that what we will do immediately after
22       we adjourn is have a private meeting amongst ourselves
23       to discuss the arrangements of cross-examination and
24       that will have an impact on timing.  Certainly our
25       understanding is it need not necessarily be the case
page  41
 1       that Mr Heath's evidence will take all day but, for the
 2       moment, it is impossible to give an estimate.
 3   THE CHAIRMAN:  It is just so everybody knows what the
 4       programme is and how many witnesses we might possibly
 5       deal with on Tuesday.
 6   MR MOYNIHAN:  Again, sir, if I can just say that that is one
 7       of the topics I am going to discuss in the meeting
 8       because there are some issues to be raised among the
 9       various Core Participants as to quite who we will call
10       and how long that will take.
11   THE CHAIRMAN:  I am sure with the co-operation which you are
12       getting we will proceed as rapidly as possible.  Thank
13       you very much.  We will meet again on Tuesday at 10.15.
14       (11.12 am)
15         (Adjourned until 10.15 am on Tuesday, 9th June)
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