page 1 1 Tuesday, 9th June 2009 2 (10.20 am) 3 THE CHAIRMAN: Good morning. Before we begin the evidence 4 of Mr Heath, there is one matter that I want to raise. 5 It came to my notice that Mr Smith who appears for 6 Mr Asbury might want to cross-examine about certain 7 matters that were contained in the statement of evidence 8 of Mr Heath and it seemed to me when I read the 9 statement that there were matters in it which were not 10 relevant to the Terms of Reference of this Inquiry and, 11 therefore, I am grateful for having had it pointed out 12 to me those paragraphs in the statement which it was 13 considered by Mr Smith and his team did have a bearing 14 on the subject of the evidence against Mr Asbury. 15 Now, I have had an opportunity to go through this 16 statement which, in effect, is the evidence in-chief of 17 Mr Heath and I think the most efficient way of dealing 18 with this is for me to say which of those paragraphs I 19 feel are not relevant to the terms of reference of this 20 Inquiry and, therefore, I would propose to redact and 21 then to give anyone who wishes an opportunity to give 22 comment to the contrary and try to persuade me that I 23 should take a different view. But I think the most 24 efficient way is just to say at the outset what I would 25 regard as not being relevant. page 2 1 When I say relevant, I think the Terms of Reference 2 of the Inquiry really confines me to those fingerprints 3 that were, loosely speaking, associated with the case 4 involving Mr Asbury but not the other elements, if any, 5 that may have existed in his case. 6 I have no difficulty with, for that reason, allowing 7 redaction of paragraphs -- I will take it slowly that 8 you can follow -- 154, 155, 165, 166, 169, 170 and then 9 we go forward to 190. 10 All I want to say about that is that I would be 11 inclined to take out the last sentence of 190 and the 12 reason it would appear to me to be relevant to leave in 13 the earlier part is because it shows why there was an 14 interest in the tin in which the money was contained. 15 191: I would be minded to take out the first 16 sentence but it seemed to me that the remaining 17 sentence, the remaining part of that paragraph, was 18 relevant because an issue actually has been raised about 19 why an officer of this seniority was taking prints to 20 the Scottish Criminal Record Office. So that is 191. 21 As I say, I will take out the first sentence which does 22 not seem to me to be relevant to my investigation. 23 Then 200 I will remove, 201 also. 203: again, I 24 would take out the last sentence beginning "However" but 25 leave in the first part because, again that has a page 3 1 bearing on why there was an interest in the tin. I 2 would take out 204, 205, 206, 211, 212, 213, 216, 218. 3 Now, 219 seemed to me again to have relevance in 4 relation to the money in the tin but not the last 5 sentence beginning "He had subsequently withdrawn ..." 6 220, I would redact 324, I would redact 326. 327 to 7 333 seemed to me to be relevant to the witness's 8 evidence and I would leave in. That is 327 to 333. I 9 would next take out 342 up to 343, all of that. 10 Then I would leave in 344 to 350 and I would then 11 take out 351, which is concerned with Mr Asbury and not 12 an aspect with which I am involved, and 352. I will 13 leave in 353 but on page 83, three paragraphs from the 14 bottom, beginning "I have detailed ...", I would take 15 that paragraph out and I would leave in paragraph 354. 16 Perhaps I should begin by asking Mr Vaughan who I 17 understand appears for the witness whether there is any 18 reason why he feels that any of those matters should 19 stay in that I have proposed should be redacted. 20 MR VAUGHAN: Excuse me a minute. (Pause) 21 Mr Heath's position is he is very happy to 22 co-operate in this Inquiry, restricting matters to the 23 Terms of Reference. 24 THE CHAIRMAN: Do not feel you need to stand. Sometimes the 25 microphones are easier sitting, Mr Vaughan. Please feel page 4 1 free to sit while you are addressing me. 2 MR VAUGHAN: Mr Chairman, having said that, these matters 3 have been produced at fairly short notice to us and I 4 have had little or no opportunity to discuss. 5 THE CHAIRMAN: Would you like a moment? 6 MR VAUGHAN: Yes, I would. 7 THE CHAIRMAN: Certainly. I think as I explained before, 8 however interesting it might be the evidence that was 9 collected or the police felt there was against 10 Mr Asbury, I take the view that my Terms of Reference, 11 as I explained a moment ago, really confine me to those 12 fingerprints that were involved in the case against 13 Mr Asbury and that that is really the relevance of the 14 proceedings against Mr Asbury so far as I am concerned 15 in this Inquiry and that I am really confined by my 16 Terms of Reference, but I will give you time. 17 I have adopted this course. Normally what happens 18 is that applications for redaction come at an earlier 19 stage, but it only arose because there was an 20 application to cross-examine on what I might call the 21 case against Mr Asbury and I felt that I could make an 22 exception by perhaps indicating that I would consider 23 redaction this morning rather than at the normal time. 24 So I will certainly give you time and may I take it 25 that everyone else would prefer to hear what Mr Vaughan page 5 1 has to say before they express a view? 2 MR SMITH: Certainly, for Mr Asbury and Miss McKie, our 3 position is very much that Mr Vaughan would like some 4 time. I am told by him the position to make 5 submissions -- not that I would necessarily agree with 6 what Mr Vaughan says -- but I would appreciate a few 7 moments as well. 8 THE CHAIRMAN: Please. I do not want to put anybody under 9 pressure, if you want to look at it and consider it. I 10 hope I have made it clear what I had in mind and I, of 11 course, want to hear from Counsel to the Inquiry also as 12 to whether they have any views. But I think the logical 13 way to take it would be everybody else can ask for any 14 contribution they want to make after when they have had 15 an opportunity of hearing everyone else. 16 Would it be convenient if I give, what, 15 minutes 17 or would you like longer than that? 18 MR SMITH: For our part I would think 15 minutes would be 19 more than adequate. 20 THE CHAIRMAN: If you indicate that it is not enough, if you 21 let me know I will give you longer. 22 So I will rise now until, let us say, 10.50. 23 (10.31 am) 24 (A short break) 25 (10.50 am) page 6 1 THE CHAIRMAN: Mr Vaughan, have you anything you would like 2 to say about this? 3 MR VAUGHAN: Well, firstly just to indicate on behalf of 4 Mr Heath, lest there be any doubt in this matter, that 5 most if not all information supplied by him in his 6 statement was in answer to a series of questions posed. 7 THE CHAIRMAN: By the Inquiry. 8 MR VAUGHAN: Rather than information simply provided. 9 THE CHAIRMAN: I quite understand. 10 MR VAUGHAN: Secondly, Mr Heath is happy to co-operate 11 strictly when referring to the Terms of Reference and 12 appreciates the importance of that. Having said that, 13 if anything is redacted and he is subsequently asked 14 questions on it, he may seek to reinstate those areas 15 redacted. 16 THE CHAIRMAN: Yes. I rather hope he will not be questioned 17 about anything that is outside the Terms of Reference 18 and if I miss it, if he draws it to my attention that it 19 is outside the Terms, then I will give it due 20 consideration. 21 But, subject to that, is there -- 22 MR VAUGHAN: There are two relatively minor matters. I say 23 relatively minor. You made reference to deleting the 24 first sentence in paragraph 191 which makes reference to 25 an ID parade being held. The only significance of that page 7 1 sentence so far as Mr Heath is concerned was that the 2 police station at Kilmarnock is extremely busy, there 3 was an ID parade. He is not mentioning in that 4 paragraph what the ID parade referred to. He just 5 simply says there was an ID parade and that is to 6 demonstrate how busy the office was and why he was 7 required to do what he did. That is the only 8 significance. 9 THE CHAIRMAN: I think the only reason it occurred to me was 10 whether the implication was it was an ID parade 11 involving Mr Asbury but it is not necessary -- 12 MR VAUGHAN: He does not go on to explain what the ID parade 13 was about deliberately because it is not relevant what 14 it was about, simply there was an ID parade requiring a 15 number of police officers; hence the reason why he did 16 what he did that day. 17 THE CHAIRMAN: I do not think you need to take up time with 18 that. Unless somebody has some strong objection to it, 19 I would be quite prepared to have that in as 20 demonstrating that. I mean, I think the whole 21 complexion of the statement was that he was a very busy 22 person with a great deal of responsibility. So at that 23 point -- 24 MR VAUGHAN: There is just simply one other matter. 203, 25 which is on page 45: as I understood it, you are page 8 1 proposing to delete the last sentence. 2 THE CHAIRMAN: Yes, that is all. 3 MR VAUGHAN: I am just wondering whether it may be what I 4 respectfully suggest that if that last sentence is going 5 to be deleted, then perhaps you may propose to delete 6 from line 4 starting with the words "The note ..." 7 because it really all relates to the same -- 8 THE CHAIRMAN: The next sentence beginning: 9 "The note also ..." 10 I think the only reason I was putting it in or 11 leaving it in was because, as I said, it showed why the 12 Inquiry was interested in the tin which we, in this 13 Inquiry, are interested in. I do not think a great deal 14 turns on it but I just thought it was relevant to that 15 issue. 16 Then I think unless anyone has any objection to the 17 fact that in the statement in 191 that an ID parade was 18 held as far as Mr Vaughan's points are concerned, I 19 would be happy to accept that point about leaving in the 20 fact that an ID parade was held in paragraph 191. 21 I come next to Mr Holmes. Do you have any points 22 you want to make about the redaction? 23 MR HOLMES: Indeed, sir. The first thing I have to say was 24 what Mr Vaughan said already which is the statement of 25 Mr Heath came about as a result of questions asked page 9 1 of Mr Heath by the counsel employed by the Inquiry team 2 to take the statements. 3 THE CHAIRMAN: Yes. 4 MR HOLMES: The second thing, sir, is that the information 5 elicited is not of itself scandalous, in the sense that 6 Mr Heath is not expressing a view as to Mr Asbury's 7 guilt, merely setting out the evidence against him which 8 has been done in public already during Mr Asbury's 9 trial. 10 He says specifically himself at the end of his 11 statement that he invites anyone reading it to come to 12 their own conclusions. 13 The third thing would say, sir, is deleting a large 14 tract of any witness's statement is liable to lead to 15 public speculation about what has been deleted. 16 THE CHAIRMAN: Yes. I should make it absolutely clear, even 17 as I am going to, understand that the scandalous part of 18 it in the Scots law in the sense I am not suggesting 19 that at all. This is merely relevance and what I do not 20 want the Inquiry to do is to spend time looking into 21 something that is not within its Terms of Reference 22 because I think I would be subject to criticism by any 23 reviewing court for going outside my Terms of Reference. 24 It is merely a question of relevance. 25 But I accept what you say. The Inquiry did record page 10 1 this statement, did ask a lot of questions but the fact 2 that that happens does not mean that I necessarily agree 3 that those questions were relevant, or the issues that 4 were raised. 5 Is it convenient now, Mr Smith, to take you next? 6 MR SMITH: As far as the ruling is concerned on the 7 redaction matters, we are entirely content with the 8 passages that you wish to redact. 9 As far as Mr Vaughan's submission is concerned, I am 10 not sure, sir, that you have rejected his submission on 11 the second point that was made, but I would certainly -- 12 unless you -- 13 THE CHAIRMAN: That I should take out more concerning the 14 reference to "grandfather", I think. 15 MR SMITH: Yes. I am not sure what your ruling is on that. 16 It may be my fault. 17 THE CHAIRMAN: I was inclined to leave it the way it was as 18 showing why the police were interested in the tin. 19 MR SMITH: Certainly, sir, that is my submission that it 20 should be left the way it is. I think we have to draw a 21 very clear distinction here between anything that, as it 22 were, revisits the question of Mr Asbury's guilt or not 23 and anything else which relates to the inquiry which 24 took place, the police inquiry, that took place 25 regarding the fingerprints. page 11 1 THE CHAIRMAN: I think just to remind myself, it is the 2 fingerprints associated with and leading up to the case 3 of Her Majesty's Advocate v McKie so that is why I have 4 taken the view that I am only looking at fingerprints. 5 MR SMITH: Sir, I am much obliged. I should say as far as 6 the passages that are being left in are concerned, 7 particularly those that a request for redaction has not 8 been granted, as it were, we have no difficulty with 9 that but I presume where the Counsel to the Inquiry does 10 not cover the matters left, the proposed redactions that 11 are left in, that what we are allowed, if anything, to 12 ask questions about. 13 THE CHAIRMAN: Yes, I think my concern at the moment is that 14 I want statements to go on the website as soon as 15 possible because, as I said earlier, I am treating a 16 witness's statement as their evidence-in-chief really 17 and I think it is right that that should be made known 18 as soon as possible and that is how I wanted to deal 19 with this at the outset, unfortunately keeping Mr Heath 20 waiting but I think that is the best way to do it. 21 MR SMITH: Thank you, sir. 22 There are two other matters that I feel I should 23 raise at this stage. One is that -- and this may come 24 up again -- the question of redaction. One of the fears 25 I have is in discussing the question of redaction in page 12 1 proposing something is redacted or arguing against it 2 being redacted that those representing parties here say 3 what the proposed redaction is which of course defeats 4 the purpose and I think perhaps I would certainly do my 5 best not to say what is in something and we can do it by 6 reference. I am sure everybody else can bear in mind 7 the position in that regard. 8 The second thing is that there are a number of 9 documents which are proposed to go live and 10 accessible to the public which may contain the same kind 11 of stuff that you rule on to be redacted. By way of 12 example, I say things broadest sense, there are 13 statements of Mr Heath provided previously that contain 14 some similar matters to those that we wish redacted. 15 They are not yet live to the public but in discussion 16 with Counsel to the Inquiry as recently as yesterday, I 17 think it was made clear by us that we need to discuss 18 what can, in fact, be made live for the very reason your 19 ruling covers. So I simply raise that just now. 20 THE CHAIRMAN: That is a very good point. I think we all 21 must try and stop the process because it could be very 22 difficult. Anything that is drawn to Counsel to the 23 Inquiry's attention I am sure they will try to ensure it 24 does not happen. I want to be consistent obviously. 25 MR SMITH: Thank you, sir. page 13 1 THE CHAIRMAN: Miss Grahame, do you have any point you want 2 to make? 3 MISS GRAHAME: We have no comments to make. 4 THE CHAIRMAN: Mr Macpherson, any points? 5 MR MACPHERSON: No sir, I have no submissions to make on the 6 proposed redactions. 7 THE CHAIRMAN: As everyone has now had an opportunity and 8 the only change that I propose to make then is to leave 9 in the passage about there being an ID -- now we are 10 confined to a very narrow issue, unless there is 11 anything you want to press me on. 12 MR MOYNIHAN: Sir, it is in response to my learned friend 13 Mr Smith asking for the background papers to be 14 similarly redacted. If I could simply remind parties 15 that there is a procedure document that indicates that 16 points of this nature should be raised in early course 17 because it is a mammoth task to actually sift through 18 documents to see if there is any material and an 19 impossible task if there is material in a document that 20 a Core Participant might take exception to being 21 published then we require that to be drawn to our 22 attention in early course because being a public Inquiry 23 the intention is material being referred to by a witness 24 should be accessible to the public as soon as possible. 25 I appreciate, and I have no difficulty, with this page 14 1 being the first day we are all new to the process, there 2 is an element of working into the arrangements. But the 3 request my learned friend has made might result in 4 material in the course of Mr Heath's statement being 5 delayed is one that will cause the administration of the 6 Inquiry quite some difficulty. I will attempt in 7 conversation with my learned friend to reach some 8 accommodation but I would ask that all Core Participants 9 about aware for the future of the procedure so this 10 difficulty does not occur again and delay the Inquiry 11 and, in particular, delay public access to the material 12 by the Inquiry. 13 THE CHAIRMAN: I endorse that and I am sure everyone will 14 try to co-operate. I am sorry to have overlooked you. 15 I should say since we have lost -- lost isn't quite 16 the word but spent some time not sitting this morning I 17 really think we should just go on until lunchtime and 18 not break at 11.50 unless if at any time you want a 19 break you must tell me. 20 STEPHEN HEATH (sworn) 21 THE CHAIRMAN: For the record just repeat your full name, 22 Mr Heath. 23 A. Stephen Heath. 24 THE CHAIRMAN: Thank you. Please take a seat and, as I 25 said, a moment ago, if at any time in the course of your page 15 1 evidence you want a break, because I realise it is 2 demanding for witnesses, then just say so, please. 3 Examined by MISS CARMICHAEL 4 Q. Mr Heath, as I think we have heard this morning, you 5 prepared a written statement to the Inquiry and you 6 signed that. 7 Have you satisfied yourself that that was a truthful 8 record of matters covered in it? 9 A. Yes, that's correct. It was electronic and I signed it, 10 yes. 11 Q. Before we turn to your evidence in a little more detail, 12 I would like to find out a little bit more about your 13 own career in the police, Mr Heath. 14 I wonder if you could tell us how long you spent as a 15 police officer. 16 A. Yes, I was 30 years with Strathclyde Police. 17 Q. And I think you retired in 2006? 18 A. Yes, that's correct. 19 Q. How long were you a Detective Chief Inspector? 20 A. I think I was a Detective Chief Inspector for about two 21 years but a Chief Inspector in another role for about 22 three. 23 Q. You spent all of your police career with Strathclyde 24 Police? 25 A. Yes. I worked in a variety of roles from constable page 16 1 through to detective superintendent but out of the 2 30 years I probably spent around 22 years as a detective 3 in all the ranks up to detective superintendent in 4 varying roles, the Serious Crime Squad, Drug Squad, 5 surveillance, firearms. 6 Q. I know that many of the people in the room today will 7 know a lot about how the police works, Mr Heath, but for 8 those that don't and the members of the public who do 9 not, at the time we're interested in you were a 10 Detective Chief Inspector? 11 A. Yes, that's correct. 12 Q. And I wanted you to tell us where in the structure of 13 the police, in the hierarchy, a Detective Chief 14 Inspector fits in? 15 A. In Strathclyde Police at that time there were 19 16 territorial divisions -- I think it was 19 -- based on 17 areas of the country -- Strathclyde, sorry. In each of 18 these divisions there is a Divisional Commander, Chief 19 Superintendant uniform, a deputy who was 20 a superintendent and within that structure within the 21 division would be CID. Each division was split into 22 subdivisions and I think we had three at that time 23 covering Kilmarnock, Saltcoats and Ayre. The Detective 24 Chief Inspector had overall responsibility for the 25 management of crime within those areas and I will have page 17 1 managers at the rank of detective inspector level 2 managing the subdivisions. So basically my role was to 3 oversee the management of crime in the division, to run 4 major inquiries, sometimes be involved in 5 investigations, as I was at this time, outwith the 6 division also and I carried maybe some portfolio work as 7 well. 8 Q. But your involvement we should understand is at a fairly 9 high level in the management structure of the police? 10 A. Yes. I would say it's a strategic level but sometimes 11 because of the business you get dragged down to an 12 operational level. It's unavoidable. 13 Q. In the Marion Ross investigation, you were the Senior 14 Investigating Officer and you appointed a deputy, 15 Mr McAllister; is that correct? 16 A. Yes, that's correct. 17 Q. Can you give the Inquiry some picture of just what his 18 role involved? 19 A. Alex McAllister was one of the divisional detective 20 inspectors that I referred to earlier in that role, very 21 experienced man at the time and when you ask someone as 22 a deputy Senior Investigating Officer you are basically 23 saying you are devolving at times when you have to 24 responsibility, the delegation of certain matters but 25 with a close working relationship and I would suggest page 18 1 that my role was perhaps more strategic in terms of the 2 direction of an investigation and managing of the 3 resources and making sure they are all singing from the 4 same hymn sheet whereas his role is perhaps delivering 5 some of the strategic decisions at that level, 6 operational level. 7 Q. Turning to the beginning of the Marion Ross murder 8 investigation, I wonder if I could refer you to 9 paragraph 28 of your statement. That is page 6 of FI13. 10 A. Yes. 11 Q. You tell the Inquiry there that you felt there was a 12 high possibility that the death of Miss Ross was a 13 murder and not a suicide? 14 A. Yes, that was the initial assessment I had and of the 15 other officers who had been on the scene. 16 Q. There is a point I would like to raise with you about 17 that, Mr Heath, and I wonder if we could have a display, 18 please, of document AC4 at page 3. 19 Mr Heath, I think this is an extract from one of your 20 own notebooks; is that correct? 21 A. Yes. 22 Q. I would like to refer you to a passage just at the top 23 of the right-hand side under the figure 38. I wonder if 24 you could read out to us just what it says there. 25 A. Yes, it says: page 19 1 "Initial impression suicide, no forced entry." 2 Q. What I am wondering there is what you say about your 3 impressions regarding suicide there with what you have 4 recorded in your statement to the Inquiry. 5 A. I think summarising there the opinions of a number of 6 people that were there. I think the pathologist had 7 indicated that she had seen worse incidents with 8 injuries, I think a relative had indicated the 9 possibility of suicide but these are just notes I've 10 made to myself. I was of the firm view, and I am in 11 retrospect as well, and recollection, that that was 12 being dealt with as a suspicious death but the note 13 making at that time is simply saying, "Initial 14 impression suicide, no forced entry". 15 Q. You told the Inquiry in your statement that the official 16 investigation of the inquiry as a murder inquiry was 17 something that had to wait to the post-mortem results. 18 What I am interested in is what practical consequence 19 there was, if any, that the investigation wasn't 20 designated as a murder Inquiry at the very outset. I 21 wonder if you could help the Inquiry with that? 22 A. I have been to many scenes of deaths and suspicious 23 deaths. I've seen incidents from hypothermia, both 24 outside and inside, or other incidents which have left 25 me with the impression I'm definitely dealing with a page 20 1 murder investigation when I'm not. So I can't really 2 designate something as a murder officially until I've 3 had a post-mortem, the details of the injuries and what 4 actually happened. Sometimes you can have people lying 5 outside, deceased who have been shot and you don't know 6 until the body has been x-rayed they have been shot. 7 But in terms of the initial approach to this 8 investigation, although the initial impression says 9 suicide, were at the very highest level. We dealt with 10 the scene and secured it, we started with a 11 house-to-house through DI McAllister, we took some 12 clothing from a neighbour who found the body and there 13 were other actions taken during the course of that 14 evening in terms of photography, the securing of the 15 house and actions the next morning that were undertaken 16 which happened at the highest level. So there's nothing 17 there, in my view, that we did at that time that was any 18 less than an approach to a very suspicious death. 19 Q. This Inquiry obviously is particularly interested in 20 fingerprint evidence in the investigation, Mr Heath, and 21 with that in mind the designation of the investigation 22 as a suspicious death in the first instance rather than 23 the murder what I'd like to focus on is whether that had 24 any effect on the gathering of the fingerprint evidence 25 in the case? page 21 1 A. I think you need a forensic strategy. So just to speak 2 to fingerprints isn't the whole picture. If that had 3 been an outside location where there was that level of 4 suspicion there's certain forensic things will have had 5 to have done to secure the evidence in case it 6 deteriorated. This was an inside location with a 7 secured house where, if we kept the house secure and we 8 put people on the doors and nobody got in, the evidence 9 was preserved in that house. Plus, by the time we had 10 left that scene and by the time, for example, the body 11 of Marion Ross had been removed, you were into around 12 probably 11.00/12.00 at night on recollection or late on 13 in the evening. That's not a time to start calling out 14 resources who are tired by the next morning or you have 15 people working who are not there full-time for you. So 16 what I'm really saying is that a forensic strategy 17 really needs to be designed the next morning. For 18 example, does a chemist need to go in first, does a 19 biologist need to go in, what is the order of 20 examination? On many occasions, a post-mortem can say 21 to you that certain things happened that you perhaps 22 don't know about that affect that forensic examination 23 and the order of -- that was a big job. The order of 24 how you do that job can also often be directed by a 25 post-mortem examination. page 22 1 Q. I think I am right in saying in this case the Scenes of 2 Crime Officers tasked with finding fingerprints actually 3 went in quite early the next morning 9th January; is 4 that correct? 5 A. Yes, and although DI McAllister wasn't designated 6 officially in charge of the house and the examination of 7 the house, I think he was there the next morning trying 8 to run matters and getting things going. You don't 9 really want people doing these examinations that aren't 10 going to be with you for a period of time. So there's 11 impact on staffing for the Identification Bureau, 12 there's impact on staffing for other specialisms that 13 needs to be taken into account. 14 I have on occasions been on an outside location where 15 a body has been found in the evening. We've had to make 16 some tough decisions and leave that in situ as long as 17 the locus is protected. So I would say that this was 18 operating at the highest level, control was in place and 19 it was a strategy beginning from that night with 20 house-to-house, seizure of clothing, interviewing of 21 witnesses. It was much above the level of suicide that 22 it would normally be. It was a professional approach. 23 Q. Now, turning back to the evening of 8th January, 24 Mr Heath, I think you left the scene perhaps about 11.00 25 at night? page 23 1 A. Yes. 2 Q. Do you recall yourself seeing an officer Gary Gray at 3 the scene? 4 A. I think Gary Gray was at the scene. I think he'd been 5 on working that evening and called to the scene. So I 6 think he was at the scene. 7 Q. Was Michael Moffat at the scene by the time you left? 8 A. I'm not sure about the name. There might have been 9 someone else there. 10 Q. This would be a Scenes of Crime Officer, Mr Heath. 11 A. Possibly but I can't recall specifically. Yes, I think 12 there was someone from Scenes of Crime there but I can't 13 recall specifically. 14 Q. There has been a suggestion to the Inquiry that Mr Gray 15 may have been present at the scene at some stage with a 16 torn glove. Is that something you can recall seeing or 17 on which you can cast any light? 18 A. No, I can't recall seeing it. 19 Q. Have you heard of that suggestion before? 20 A. No, I haven't heard of that suggestion. 21 Q. Again, at the scene of the crime on 8th January, were 22 you involved in the arrangements for the officers who 23 would keep watch at that time? 24 A. I think I just left instruction with DI McAllister to 25 make sure the house was secured or even Gary Gray. I page 24 1 can't recollect totally but I would certainly have 2 specified that the house needed to be secure. 3 Q. There has been a suggestion to the Inquiry, Mr Heath, 4 that a number of officers were stationed to keep watch 5 but allowed access to the living room rather than simply 6 being in the porch of the property during the course of 7 that evening. 8 Is that something of which you are aware? 9 A. It's not something of which I'm aware. I wouldn't know 10 the purpose of that if there was a purpose to that that 11 related to the investigation or whatever, but it's not 12 something I'm aware of. 13 Q. I take it then that that was not something that would 14 have been done on your own instruction? 15 A. No, definitely not. 16 Q. Would that have been normal practice in an investigation 17 of this type? 18 A. I'm unclear because that's the first I've heard of that. 19 I mean, my role was to go in, we looked at the scene, we 20 left instructions about what was to be done. When I 21 leave that scene, I'm assuming that I have delegated 22 authority to have that scene controlled. So I can't 23 help you any further with that. 24 Q. Can you comment as to whether the fact that officers may 25 have been stationed in the living room or allowed access page 25 1 to the living room in the course of their duties keeping 2 watch, whether that would have affected the exercise the 3 next day and the following days regarding the collection 4 of fingerprint evidence? 5 A. Well, what happens, as I said to you, often a 6 post-mortem can indicate that perhaps where the body of 7 Miss Ross was found wasn't necessarily where an attack 8 had taken place. So for me, anything within that house 9 beyond that door needs to be protected unless people 10 have to be there for a purpose and that's the clear 11 instruction that was left because I regarded that as a 12 suspicious death and we put in place things that I would 13 normally put in place for a suspicious death. 14 Q. So, without a good reason for putting officers in the 15 living room, that is not something that you would 16 necessarily have thought was a good idea yourself? 17 A. No, it's not necessarily a good idea. I think I left 18 DI McAllister there at the locus with clear instructions 19 to secure, and Gary Gray, and to carry out what related 20 to the house. 21 Q. Moving on, Mr Heath, to a slightly different topic, this 22 was an investigation where the HOLMES computer system 23 was used I think and, again, for the benefit of those 24 who may not be familiar with how that works, I wonder if 25 you could explain what the HOLMES computer system was at page 26 1 the time? 2 A. HOLMES stands for Home Office Linked Major Enquiry 3 System. To my recollection it was brought in after the 4 Yorkshire Ripper series of murders because data and 5 information which was collected manually and written 6 wasn't properly joined up in terms of search 7 cross-reference. So basically what it is is an 8 electronic system of recording a major crime 9 investigation which allows cross-referral to statements, 10 cross-referral, for example, to car numbers and colours 11 and really nothing should be missed within that system. 12 The main thing, it's an audit trail of everything 13 that's done. 14 One of the issues with HOLMES is that if you delay too 15 long in bringing in HOLMES from the beginning of an 16 investigation, it takes a long time to then gather the 17 data that has been gathered before you bring in HOLMES 18 and it can take some time to back-log it on to the 19 system. 20 So a decision in bringing in HOLMES is an important 21 decision. HOLMES also brings with it an administrative 22 burden in terms of the number of staff required to man 23 the incident room and the paper flow of system and on a 24 big Inquiry which gathers and gathers you can end up 25 with a lot of data and you have to be fairly focused in page 27 1 determining where you're going and what your policy is. 2 Q. I would like to display for you, please, a particular 3 HOLMES action in this inquiry, Mr Heath, and that is 4 CO1435 at page 2. I don't have particular questions for 5 you about this action, Mr Heath, but we perhaps also can 6 use it to help explain how HOLMES would work in 7 practice. 8 We see about three lines down action number A225. 9 A. Yes. 10 Q. What exactly is an action in the context of HOLMES so 11 that we can understand the context? 12 A. Actions would start at number 1 and would be pieces of 13 work which needed to be done. So an action would be 14 allocated to the detectives working on the investigation 15 for them to go with the action and complete the 16 instruction that's on it. So starting at 1, that's 17 action number 225; so previously there have been 224 18 actions or pieces of work issued to the inquiry team. 19 Q. If we look at the line underneath "action", can you tell 20 us what piece of work being allocated here is? 21 A. It says "TST", which means take statement "DC Cardwell 22 N372." So "N" is a nominal number, "N" is a number 23 allocated to someone's name who has cropped up on the 24 investigation. What it says is "police officer is seen 25 9th January 97 code" I think that's a particular code page 28 1 for the area "current state filed". So it's a filed 2 action out for work. I think that would say take 3 statement from DC Cardwell police officer at scene and 4 it comes from document 13, which is a copy of a log from 5 the scene. 6 Q. So if I can stop you there, the N numbers are things 7 that are given to anybody whose name crops in the 8 inquiry, whether that is a police officer or somebody 9 else? 10 A. Yes. 11 Q. And a D document would be a document number that would 12 be allocated to documents that had been either come to 13 your attention or been generated in the course of the 14 inquiry? 15 A. Yes. 16 Q. I interrupted you when you were going to copy of log at 17 scene, Mr Heath. 18 A. Reference is made to DC Shirley Cardwell N372, which is 19 the nominal number, new division CID: 20 "Scene take statement from DC Cardwell regarding her 21 involvement in this Inquiry." 22 Q. Then when we go to linked actions, do we see a series of 23 dates there in the left-hand column? 24 A. Yes, I think that refers to the follow-on work -- it's a 25 long time since I've seen one of these. I think that page 29 1 refers to the following on work from the issue of the 2 action and what's being done. 3 Q. So when you see 15th January, presumably the action 4 being raised from the document the log, what actually 5 happened when an action was raised? 6 A. I think someone in the incident room would be an action 7 allocater would look at what needed to be done in terms 8 of, for example, someone who's been at the scene who a 9 statement needs to be taken from because anyone who 10 visited the scene a statement should be taken from. So 11 they've raised the action on the 15th at that time, 12 raised from document 13. So document 13 is the 13 originating document for that. Then it's allocated on 14 the 16th to DC Cardwell and then on the 17th it's 15 changed to "completed", which means the action has been 16 completed. 17 Then it's on the 17th it's resulted. So that's 18 resulted with a response. 19 Q. How would the officer to whom it has been allocated, DC 20 Cardwell, how would she know that an action has been 21 allocated to her, just at the simplest level? 22 A. Probably someone at the incident room would say, "Come 23 in. There's an action for you to give a statement". 24 Most of that work would be done from the incident room. 25 Q. I think you have been asked about this action in your page 30 1 statement and you deal with that at page 29 at 2 paragraph 127. I think your suggestion, when you were 3 asked why a request might have been made for a statement 4 at this stage from DC Cardwell, was because it was she 5 was leaving the investigation? 6 A. Yes. 7 Q. I wonder if you could look at another document for 8 display, please, at CO1473 at page 13. You will correct 9 me if I am wrong but this would appear to be a very 10 similar action allocated on the same date to DS Shields? 11 A. Yes. 12 Q. Who was the slightly more senior officer paired with DC 13 Cardwell at the time. 14 A. Yes. 15 Q. I don't think Mr Shields was himself leaving the inquiry 16 at this stage. 17 Does that make any difference to your view of why the 18 statement may have come to be requested? 19 A. Yes, it does. Perhaps you would perhaps need to ask 20 inspector Thomson who is running the incident room but 21 what it looks to me is that they have been working at 22 house and it's actually been followed up by the incident 23 room quicker than someone leaving the Inquiry. So it 24 looks as though DS Shields and DC Cardwell have been 25 asked to supply statements fairly quickly after having page 31 1 been known to be at scene. I'm not sure actually 2 because I'm not really involved in the issue of that 3 action as such so I think you perhaps need to speak with 4 the incident allocater about why it was allocated at 5 that time. 6 What it refers to is DS Shields and DC Cardwell were 7 working as a pair. They had been at the locus. It may 8 have been that DC Cardwell was leaving at the time and 9 prepared the actions at the time or that there was some 10 kind of piece of work going on from the incident room to 11 take statements from anyone who'd attended the scene. 12 Q. I wonder if we could look, please, at CO288 on the 13 document display. At the bottom of page 2, if you look 14 maybe at the last four to five lines there, if we could 15 have those enlarged. 16 If you see just at the very bottom there the words, 17 "During the visit I ..." and if we could move to the 18 next page, please, the top of the page and enlarge the 19 writing as well, it says: 20 "I remained within the porch area, touched no surfaces 21 within the house and stood on metal plates placed within 22 the area by officers of the identification branch." 23 Mr Heath, you will appreciate perhaps with hindsight 24 what happened later in this Inquiry there is perhaps a 25 slight curiosity as to why an officer may have come to page 32 1 give a statement in those terms as early as 2 17th January. 3 Can you help us with why that might be? 4 A. I really can't because I think this is the first time 5 I've seen this document. I think you would need to see 6 the origin of that and speak with the action allocater 7 and the incident room staff in relation to that. 8 Perhaps they were looking for anyone who had been in the 9 house at that early stage to put on HOLMES but I'm not 10 sure. I'm only conjecturing there so I'm not really 11 able to help you on the origin of that. 12 Q. The Inquiry may come to hear that this particular 13 document which is set out of the statement from DC 14 Cardwell was in fact handwritten up by Mr Shields rather 15 than by Ms Cardwell, as she was at the time. 16 Can you enlighten us as to how that might come to be 17 in the ordinary course of things? 18 A. That someone else would write someone's statement? 19 Q. Yes. 20 A. I'm not sure. Perhaps because they were together but it 21 is a bit unusual that someone would write someone else's 22 statement. I don't recall -- I would certainly prefer 23 that every officer wrote their own statement. It's a 24 bit unusual but perhaps DC Cardwell was involved working 25 on something else and DS Shields has been asked to page 33 1 complete the statements. I'm not sure. 2 Q. Just returning for a moment to the HOLMES system, what 3 we see here is a handwritten statement. 4 A. Yes. 5 Q. These statements themselves become part of the HOLMES 6 system in a typed form. 7 A. Yes. 8 Q. How does that happen? Does somebody take the 9 handwritten version and put it into the system? 10 A. Yes. There's a number of word processor operators who 11 would go through the statements and put them on the 12 system. 13 Q. So it follows that when you find in the course of 14 looking at an inquiry that there are handwritten 15 statements which then come to be in the system in 16 another form and can be printed out as and when required 17 thereafter? 18 A. Yes, yes. 19 Q. Moving on, Mr Heath, to another topic, it came to be at 20 a particular stage that a man called David Asbury was 21 arrested in the course of the inquiry and what I would 22 like to ask you about is your contact with the 23 Procurator Fiscal at the time and just after when 24 Mr Asbury was taken into custody. I would like to refer 25 you in particular to paragraph 222 of your statement page 34 1 which is at page 49. 2 A. Yes. 3 Q. What you say there is that you have been asked and at 4 some point, more likely when you delivered the custody 5 case, Mr McMenemy saying to you that it was a fairly 6 circumstantial case? 7 A. I think that was the general comment he made, yes. 8 Q. Again, so that everyone who may be interested can 9 understand, what do you mean when you are saying you are 10 delivering the custody case? 11 A. If someone is arrested and appearing in court, then we 12 have a duty as the police to provide the information 13 evidence to the Procurator Fiscal. So in terms of the 14 chain, we are the providers of the information to the 15 Procurator Fiscal. Normally, I go over as a matter of 16 courtesy, although it would normally be electronically 17 mailed (but I can't remember if we had that at the time) 18 or sent to the Fiscal's office or delivered through a 19 case management system. But on most cases of a serious 20 nature, I would go over and visit once they had the case 21 and if there were any questions they wanted to ask, then 22 we would discuss matters because there may have been 23 issues that they wanted further interpretation of. 24 Q. Again, just to clarify the stage at which you are doing 25 that, is that before or after the first time that an page 35 1 accused person would appear in court on petition in a 2 case of this sort? 3 A. It's before. This occasion here is before appearance, 4 yes. 5 Q. You have mentioned a Mr McMenemy. I think at the time 6 there were a number of senior Fiscals working in the 7 Kilmarnock office with whom you had contact in this case 8 and I think there was also Mr McTaggart and 9 Mr McGlenannan you made contact with also. 10 A. Yes, yes. 11 Q. What is your best recollection of what John McMenemy 12 said to you about the strength of the case when you 13 delivered the custody case to him? 14 A. That's my general, best recollection that he said it was 15 a fairly -- John and I knew each other fairly well. 16 We'd worked together for some time and what I would say 17 myself is my duty is to provide as much information to 18 the Procurator Fiscal as possible. It's their decision 19 on what occurs in terms of appearance at court or not. 20 So although John's comment is "it's a fairly 21 circumstantial case" -- I think, there have been a 22 number of redactions that we've agreed to here -- we 23 discussed issues within the case and Mr Asbury appeared 24 in court as a result of the decision with John McMenemy 25 based on the evidence presented to him. page 36 1 Q. Without going into the detail of anything that has been 2 redacted, Mr Heath, it is fair to say that there had 3 been by that point, which would have been about 4 23rd January, a fairly extensive inquiry with a number 5 of lines of investigation. 6 You would agree with that? 7 A. This was an extremely thorough investigation. 8 Q. And you reached a stage where your team had identified a 9 suspect and that person was about to be brought to 10 court? 11 A. Yes. 12 Q. It can happen that the Crown, even at that stage when 13 the police have identified a suspect, don't always feel 14 they are in a position that they can proceed? 15 A. That's where the balance is very important in terms of 16 someone's liberty; that it's an independent decision 17 based on the evidence provided to them. 18 Q. But would it not be the case that there would be some 19 degree of frustration for police officers having reached 20 that stage of an enquiry if ultimately it was not 21 possible to bring somebody to court? 22 A. Not necessarily -- if you get too involved in a case as 23 a Senior Investigating Officer, then you would just not 24 be able to do the job because I've been on many 25 occasions, in many cases, where things like that have page 37 1 happened. But then again, you're human and you take a 2 pride in your work. So, yes, you probably -- personally 3 yes, I would be but I felt in terms of the case we were 4 taking over we were presenting a sufficiency to the 5 Procurator Fiscal. But, again, it's his independence 6 and his decision. 7 Q. In the week or so, eight days, between when Mr Asbury 8 first appeared on petition and when he came to be fully 9 committed in court on 31st January, you were continuing 10 to work on the case and, again, without going into 11 detail, to update the Fiscal? 12 A. This is why I'm very pleased to be here at the Inquiry 13 and given this opportunity because I've read many 14 comments and seen many comments about when a suspect is 15 or when someone's arrested the investigation stops, 16 et cetera, et cetera. 17 We continued with a vast amount of work. I take it 18 very seriously if someone's liberty is taken away and 19 they are put in custody. I have a duty, a public duty, 20 to ensure that the investigation is thorough in all 21 aspects, particularly in that period between the initial 22 custody appearance and the period of reappearance which 23 can often be a very short period. So I had my team and 24 my officers working extremely hard during that period 25 and doing a lot. There was a lot of significant page 38 1 evidence developed that week. 2 Q. In the course of that week did you have further 3 discussions with any of the Fiscals at Kilmarnock about 4 the strength of the case? 5 A. I recall a request from Mr McTaggart -- I think it's in 6 my statement -- to give him information on two specific 7 areas which I did and I attended and I met with 8 Mr McTaggart and I gave him that additional information. 9 Q. In the light of what we have been told about the 10 circumstantial nature of the case and in the light of 11 being asked to provide information about specific 12 issues, was there perhaps a degree of pressure on you to 13 gather further evidence against David Asbury? 14 A. As a Senior Investigating Officer you have to thrive on 15 pressure because it's a very busy, very important job. 16 So in terms of pressure, pressure is how you deal with 17 it no matter what role you're in. As far as I was 18 concerned, this was a professional investigative 19 approach to a very -- every murder's bad but this was a 20 very bad murder, if we can say that. So there's no 21 additional pressure on me. I simply have my people 22 working as hard as they possibly can to pursue the lines 23 of enquiry and I know he's(?) a very, very tenacious 24 investigator. So a lot has been made perhaps about the 25 comment of this is a very circumstantial case. I've had page 39 1 many discussions or had many discussions with John 2 McGlenannan about cases. It's healthy that there's a 3 discussion like that and I've been very open in 4 including that in my statement and in any discussion. 5 So for me there's no additional pressure. We do the 6 job anyway and we're going to try and get as much work 7 done as we can before the next appearance because that's 8 our duty to an accused person as well and to the 9 relatives of the victim and the victim. That's our job. 10 Q. Staying on the period between 23rd and 31st January for 11 a moment but moving away from the Fiscal to relations 12 with the Scottish Criminal Record Office, Mr Heath, I 13 think you confirm in your statement that your colleague, 14 DI McAllister, had visited the Scottish Criminal Record 15 Office on Saturday 25th and that you had visited on 16 Sunday 26th to take Mr Asbury's arrest prints to them? 17 A. And I think there were some elimination prints as well. 18 Q. At the start of your evidence today, you did describe a 19 role that's managerial responsibility of oversight and 20 strategic responsibility in relation to the murder 21 investigation. The picture perhaps that emerges is you 22 and the other senior officer, DI McAllister, assigning 23 day-to-day jobs, routine matters to the more junior 24 officers in the investigation. That would be the 25 general structure? page 40 1 A. Yes. 2 Q. What we see here and what you have told us in your 3 statement is a Senior Investigating Officer travelling 4 up to Glasgow from Kilmarnock doing what appears to be 5 legwork in taking arrest prints and elimination prints 6 along to the Scottish Criminal Record Office. 7 Why would that be occurring? 8 A. I think the phrase is commonly used is slaughtered. My 9 staff were slaughtered. I think we worked for -- I 10 don't know -- 14/15 days in a row 12/14 hours a day. I 11 think I had taken a Saturday off which was one of the 12 first days off for an awful long time, I believe, and 13 Alex McAllister was on duty. So I came on the Sunday 14 and DI McAllister had left a note and an envelope 15 requesting I go there. Sometimes as a senior manager 16 you help out and you do things, so I did it and I took 17 it up and I wrote it in my notebook that I'd gone. 18 I think in terms of retrospect, if I'm looking back 19 from 12 years hence, that everything that occurred in 20 between you would look at that and say, "Well, that's 21 unusual". Well, quite often there's an ID parade 22 running, there's no cars left, it's a Sunday morning in 23 one of the busiest divisions in the Strathclyde Police 24 with the Saturday night chaos that can often occur, 25 every officer is busy, it's important the documents go page 41 1 up before the Monday and Alex asked me to do it so I do 2 it. 3 Q. How often in your career up to that point had you 4 visited SCRO offices? 5 A. Not often at all. 6 Q. In the time you have been a Detective Chief Inspector 7 how often had you visited the offices there? 8 A. Not often at all but in terms of this investigation this 9 was an investigation that was unusual and it was 10 particularly focused on fingerprints. There were, I 11 think, in the region of 400 fingerprints from that 12 house, all of which were very important to be 13 identified, eliminated, whatever. So sometimes you can 14 be, for example, in an investigation where you are 15 linking closely with ballistics, linking closely with 16 the chemistry side of an investigation. In this 17 particular investigation we were linking closely on the 18 fingerprint side. 19 Q. In the course of your career up to the point that we're 20 talking about, you had presumably been involved in a 21 number of investigations where fingerprints were 22 important? 23 A. Yes. 24 Q. You would presumably also have had direct contact with a 25 number of the people working at the Scottish Criminal page 42 1 Record Office on fingerprints in the course of those 2 investigations? 3 A. Not really. It was only really this particular 4 investigation where we had the strategy meetings that 5 occurred and in that -- I can't even remember who was at 6 the fingerprint office that day when I took the envelope 7 up. I don't know who was there. I didn't really know 8 any of them individually as such. 9 As I say, that particular Sunday was very unusual 10 because we had no staff left, the request was made by 11 DI McAllister and I took an envelope up. It really is 12 as simple as that. 13 Q. I get the flavour from what you say here and perhaps 14 from what you are saying at paragraph 192 of your 15 statement at page 42 that you were saying that you were 16 not in a close relationship with the people at the 17 Fingerprint Bureau. You used the words "relatively 18 distant". 19 A. Yes. 20 Q. I wonder if you would look, please, at document DB0258 21 if we can have that on screen. This is a note that 22 seems to be recording the Saturday visit by your 23 colleague that we have already mentioned but at the very 24 bottom if we look at the passage which seems to be 25 underneath some initials, we see "Sunday, Stevie Heath page 43 1 brought in acs TP", presumably accused's print, and a 2 number and "elims". 3 Mr Heath, are you Stevie to everyone or just to your 4 friends. 5 A. In actual fact this indicates to me how little they knew 6 me because it's drummed in to me from my mother, "Your 7 name's Stephen", and in actual fact a few weeks ago 8 someone I knew, a colleague, was calling me Stevie and 9 he could see the look and he said, "You don't like to be 10 called Stevie, do you", and I said, "No, it's Stephen". 11 So for me this simply indicates someone has written a 12 note and they've decided to call me Stevie because I'm 13 not known as Stevie. 14 Q. It's not just your Sunday name? 15 A. It was drummed in to me from my mother and it's still 16 with me. 17 Q. Because you will appreciate, Mr Heath, that people who 18 have seen that note have perhaps thought that that did 19 indicate that you were in quite a familiar relationship 20 with the people at SCRO. 21 A. I can probably understand that. I think there are a lot 22 of PhDs in retrospect going about based on what's 23 happened in the 12-year gap. To me, that's a harmless 24 note that somebody's written at the time and I happened 25 to be in the door. It was well known. I was a busy page 44 1 investigator, et cetera. It doesn't mean I was well 2 known in SCRO but my name's Stephen and everybody calls 3 me Stephen. 4 Q. Just picking up on your being well known there, being 5 well known it's something that doesn't always work in 6 one direction, Mr Heath. If you are well known to them, 7 people may find it more difficult to understand how 8 people who worked there were not well known to you as 9 somebody who had been involved in a lot of criminal 10 investigations over the years. 11 A. Because SCRO are mainly independent. I didn't have a 12 lot of close work with them as such and this particular 13 investigation in terms of the focus and in terms of the 14 work Alex McAllister was doing in the house resulted in 15 hundreds of prints going from the location to the 16 Identification Bureau to SCRO. Now we have to also 17 consider at the time that SCRO are actually taking in 18 prints from all over the place. There are other 19 enquiries going on, there are other murder 20 investigations going on where I don't doubt fingerprints 21 are important. 22 For me, sometimes also in terms of meeting with SCRO 23 or whatever it's about thanking people for their focus 24 and their work as well. But, no, I didn't really know 25 any. The only one I know that I can see there is Fiona page 45 1 McBride who I have seen in the media. I couldn't 2 actually put a name to anyone else in SCRO. 3 Q. Just picking up on what you said there about thanking 4 people for their focus in their work, can you explain to 5 us what you mean by that, Mr Heath? 6 A. The fact is that the work Alex was doing, 7 Alex McAllister was doing, in terms of in charge of that 8 house and having fingerprints going up and the 9 elimination process and the amount of work that was 10 going through the laboratory, that was going through 11 SCRO in terms of the checking they were doing and the 12 juggling, I don't doubt, of all the work they were 13 having to do apart from that, it was a significant 14 contribution to the investigation. That's all I mean. 15 Q. Again, when you say thanking them, how did you go about 16 thanking them? What were you doing that would be 17 perceived as thanks? 18 A. Well, I think in some of the strategy meetings we had 19 because we had other meetings with SCRO with the lab and 20 with everything else, I think it's very good practice 21 for a Senior Investigating Officer to be at these 22 meetings, although Alec's running the ground level 23 stuff, and to be present and say, "Can we keep going 24 with the work? Can we keep working on", and, "I 25 appreciate all your efforts", because being a Senior page 46 1 Investigating Officer is like conducting an orchestra. 2 You know about all the instruments in there, you can 3 maybe play a bit of them and if you don't have the 4 orchestra together and working together, then people 5 think, "Maybe he's not appreciating the work we're 6 doing", et cetera, et cetera. So you're juggling those 7 relationships as well and so that's what I mean by that. 8 It's just a simple -- it's a simple management tool. 9 Q. Perhaps staying on that theme, Mr Heath, and about the 10 communications that you had with people at SCRO in the 11 course of the investigation, I wonder if you could look 12 for me, please, at document DB0256. Again, this is a 13 note that was found in documents from Scottish Criminal 14 Record Office and what we see here is a note in relation 15 to a gift tag and saying: 16 "They [and I think the Inquiry thus far has read that 17 as the police] are hopeful about the tin the money was 18 in. There is an area the same size as the tin on her 19 bedside table, clearly seen as dust around it, recovered 20 at accused's." 21 That seems to record a very specific line of enquiry 22 whether ultimately it came to be a good one or not was 23 something that had been communicated at people working 24 in the Fingerprint Bureau at SCRO. 25 Why would such a specific line of enquiry be page 47 1 communicate to the people working there? 2 A. I can't really answer that. I think -- I don't know who 3 authorised this note, and I don't know if you managed to 4 identify who authorised the note, but I would suggest 5 that the question with regard to that is perhaps 6 better posed to them. 7 I think there could be a number of interpretations 8 about that. It could be that the Identification Bureau, 9 in terms of their examination of the tin, were hopeful 10 that fingerprints would develop in the examination. I 11 really don't know. I think also you maybe need to speak 12 with Alex McAllister in terms of what were the 13 operational matters that were being discussed. It's a 14 simple fact that in terms of focus and examination and 15 direction of investigation that sometimes you have, you 16 know, a list of eliminations. 17 For example, if we look at the examination of the 18 interior of the house the bathroom had had a shower unit 19 newly fitted in Marion Ross' home. It's a natural thing 20 to try and trace the people who fitted the bathroom, the 21 elimination prints from the fitters and send them to 22 SCRO to be examined against those prints. 23 So sometimes on a line of enquiry I don't think that 24 there's anything untoward in terms of trying to focus 25 examinations because, as I say, as long as you're not page 48 1 focussing too far, but there are various demands on SCRO 2 and on the IB where they have to focus their work in 3 that way because they are juggling other investigations 4 and other enquiries. It's not just the Marion Ross 5 investigation at that time. 6 Q. Again on the question of focus in the enquiry, Mr Heath, 7 if I can direct you to paragraph 227 of the statement 8 you have given to the Inquiry, what you said there is 9 that logically you would want marks on the tin and the 10 money to be compared against Mr Asbury and Miss Ross' 11 prints but you go on to say that you would have been 12 interested in all marks on the tin and the money. 13 Do you know yourself what comparisons were instructed? 14 A. No, I don't know specifically but it would be -- if 15 we've got someone like Mr Asbury in custody and he's 16 reappearing and we've seized an item from a house which 17 may have items in that item which possibly connect back 18 to the murder scene, then I think it's our duty to make 19 sure that that line of enquiry is pursued in a focused 20 way within the period of time prior to his reappearance 21 in court. 22 Q. I wonder if you could look at DB0263. I think the 23 Inquiry may hear that impressions XQ5 to XP6 are a 24 series of impressions found on the bank notes and can 25 you tell us what we're looking at here? page 49 1 A. To me it looks like Alex McAllister's writing, I may be 2 wrong there but that's what it looks like and what we're 3 seeing is it's a list to be checked for elimination 4 purposes. So they're trying to focus on what 5 elimination prints should be checked against these 6 particular prints and that then is a list there that 7 seems to indicate names where eliminations have been 8 sent to SCRO for comparison against that print. That's 9 what it looks like to me. 10 Q. That would perhaps show that the instruction wasn't at 11 least in relation to the money focused solely on 12 Mr Asbury and Miss Ross? 13 A. Yes. No, it would show that a number of different 14 people have been quoted, yes. 15 Q. I wonder if you could look, please, at DBO260. 16 A. Yes. 17 Q. That seems to be "the subpostmaster elims to come, issue 18 D Asbury". 19 Would it be correct to read that as an instruction 20 that eliminations were expected in relation to a 21 subpostmaster also? 22 A. The issue for me is that I'm not writing, you know, this 23 note; so for me to interpret that note you would need to 24 ask the person who's writing it. But what it seems to 25 say is subpostmaster eliminations to come issue David page 50 1 Asbury, X amount of money. That's what it says. But in 2 terms of the message to be delivered -- 3 Q. You can't help us with that. 4 Now there is another document we would like you to 5 look at, please, at DB0251 at page 33. Is this a 6 document that you have seen before, Mr Heath? 7 A. No. I don't think I've seen that at all. 8 Q. Is it a form of document that you are familiar with? 9 A. Yes, I think it's a form of document I've seen before. 10 Q. Can you help the Inquiry with what it is on the basis of 11 your experience? 12 A. I think that's -- I forget the number of the form but 13 what it does it refers to the investigation, it refers 14 that I'm in charge of the case and it looks as if it's 15 gone from a Martin Gibbens from maybe the Identification 16 Bureau to SCRO and then there's a stamp there, "received 17 by SCRO". 18 Q. I think the Inquiry will hear that in fact it was 19 completed by Mr MacNeil who was a Scenes of Crime 20 Officer in the Identification Bureau. 21 If you look about halfway down we see impressions 22 photographed and where found and the letters QB2 to QL2? 23 A. Yes. 24 Q. This is a series of marks that QI2 which came to be a 25 much discussed mark, Mr Heath. What you see below that page 51 1 is an entry, "Ident required for deceased". 2 Do you see that there? 3 A. Yes. 4 Q. On the basis of your experience, Mr Heath, is this a 5 normal form of instruction from somebody in the 6 Identification Bureau to the Scottish Criminal Record 7 Office? 8 A. I wouldn't have thought so and on seeing that for the 9 first time I don't regard that as professional. 10 Q. Why do you say that? 11 A. Because it's being far too specific. Again, you're 12 asking me to comment on a document that someone else has 13 filled out and written something on when in actual fact 14 you should be questioning that person what they meant by 15 that because there may be a number of interpretations 16 about what's said there. 17 Q. Mr Heath, on that very point, did you issue any 18 instruction that an identification was required for the 19 deceased, Miss Ross, in relation to QI2? 20 A. Absolutely not. 21 Q. Were you involved in giving any instruction as to the 22 standard to which mark QI2 on the tin should be 23 identified; that is, as to whether it was to be an 24 identification on an elimination against Miss Ross? 25 A. No, not to my recollection. Most of that particular page 52 1 work would be done by Alex McAllister. I mean -- 2 Q. Would you ever in the course of an investigation 3 involving fingerprints be involved in saying to the 4 Fingerprint Bureau, "I want this done to a court 5 standard", which at the time would have been 16 points 6 of similarity rather than say, "Well, I'm interested in 7 whether you can eliminate that". Is that the sort of 8 discussion you would ever be having? 9 A. Absolutely not. That's not my role, not my remit. My 10 role is to run a murder investigation as a cop, present 11 the evidence to the Crown, present statements, 12 et cetera, et cetera, and I rely on experts, be it 13 ballistics, drugs, fingerprints, the orchestra. I knew 14 a bit about it but I rely on the orchestra to perform 15 the work that they are experts in. 16 Q. Again, still in the same period and still on the theme 17 of the Scottish Criminal Record Office, Mr Heath, at 18 paragraph 210 of your statement page 46 you record 19 attending a meeting at the lab, SCRO Identification 20 Bureau meeting on 29th January. 21 A. Yes. 22 Q. Given Mr McAllister's role in liaising with the Scottish 23 Criminal Record Office and others, what was the purpose 24 of your attending at that meeting? 25 A. I can't really recall. I know that it's written in my page 53 1 notebook that I went to the meeting. I can't recall if 2 Alex McAllister was at that meeting because it's 3 12 years ago and in terms of the specifics of why I'm 4 there, I think in that particular period of time I 5 wanted to make it clear to everyone that although 6 someone was in custody here, this investigation was 7 still going on to look at any suspect as such who was in 8 the system, any examinations which still had to take 9 place and clothing, which was still in the laboratory, 10 had to be done as well. 11 So I don't recall exactly the purpose of the meeting, 12 but it was a general strategy meeting probably, which 13 were regular. So whether Alex McAllister was busy, with 14 somebody else whether he was with me whether I was there 15 on my own there's nothing sinister about that. But I 16 was under the pressure at stages after arrest probably 17 two or three weeks to pull back a bit on the amount of 18 investigations we were doing and in terms of the 19 staffing as well. You will see in the HOLMES notes and 20 in the policy files and everything I was very clear: any 21 TIE (trace interview eliminate) people that were still 22 in the system had to be eliminated. Any prints that 23 were still there had to be eliminated if possible and 24 any forensic work that still needed to be done, even if 25 it didn't relate to Mr Asbury, still had to be done and page 54 1 I think we still raised in the region of 200 actions, 2 you know, not related to Mr Asbury after that arrest. 3 Q. Moving on to a slightly different topic, and back 4 slightly in time for a period, I think there was a point 5 at which DS Shields and possibly DC Cardwell, as she 6 was, made a request to go and visit the crime scene at 7 Irvine Road in Kilmarnock. 8 Is that something you remember? 9 A. Yes. 10 Q. Can you recall for me the approach? 11 A. I think it was the Mr Shields who was speaking and 12 DC Cardwell was there and it was in my office and I 13 recall him coming up to my desk and asking if they could 14 go into the house. 15 Q. What was your response to that? 16 A. I think that was only a few days into the commencement 17 of the investigation and I had made it very, very clear 18 in terms of briefings and everything else that unless 19 you were a nominated person to be in that house, you 20 didn't go into that house and everyone knew that. 21 Q. Why in your experience might officers want to see a 22 crime scene at first hand rather than, for example, on 23 video? 24 A. Well, people are keen and going into a location 25 sometimes in terms of a Senior Investigating Officer, page 55 1 for example, can often give you a better picture and 2 feel of what happened, even in retrospect, visiting 3 crime scenes, looking years back as I have done, 4 visiting a location can give you a better idea than 5 seeing a video. I also think there was an action 6 allocated to DS Shields and DC Cardwell to look at the 7 sequence of the rows(?) of the house that was very 8 important. So in terms of the request to enter the 9 house, it related I think mainly to that, to undertaking 10 the action and the work related to the action. 11 Q. In relation to the particular house at 43 Irvine Road, 12 Kilmarnock, were there features of it that might have 13 made it particularly desirable for officers to be able 14 to see inside, at least in their own minds? 15 A. There's a curiosity amongst detectives. I want people 16 working in our team who are keen to work but I'm not 17 sure what you mean by particular features inside that 18 house. 19 Q. Well, perhaps as to its layout. I'm sorry, the question 20 was not very clear. 21 A. Yes, I think we had done a diagram, a fairly detailed 22 diagram, that was developed in the incident room, of the 23 layout of the house. The video sometimes isn't great 24 for showing the layout of a house because actually it's 25 focused on particular areas as it moves around but I page 56 1 think there was a very specific diagram. But, again, 2 for me, if I'm in charge of an investigation or I'm 3 retrospectively examining an unsolved murder I want to 4 go and look at the location. But in this situation 5 there was very clear instructions over people not 6 visiting that location. 7 Q. Starting to focus on the mark that became known as Y7, 8 Mr Heath, and that part of the investigation, at a 9 certain stage I think you said in your statement it came 10 to be that there were a relatively limited number of 11 fingerprints that hadn't been eliminated or identified 12 as belonging to somebody known. 13 A. Yes. 14 Q. One of these was a mark Y7 on the bathroom doorframe on 15 the ground floor of the crime scene and I think the 16 Inquiry has evidence that Miss Ross' body was found, was 17 in the bathroom, in the doorway. 18 A. Yes. 19 Q. So that was a mark that was of some interest and 20 importance to you? 21 A. Yes. 22 Q. Your statement that records that it came to your 23 attention that that mark had been identified as 24 belonging to Ms McKie, who was DC Cardwell at the time? 25 A. Yes. page 57 1 Q. And you record that at paragraph 245 of your statement. 2 That is page 54. 3 A. Yes. 4 Q. Now, what you record there is that you were informed 5 that mark Y7 had been identified as being DC McKie and 6 that you told one of them, that is DI McAllister and 7 DI McDonald to go and speak to DC McKie about it and get 8 it sorted out. 9 What was your intention in asking Mr McAllister or 10 Ms McDonald to get it sorted out? 11 A. I think perhaps you're focussing on the phrase "sorted 12 out". I just wanted the matter resolved and when I say 13 resolved, what is the explanation of the print being in 14 the house. That was my intention. 15 Q. What did you think they would do in response to your 16 instruction? 17 A. Well, ask Shirley Cardwell how her print was found 18 within the house, what was the reason for it being 19 there. 20 Q. You go on to record that you learned that DC Cardwell 21 was denying that the print was hers. 22 A. Yes. 23 Q. At paragraph 247 of your statement, if I can refer you 24 to that, Mr Heath, towards the end of that paragraph you 25 say that you felt she was protesting too much and that page 58 1 you were concerned about her reaction. 2 First of all you spoken to Ms McKie at this point 3 yourself? 4 A. No. 5 Q. In what way were you concerned about her reaction? 6 A. Because after Alex McAllister had gone to speak with her 7 I heard loud discussions along the corridor about the 8 matters because my office was just along from wherever 9 this was taking place. So I didn't feel it was a matter 10 that needed to be, you know, as open as that. 11 Quite often on many investigations I've known police 12 officers to leave fingerprints at crime scenes. It's 13 not a huge deal, as such. I mean, it's not professional 14 totally, it's not professional in a situation like this, 15 it's even more so when specific instructions have been 16 made, it's not good. But at that stage it's not 17 critical. So I wondered why all of this fuss was going 18 on. 19 Q. What had you actually been able to hear of Ms McKie's 20 reaction at the time? 21 A. I can't remember now. I just remember hearing a 22 commotion that clearly related to that, that the 23 print -- I think it was along the lines of the print 24 wasn't hers and she hadn't been in the house and I just 25 I didn't really think it was appropriate for that to be page 59 1 going on in the environs of the office where there might 2 be other staff there. 3 Q. Why was that? 4 A. Because it was more of a private matter. I mean, it was 5 a matter that could have been harmless, could have been 6 resolved more simply, perhaps wasn't for general office 7 discussion. That's the reason I saw it in. 8 Q. What steps did you take on learning that there was some 9 measure of dispute about Y7 at that stage? 10 A. Well, I felt that there was a strong reaction to it. It 11 was a matter that might settle itself or might be a 12 natural reaction if someone says to you the inference is 13 you haven't done your job properly or you made a 14 mistake. 15 So I felt that -- I was told Ms Cardwell was off for 16 the next couple of days so my reaction was let it 17 settle, let the dust settle on this and let's see if 18 there's an explanation for it or an account for it once 19 the whole thing settled a bit. 20 Q. In the days that Miss Cardwell or McKie was away from 21 work, there was some contact with the Fingerprint Bureau 22 at SCRO. 23 Was that at your instruction? 24 A. Yes. I asked Alex if he could check in terms of the 25 identification what the position was. page 60 1 Q. What did you learn from that? 2 A. It was reconfirmed that there was an identification. 3 Q. At paragraph 248 of your statement, if you look at that, 4 Mr Heath, just on this topic, you say that DI McAllister 5 and to the best of your recollection DI McDonald and you 6 had discussions with SCRO over the 11th and 12th, "to 7 see what the strength of the identification was." 8 I wonder if you could elaborate on what discussions, 9 if any, you were involved in with SCRO during that 10 period? 11 A. My recollection's not clear on whether I called the SCRO 12 but I think Alex McAllister maybe did but I know that I 13 called in at one stage and I think that's in my 14 statement somewhere but I can't recall that at the 15 moment. 16 Q. What discussion did you have with SCRO? Can you recall 17 what was said by you or by the person that you spoke to? 18 A. No, I can just remember going into SCRO because this was 19 now -- it was an important matter and I wanted to know 20 the strength of the identification, you know, because I 21 was going to be challenging one of my officers two days 22 later and also, from a professional point of view, I 23 don't think I'd ever been in a position questioning a 24 fingerprint identification before and there are 25 relationship issues in that at the time also. So it was page 61 1 a matter of professional courtesy. 2 I think I was up in Glasgow anyway, I called in and my 3 conversation was, "What's the position with the print? 4 Are we absolutely certain about this?" And I even felt 5 that that was a difficult position for me to be in. But 6 it was a matter of professional courtesy really. 7 Q. There are two points I'd like to pick up on what you 8 just said, Mr Heath. 9 You said that you wanted to know what the strength of 10 the identification was and that you may have to have 11 discussions about that. 12 What did you learn to your mind about the strength of 13 the identification? What were you being told? 14 A. I think it says in my statement that -- there's 15 somewhere in the statement where it says that there were 16 rumours of an identification. 17 Q. I think we are still on paragraph 248 there. 18 A. I know there were numerous points of identification, so 19 I can't even remember who I spoke to in SCRO at that 20 time but maybe they -- mainly they found the 21 identification was made and it was positive. I can't 22 recall specific conversations on that. 23 Q. The other point I wanted to pick up on regarding your 24 answer, Mr Heath, is what you said about the working 25 relations. I think in your statement also you talk page 62 1 about the preservation of working relationships and I'd 2 like to clarify with you just exactly what you have in 3 mind there. 4 A. I'm raising the question in the work. My staff are 5 important to me and always have been and anyone who 6 works for me would say that. So what I'm going to be 7 doing two days later is challenging a member of my staff 8 on something that's important and I want to be very, 9 very sure, plus I'm questioning someone's work and I'm 10 aware that there's a system of checking an SCRO which 11 involves maybe two or three people verifying the 12 identification of a fingerprint. So in terms of keeping 13 a relationship going, I think it's professional 14 courtesy. 15 If I was in the same position and someone was perhaps 16 questioning the work I had done in which I was an expert 17 in, I would hope that someone might come and speak with 18 me about that. That's all that was. 19 Q. Moving on to paragraph 252 of your statement which deals 20 with 12th February, you do not yourself recall 21 involvement in getting the mark re-photographed and 22 taken to SCRO? 23 A. No, I don't and I think -- to my recollection, I think I 24 was involved in job interviews that day, I think it says 25 in my notebook but I'm not certain on that, but I think page 63 1 I was heavily engaged in job interviews that day. So 2 whether it was re-photographed or not, I'm not clear. 3 But I certainly don't remember being directly involved 4 in that particular action, although maybe you're 5 better asking Alex McAllister of the matters that 6 happened because I think he was more involved in that. 7 Q. Again moving on to Thursday 13th February which you deal 8 with at paragraph 254 and the following paragraphs, is 9 this the reference to the courtesy call that you have 10 been telling us about, Mr Heath? 11 A. Yes and I think paragraph 255 perhaps explains better 12 what I didn't maybe explain better there. That's 13 exactly what it was about. 14 Q. You say you were looking for reassurance in that 15 paragraph. 16 What exactly were you asking them for, Mr Heath, 17 there? 18 A. I think if I'm challenging a member of my staff or even 19 perhaps -- because on that occasion, as far as I was 20 aware, DS Shields and DC Cardwell had been working 21 together all the time as a pair and there was a denial 22 in terms of the fingerprint being in the house. So for 23 me, both were therefore implicated as such in any denial 24 and it was just a matter of belts and braces things. It 25 was courtesy in saying to them; that's all. page 64 1 Q. Moving on to Friday 14th February which you deal with at 2 paragraph 259 and following paragraphs, that's the day 3 that DC Cardwell came to speak to you herself. 4 A. Yes. 5 Q. Was that the first occasion you had spoken directly to 6 her about the matter? 7 A. Yes, I think it was. 8 Q. What did she say to you on 14th February? 9 A. I think she was emphatic that she'd not been in the 10 house, basically. 11 Q. At that stage, did she offer you any explanation as to 12 how it might be that a mark there had been identified as 13 hers? 14 A. No, I can't recall that she did. I think it was just 15 clear that she hadn't been within the confines of the 16 house. 17 Q. She didn't suggest that the fingerprint had been 18 misidentified or that it had got there by some means 19 that it should not have at that stage? 20 A. I don't think so at that stage. I think at that stage 21 she just said she'd not been within the house and 22 it's definitely not her print. But she could interpret 23 it as being mis-identified. 24 Q. And you record there that you took DC Cardwell and DC 25 shields along with Detective Inspector McAllister along page 65 1 to the scene at 43 Irvine Road. 2 A. Yes. 3 Q. Why were you doing that? 4 A. Sometimes it can help in terms of memory. So I felt -- 5 I was trying to be really fair because two concerns 6 clearly: one was in terms of the case itself and 7 fingerprint evidence in the case; and the other one was 8 that this situation in terms of two of my officers was 9 becoming serious and that if we went along and looked at 10 the locus it might assist them to remember if they had 11 been in the house. 12 Q. But in fact nothing altered after the visit? 13 A. No. 14 Q. At paragraph 264 of your statement, you say you had to 15 formally record matters. What steps did you take at 16 that stage, Mr Heath? 17 A. I felt once I'd done all of that and been to SCRO, I'd 18 given it time for reflection for the people involved, 19 I'd gone to the scene which I felt was a fair step to 20 take, I had to formalise this now because I'm a Senior 21 Investigating Officer having run a very serious 22 investigation and from there I felt there was nothing 23 else I could do but formally record this in the HOLMES 24 system and obtain statements. 25 Q. What did you anticipate would follow from that Mr Heath? page 66 1 A. After a visit to the house I think it was going to be 2 clear that there were going to be statements from the 3 two officers saying they had never been beyond the porch 4 basically. But in terms of the HOLMES system and in 5 terms of integrity and the action that had been taken 6 over the few days I felt it was really important that it 7 was audit trailed at that point that we had statements 8 which covered. 9 Q. So this was a way of getting the dispute formally into 10 the system? 11 A. Yes. 12 Q. I would like to ask you about what you recorded at 13 paragraph 265 of your statement, Mr Heath. 14 A. Yes. 15 Q. You mentioned there a DC Lunardi making you aware of a 16 previous incident involving DC Cardwell or McKie. 17 A. Yes. 18 Q. You say that you have not heard of that before and you 19 did not refer to it in any subsequent reports. 20 Did you pass that information on to anyone at any 21 stage? 22 A. No, I didn't. The reason I remember this is it was 23 just, kind of, Jill Lunardi was bringing me documents 24 and mentioned this almost casually, as it were. For me, 25 I think you have to work in boxes: one box is open, page 67 1 there's another box there. The box open here was I was 2 trying to deal with this situation here and I was now 3 going to do a report and submit it about this but I 4 remember that comment from Jill Lunardi. 5 Q. Were you aware of others in Strathclyde Police talking 6 about that matter at about this time? 7 A. This was the first time I'd heard of this. 8 Q. Did it become part of the -- if I can put it this way -- 9 office gossip at Kilmarnock after you became aware of it 10 here? 11 A. I can't recall exactly but I don't think it was -- I 12 certainly hadn't known about it and I'm not necessarily 13 involved in the office gossip as such so I can't really 14 comment. You probably need to ask other officers on 15 that. 16 Q. That same day, 14th February, you went on to have a 17 meeting with some senior officers in your division, 18 Divisional Commander Cameron and Deputy Divisional 19 Commander Thomson having made a report to them. 20 At paragraph 270 you record that at the meeting those 21 officers and Chief Superintendent Gibb took a decision 22 to keep the matter within the Division and not take any 23 formal disciplinary steps or notify anyone else outwith 24 division. 25 What was your view about their course of action, page 68 1 Mr Heath? 2 A. They're senior officers and they're making a decision 3 based on what they see. So maybe they had a perception 4 and viewed things as different. For me in terms of the 5 integrity of the investigation in terms of my position I 6 felt I had to report that on the HOLMES system, as I've 7 indicated before, is an audit trail of a decision in 8 time when I record that. 9 They made the decision to do that but that's the 10 Divisional Commander and Deputy Divisional Commander and 11 I'm then instructed by them to do something, so I did 12 it. 13 Q. And the instruction that you got from them was to ask DC 14 McKie to report for duty? 15 A. Yes. 16 Q. By that time you had already effectively put matters in 17 train for it to reach the HOLMES system before you met 18 with those officers? 19 A. Yes. 20 Q. Moving on to 15th February, that was a day, albeit it's 21 a Saturday, when you were actually on duty in the 22 office; is that correct? 23 A. Yes. 24 Q. You received a call from DC McKie. 25 Can you recall what she said to you in the course of page 69 1 that call? 2 A. I can't recall exactly but I do recall she said it was a 3 terrible mistake and she wanted the fingerprints and 4 eliminations checked again. 5 Q. Did she give any indication at that stage as to whether 6 she thought that SCRO had made a mistake or that the 7 fingerprint had got there by some means that it ought 8 not or anything of that sort? 9 A. I think there was a clear inference from DC Cardwell 10 that SCRO had made a mistake. There was no doubt about 11 that. She was convinced it was a terrible mistake and 12 she wanted her prints and eliminations taken again. I 13 think that may have been written in the notebook in 14 terms of what was said -- I'm not sure -- but that's my 15 recollection. 16 Q. Do you recall a conversation with Mr Shields on 15th 17 February? 18 A. Not particularly, no. 19 Q. Do you recall a conversation perhaps to give you a 20 little more detail, where he told you that DC Cardwell 21 or McKie was not moving from her position and that his 22 suggestion was he could only see her accepting the print 23 was hers if the whole comparison exercise were done 24 again with her watching? 25 A. There may have been that suggestion but I'm not sure. I page 70 1 can't recall that conversation. He may have done. 2 Q. Do you recall a conversation on that date with 3 Mr Shields or at any other stage where you expressed the 4 view to him that he and DC McKie would be finished if 5 their position regarding the fingerprint did not change? 6 A. No, I don't recall that conversation, no. 7 Q. Mr Heath, would I be right in saying that at some stage 8 DC McKie came to allege that fingerprint Y7 had been 9 placed at the locus by means of planting via the 10 officers. Is that something you became aware of? 11 A. Yes, I think I heard that third-hand, not directly, that 12 had been an allegation that had been made, yes. 13 Q. That wasn't something she said to you directly? 14 A. I don't recall her saying that to me directly. 15 Q. Can you recall how you became aware of that? 16 A. I can't remember exactly how that came. But I think it 17 was later. I think it was later than this occasion. 18 Q. At what stage insofar as you can recollect now, 19 Mr Heath, did you become aware of that? 20 A. I really can't remember exactly when. 21 Q. What was your reaction to that? 22 A. Well, that one of our own officers would suggest that, I 23 just couldn't comprehend that because it's not something 24 that anyone in my professional approach would 25 contemplate. I can't -- I couldn't understand how page 71 1 anyone could contemplate that, particularly those in the 2 police, how anyone could do that and why? What's the 3 logic of it? The whole thing just seemed ludicrous. 4 Q. Were you angry? 5 A. I don't think anger's a good emotion. I think maybe 6 "disturbed" is better. 7 Q. In fact, there was a further exercise to re-photograph 8 mark Y7 and have it compared again. Were you involved 9 in that at all? I think your statement indicates not. 10 A. No, I was away on another investigation. 11 Q. Did you have any input into the decision that that 12 should be done? 13 A. No, not to my recollection. 14 Q. You are then away for a short period but you become 15 involved again, certainly on 20th February, and the part 16 of your statement that deals with that is paragraph 281. 17 You record there that you told the Deputy Divisional 18 Commander that you intended to speak to the Procurator 19 Fiscal. 20 What was your thinking in doing that, Mr Heath? 21 A. I report to the Fiscal in matters relating to the murder 22 investigation, for example. As far as I'm concerned the 23 house, the locus, belongs to the Procurator Fiscal as 24 such. I'm acting on the Procurator Fiscal's behest. 25 Therefore, if work of that nature is taking place when page 72 1 there have been other fingerprint identifications which 2 are important, I just felt that perhaps the Fiscal 3 should have been involved in that decision. 4 That was my view. There may have been good reasons 5 for taking that action. That was my view. 6 Q. What was the Deputy Divisional Commander's reaction when 7 you said to him that was your intention? 8 A. To go to the Procurator Fiscal? 9 Q. Yes. 10 A. I can't really remember but for me as an SIO I recorded 11 on the HOLMES system, I've been away working and there's 12 now an audit trail of the situation and the report I've 13 done which I've submitted, which I feel should go to the 14 Procurator Fiscal almost immediately explaining the 15 circumstances, still hasn't gone. I think I'm going on 16 my leave for a period of time after that. So my belief 17 is the Procurator Fiscal is made aware of the 18 circumstances that occurred because I think it's 19 important. 20 Q. Please don't take it you are being criticised for this 21 certainly in these questions, Mr Heath. I simply 22 wondered what the other officer's reaction had been if 23 you could recall it. 24 A. I can't recall it, sorry. 25 Q. You record that you met Mr McMenemy at the Fiscal's page 73 1 office, in paragraph 283, and I think if we could look 2 briefly at page 4 of AC003 and have that on the screen, 3 please. I will not delay matters with the document 4 display, but I think your note records that you met both 5 Mr McGlenannan and Mr McMenemy on that occasion. 6 A. I seem to recall Mr McGlenannan was there as well. It 7 was an important issue and I asked to see to him. 8 Q. Could we do the next page, please? Yes, indeed, I'm 9 sorry, the mistake is mine. Just at the bottom of the 10 right-hand page there you record that you see 11 Mr McMenemy and Mr McGlenannan and fully update them on 12 DC Cardwell. 13 A. Yes. 14 Q. So that is the meeting report that we find in your 15 statement there. 16 A. Yes. 17 Q. You record at paragraph 284 that Chief 18 Superintendent Gibb and the Deputy Divisional Commander, 19 Mr Thomson, asked you to review the matter. 20 Can you tell the Inquiry about your reaction to that 21 suggestion. 22 A. Yes. I didn't think it was a particularly good one 23 because I was the Senior Investigating Officer in charge 24 of the murder investigation when a man was in custody in 25 relation to other evidence but also in relation to page 74 1 fingerprint identification. 2 I felt that and I've always felt that in terms of 3 independence it's very important that if someone's going 4 to take an investigation of that nature that they are 5 independent as such from the circumstances. So I think 6 if I'd been sitting here today, for example, and I had 7 undertaken that work, then I think there would be 8 difficult questions around impartiality -- not that I 9 wouldn't be impartial, but I just didn't think it was a 10 good idea. 11 Q. In fact others came to be involved in reviewing the 12 matter? 13 A. Yes. 14 Q. Moving on, Mr Heath, please, if we may, to the part of 15 your statement dealing with Monday, 31st March which 16 starts at paragraph 295. It is paragraph 297 that I 17 would particularly like to ask you about, at the bottom 18 of page 64. 19 A. Yes. 20 Q. You record there that there was at the same time a 21 growing awareness that there had been several visits to 22 the house by DC McKie. 23 Can you explain what you mean by the growing awareness 24 that you mentioned there? 25 A. I think it was like a rumbling, like, you know, the page 75 1 staff within the office, comment that was coming to me, 2 a comment that was being made was that there had been a 3 number of different visits to the house. That's all I 4 mean. 5 Q. What I had wondered was whether you had perhaps started 6 yourself with an awareness of perhaps one visit or two 7 visits and then you had become aware of a further visit. 8 A. I'm not really clear in my mind in terms of how many 9 visits I knew about but I think in the beginning, when 10 I'd done the report to the Procurator Fiscal around the 11 time shortly after the identification of the print and 12 coming back from working in the other investigation, my 13 perception was maybe that there was one visit to do the 14 locks, you know, to do the lock examination. But I 15 think as time progresses what I saw on there now there 16 was a realisation that perhaps there were more visits to 17 the house. That's all it means. 18 Q. Might that have been in relation to a visit to pick up 19 and return the visitors' log, if I can call it that, to 20 the locus? 21 A. Yes, it may only mean that. 22 Q. I think towards the end of April 1997 you became aware 23 that DC McKie had not received or said she had not 24 received a precognition letter. 25 A. Yes. page 76 1 Q. Can you explain for those who may not understand just 2 what the system was for defence lawyers getting 3 precognitions from police officers? 4 A. In terms of fairness and access to the evidence, 5 et cetera, et cetera, the defence would be given an 6 opportunity to ask questions, take a statement from 7 witnesses in the case. So a precognition, that is the 8 process of the defence getting access to witnesses and 9 going over the evidence and speaking with the witness. 10 Q. How would police officers usually learn that somebody 11 from a defence solicitor's firm wanted to speak with 12 them? 13 A. There would normally about a letter come in requesting 14 that and perhaps that would be through a form of 15 administration system and the officer would be notified. 16 Q. What did you do when you learned that Ms McKie seemed 17 not to have received the letter requesting her to give a 18 statement to Mr Asbury's solicitors? 19 A. Do you mind -- can you refer me to the page? 20 Q. Of course. It is my fault, Mr Heath. It is at page 69, 21 paragraph 317? 22 A. I think in fairness we need to go back to the original 23 if you give me a second. 24 Q. We are looking at 1st April -- 25 A. Yes, 1st April. page 77 1 Q. Which you will find at page 66 of your statement? 2 A. If you don't mind if we refer -- 3 Q. Indeed, Mr Heath, tell the Inquiry about it as you wish 4 in this respect. 5 A. I had been away working on a fairly serious 6 investigation for a period of time and had returned and 7 John Malcolm had handed me a precognition letter 8 requesting me to precognosce DC Cardwell and I have to 9 say I found that a bit unusual. 10 Q. Why was that? 11 A. Well, normally there was a gap of time in terms of the 12 notification to the defence but I hadn't been 13 responsible for the absence management of DC Cardwell. 14 Giving someone a document like that might have created 15 pressure on him and I didn't know what the situation was 16 and there was liaison going on, clear liaison going on 17 between, I think, the Deputy Divisional Commander and 18 DC Cardwell. So I'm back after four weeks, I'm handed 19 that to do, I'm not quite sure. 20 So in terms of that day, I phoned John McMenemy and 21 went to the Deputy Divisional Commander and explained 22 the situation to him and said I felt that it would be 23 better if it was done through the proper channels which 24 existed while I was away. 25 Q. And do you know what, if anything, followed from that? page 78 1 A. No, I don't know. I only know now that we go to 2 30th April. 3 Q. At that stage you learned that, for whatever reason, the 4 message may not have got through? 5 A. Yes, as far as I was concerned, I wanted to make sure 6 that precognition request got to DC Cardwell and the 7 best way to do that was to go and see the Deputy 8 Divisional Commander. I'm not sure quite why Detective 9 Superintendent Malcolm hadn't done that but he may have 10 had very good reasons. 11 Q. But in any event I'm interested in knowing about what 12 you decided to do and why you decided to do it when you 13 learned that the message hasn't got through? 14 A. On the 30th? 15 Q. On 30th, yes. 16 A. The Divisional Commander said to me that DC Cardwell had 17 denied receiving the precognition letter and he asked me 18 to arrange it to be delivered. So by now that's four 19 weeks on from the last time and my view is they should 20 have been done. If we go back to the report I did and 21 putting the audit trail on the HOLMES system way back 22 when the fingerprint was first identified, my view was 23 clear that this was a serious issue. It needed to be 24 audited and recorded. I put it in the HOLMES system, I 25 did a report, I wanted the Fiscal to know, when I came page 79 1 back from working abroad I went to see the Fiscals to 2 let them know the situation that had occurred. 3 Now I had been working away, I came back and on 4 1st April was asked to do this so I'm thinking about the 5 timescales there and now on the 30th I'm learning that 6 the defence still don't seem to have the precognition or 7 knowledge of what the precognition was about. 8 Q. Just to be absolutely clear about this, what was it you 9 thought the defence should know that they didn't know? 10 A. Well, I felt it should have been very clear to 11 the defence there was a dispute over a fingerprint in 12 terms of fairness to an accused person and in terms of 13 work done earlier to make sure it was properly recorded. 14 I thought it was very important that the defence knew 15 this. 16 Q. You mention that you called a Mr Dunlop at Mackintosh & 17 Wylie. I think the Inquiry have heard from other 18 sources he was called Ross Dunlop, but he was somebody 19 working within Mr Asbury's defence solicitors at the 20 time. What, to the best of your recollection, did you 21 say to Ross Dunlop? 22 A. I can't really remember. I think I made a comment to 23 the fact it was of interest to undertake this 24 precognition and could he fax the precognition letter to 25 me and I would ensure it was delivered to DC Cardwell. page 80 1 Q. Did you say anything to him about why it was in their 2 interests that they should take care to precognosce 3 Miss Cardwell? 4 A. I'm not exactly sure. I think the general thrust of 5 what I was trying to do was to make sure that very soon 6 the defence had the ability to precognosce DC Cardwell, 7 that she had something they needed to know. I don't 8 know the exact words, it was 12 years ago and I didn't 9 write any words down. 10 Q. Mr Heath, there's, I think, one more matter that I would 11 like to ask you about and you record at paragraph 320 of 12 your statement. 13 A. Sorry. 14 Q. 320, sorry, at page 70, about your attendance at the 15 trial of David Asbury. 16 A. Yes. 17 Q. And about you're making arrangements to have DC McKie 18 brought to court in a particular manner. 19 A. Yes. 20 Q. Can you explain to the Inquiry why you did that? 21 A. I arrived at the High Court and there was a reporter 22 there from, I think, the Daily Record who approached me 23 and said he knew the full circumstances, they had 24 photographers there and they'd approached the 25 Police Federation for a story. So this is one of my -- page 81 1 still one of my officers, as far as I'm concerned, going 2 to give evidence at the trial. So, as it says there, I 3 contacted the Deputy Divisional Commander to try and 4 ensure that she got to the court without that intrusion. 5 Q. Thank you for that explanation, Mr Heath. 6 There is one perhaps, I suppose, housekeeping matter I 7 would like to give you the opportunity to clarify 8 because it's simply about the way that your statement 9 came to be prepared. I think you'd raised with the 10 Inquiry team that some parts of it were in different 11 fonts from another and the concern you had about how 12 that might be perceived. 13 Your statement was provided to you, I think, in 14 electronic form and you were able to revise it in that 15 way and as a result some parts came to be in different 16 fonts but we can take it, I think, from reading it those 17 fonts are not meant to indicate any particular emphasis 18 they are simply a result of the electronic process? 19 A. Yes. Any statement I've submitted I try to make it a 20 professional finish. There were logistical difficulties 21 in this (so different fonts and boldness in letters) 22 because, not to get into too much detail, but in 23 checking of the statement and everything else I tried to 24 put, for example, in bold any alterations I made so the 25 Inquiry would know and then in the final transcript page 82 1 because there was an urgency to get the statement here 2 on time clearly I missed some pieces, et cetera. So all 3 I would like to say is that it's not necessarily the 4 final document I had hoped that it would be and asked 5 for changes that was all. 6 Q. I simply wanted to give you the opportunity to clarify 7 that. 8 A. Thank you. 9 MISS CARMICHAEL: I don't have any further questions for you 10 presently. 11 THE CHAIRMAN: What I was going to suggest is we should stop 12 now until 1.50 and it would give an opportunity, if 13 anyone has questions that they would feel that have not 14 been developed, that Counsel to the Inquiry can consider 15 whether she should ask them or whether you should be 16 allowed to apply for leave to do so. We have gone 17 through the procedure but I think just now that we have 18 a gap it might be an opportunity, if anyone wishes to 19 take the opportunity, as I said, to speak to 20 Miss Carmichael. But otherwise that will be the end of 21 your examination. 22 So we will return again at 1.50, please. 23 (12.53 pm) 24 (Luncheon Adjournment) 25 (1.55 pm) page 83 1 THE CHAIRMAN: Are there any further questions you want to 2 ask? 3 MISS CARMICHAEL: A number of questions have been raised and 4 there are two I would wish to ask. 5 THE CHAIRMAN: Certainly. 6 MISS CARMICHAEL: Mr Heath, there came a point after, I 7 think, about 14th February when Ms McKie was no longer 8 involved in the investigation. 9 Do you recall whether your colleague, DS Shields, 10 came to you to ask if she could be allowed to continue 11 on the investigation? 12 A. After 14th ...? 13 Q. At the stage when she was to be removed from the inquiry 14 and returned to duties of just a major investigation? 15 A. Early on in the stages of the investigation. 16 Q. Indeed, yes? 17 A. Yes, there may have been a time. I don't recall it 18 clearly but he may have asked. 19 Q. Would it be normal for officers to wish to be on the 20 inquiry rather than perhaps going back to, I think they 21 called them book duties, just the normal duties of a CID 22 officer? 23 A. Some officers like that type of work and it is good 24 experience for officers, yes. 25 Q. Is there any particular reason why somebody's page 84 1 supervising sergeant would make a request of that sort 2 rather than the person themselves making the request? 3 A. I'm not sure. I think the situation was unusual in that 4 Miss Cardwell, as she was then, had been working on a 5 secondment duty delivering appraisal training; in other 6 words, she had actually been working within the CID for 7 a period of time. So I think this was round the festive 8 season break when the appraisal training wasn't being 9 delivered. Therefore, she had ended up working on the 10 investigation. So it may well have been that maybe she 11 wanted -- whether she was to come and ask me herself, I 12 really can't conjecture on that and I only have a vague 13 recollection of whether he came and asked me. 14 Q. The other matter is really one where I suspect at least 15 some may be left with a degree of lack of clarity 16 perhaps because of the questions that I asked you 17 earlier. 18 You mentioned going along to meetings at SCRO with a 19 view to saying thank you for the work that was being 20 done. Can I just be quite clear whether, when you refer 21 to that, those were things that took place before or 22 after the dispute arose about Y7? 23 A. I mean, I'm certainly not thanking anyone for -- what 24 I'm saying is maybe the focus of the word "thank you" is 25 wrong. I think it's a good management technique when page 85 1 people are working really hard for you constantly and 2 have other competing demands that you give 3 encouragement. So it was encouragement. After -- I 4 can't remember if there were any meetings after with 5 SCRO. I don't think ... 6 Q. I think you had referred to going to visit them on 7 13th February. 8 A. Yes. 9 Q. I think that's what you referred to as the courtesy 10 call? 11 A. Yes. No, I certainly wasn't going to say thanks very 12 much for identifying Shirley Cardwell's fingerprint. I 13 was going for reassurance and I wanted to be in a very 14 clear position on exactly what I was saying at that time 15 and to be fair to everybody. 16 MISS CARMICHAEL: If I might have a moment, sir? 17 THE CHAIRMAN: Yes. 18 MISS CARMICHAEL: It may be that there are others who wish 19 to raise matters with you, sir, at this stage. 20 THE CHAIRMAN: I think Mr Vaughan should have the last word 21 if he wants to ask any questions. 22 Mr Holmes, have you any request to ask a question? 23 MR HOLMES: No thank you, sir. 24 THE CHAIRMAN: Mr Smith? 25 MR SMITH: Yes, I do have a request to ask certain page 86 1 questions. I may say due to time constraints I have 2 tried to explain to Counsel to the Inquiry precisely 3 what it was that I wanted to ask. Unfortunately, we 4 weren't able to discuss it in great detail prior to 5 coming in here and I am sure it's understood that -- 6 THE CHAIRMAN: I think if you tell me what it is you want to 7 ask. 8 MR SMITH: I'm not sure how much detail, sir, you want me to 9 go into. 10 THE CHAIRMAN: I want to know the subject matter you want to 11 ask about. 12 MR SMITH: May I say, sir, that some of these matters were 13 touched on by Counsel to the Inquiry but we feel on this 14 side perhaps they could have been explored in a little 15 more detail. Principally, what we are concerned about 16 is an impression, maybe one that's legitimate having 17 regard to the fact that fingerprints were of vital 18 importance to this particular investigation, that for 19 certain reasons and information we have perhaps 20 justified reasons it may be thought that there was a 21 drive towards the position that David Asbury was the 22 only focus of attention. In particular, there is 23 certain information available on the various bits of 24 documentation provided to us that there were at least 25 three other suspects in respect of the murder inquiry. page 87 1 From the documentation we have seen we don't know 2 what happened to the investigation relating to these 3 three suspects and in particular whether they were 4 disclosed to the defence of David Asbury, which if they 5 weren't and were excluded properly tend to support the 6 view that there was a drive -- 7 THE CHAIRMAN: Does that not turn on the trial of Mr Asbury 8 which I am not concerning with rather than the 9 fingerprints in that case? 10 MR SMITH: No, sir, for the second point we wish to make is 11 that, against that background, our position is that the 12 denial of Y7 by Shirley McKie what we would be 13 suggesting was one that caused great difficulty to that 14 particular investigation against David Asbury and for 15 that reason one might have the impression from the 16 evidence heard thus far that Mr Heath's position was 17 almost entirely neutral. One understands what he was 18 doing, what his job was, but entirely neutral about the 19 position of Shirley McKie. 20 We say that -- 21 THE CHAIRMAN: I think I understand the line and I will 22 certainly permit you to ask questions about that. 23 MR SMITH: I am obliged, sir. I can give an assurance I 24 will not stray -- do you wish me to commence just now? 25 THE CHAIRMAN: Is there anything else you wish to ask about? page 88 1 MR SMITH: I am sorry there are one or two other questions 2 about integrity of the locus and I think in fairness to 3 Mr Heath I should be in a position to put to him some of 4 the detail of the other persons understand were present 5 in the living room, the police officers in question, so 6 he understands the importance of it and he can perhaps 7 provide a comment as to where he sees that. 8 I may say, of course, questioning the integrity of 9 the locus in an important one in the identification of 10 Y7. 11 THE CHAIRMAN: I will allow you to ask those questions. 12 MR SMITH: I am obliged, sir. 13 Cross-examination by MR SMITH 14 Q. Mr Heath, I think you explained earlier how important 15 fingerprints were to the Inquiry and, in particular, the 16 allegations against David Asbury. 17 A. Yes. 18 Q. What I am going to ask you is this: you explained 19 earlier in your evidence that the defence would clearly 20 have a right to know about the dispute on fingerprint Y7 21 because of the importance of fingerprints in the 22 investigation. That's right, is it not? 23 A. Yes. 24 Q. And I take it you would be aware of the importance of 25 disclosing to the defence any matter which may assist in page 89 1 their investigation should they wish to carry them out, 2 which might point to the existence of an individual. 3 Were you aware of that? 4 A. Yes, I think that disclosure issue is impressed upon us 5 to report matters to the Crown. 6 Q. I appreciate there are certain documents made available 7 to us in the course of this Inquiry and I would like to 8 ask you about this, perhaps if I start with the easier 9 ones from my point of view. It's correct to say, is it 10 not, there is a man named Patrick Doherty who was, at 11 one stage, a suspect in the case? 12 A. Yes. I think we have to be very careful here in terms 13 of what you and I feel is a suspect. For me, trace, 14 interview and eliminate -- and this is a subject of much 15 debate with senior investigating officers -- trace, 16 interview, eliminate for me means that someone who is of 17 interest to the investigation is designated trace, 18 interview and eliminate and, therefore, requires fairly 19 exhaustive work to either take them out of the Inquiry 20 or take them into the inquiry as best you can. For me 21 the term "suspect" perhaps goes beyond that stage where, 22 for example, you are requesting a warrant to search 23 their home or your approach to the whole thing is a 24 slightly higher level than that. 25 I've been involved in the compilation of the most page 90 1 recent murder manual a couple of years ago and this 2 isn't just me making this point, there should be a 3 distinction between what's a trace, interview and 4 eliminate and between what is a suspect. 5 So maybe, if you don't mind moving on to Patrick 6 Doherty, my recollection in terms of him becoming a 7 suspect I think related to information which may have 8 come to me -- I'm not quite sure how the 9 information ... my recollection's not good on that and 10 while I had access to any of the HOLMES documents, and I 11 think it was anecdotal from a source who said that he 12 had been saying he'd been involved in the incident. So 13 I think we have to really be very clear in terms of what 14 the information was about him being a suspect. 15 Q. I follow that the distinction you are drawing but can I 16 take it that you are aware that Patrick Doherty was 17 subsequently convicted of the murder of a lady -- 18 A. Yes, I am -- 19 THE CHAIRMAN: I am not sure this is relevant to this 20 Inquiry. 21 MR SMITH: I am happy to move on from that point, sir, if I 22 can. 23 Perhaps I can ask this and no doubt if the Chairman 24 feels I shouldn't be asking it, as far as Mr Doherty is 25 concerned you say he is excluded from the inquiries; is page 91 1 that right? 2 A. What I'm saying is and I think it's fairly important to 3 make this point, I've read so many things about the 4 investigation of the murder of Marion Ross and I've 5 never, ever had an opportunity to speak on behalf of the 6 Inquiry team and this is that opportunity. So I think 7 what I'd like to say is that the investigation was 8 meticulous and that after the arrest of David Asbury it 9 is clear if you go and look at the HOLMES notes, my 10 policy file and decisions made, and briefing notes, that 11 I was very specific that I wasn't reducing the size of 12 the Inquiry team, I wasn't stopping any items being 13 examined at the lab, I was continuing to try and have 14 all fingerprints eliminated and, in particular, I 15 specified all TIEs require to be eliminated. 16 So I think in answer to your question, sir, what I'm 17 saying is that that inquiry went on for weeks after that 18 with over 400 or 500 actions, perhaps 200 or so to my 19 recollection not direct related to Mr Asbury with a view 20 to excluding any other possibilities, with the view to 21 exhausting all of the actions and all of the inquiries 22 that have been raised. 23 So in terms of Patrick Doherty although I wasn't 24 perhaps involved in the groundwork that was done to TIE 25 him, my understanding is that that TIE in terms of his page 92 1 alibi and where he was and was there any connection to 2 the crime was fully bottomed out by the inquiry team. 3 Further to that, my understanding is that recently 4 because of certain media articles that our investigation 5 of Patrick Doherty was reinvestigated by Strathclyde 6 Police at a higher level and would reaffirm what I just 7 said about that. Sorry, sir, but the only other suspect 8 who would class as a suspect was -- 9 THE CHAIRMAN: I think really all I need to know is that 10 there were other suspects and that your inquiry dealt 11 with those. 12 A. Okay, my Lord. 13 MR SMITH: Just following from that the only question I have 14 is I take it you disclosed that to the Procurator Fiscal 15 department or somebody similar. 16 A. Our position 12 years ago in terms of what you call 17 disclosure is I have an office manager and I think the 18 office manager was Jim Thompson. Everything the HOLMES 19 is audit trailed so everything is in there, every 20 suspect, every statement taken and normal policy was to 21 send everything, lock, stock and barrel to the 22 Procurator Fiscal's office where it would be 23 precognosced. 24 Could I say specifically that Jim Thompson did that? 25 I'm not sure, but that was normal practice at that time. page 93 1 Q. Can I move on to the question of the position of Shirley 2 McKie. Obviously her saying "I wasn't in the locus, in 3 the house itself", meant that there was a potential 4 problem with the case against David Asbury. 5 A. Yes. 6 Q. You mentioned that the precognition request letter came 7 in and you said it was unusual. 8 Can you help me with this: is it unusual that it was 9 brought from a higher level or unusual to be requested 10 at all? What was unusual about it? 11 A. What I was saying was, first of all, I'd been away 12 working for four weeks on a very serious matter so I 13 wasn't in the Division as such. Other people should -- 14 the Deputy Divisional Commander had been dealing with 15 Shirley Cardwell's absence management. It wasn't 16 necessarily for me to go back handing the document and 17 saying go and precognosce Shirley Cardwell. That is 18 what I found unusual. I fulfilled my duty to the Crown, 19 to David Asbury, to everybody in the report saying this 20 is an issue way back. So unusual meant why was it being 21 handed to me to deal with this returning after all that 22 time. 23 Q. The question of Shirley McKie's reaction to it I think 24 you said in your precognition that you felt she was 25 protesting too much. I think your explanation for using page 94 1 that phrase was you felt she was inappropriately making 2 it public within the office, that she was denying it. 3 Have I understood that correctly? 4 A. I recall in my head sitting at my desk after having said 5 to go to try and resolve the matter of whatever and then 6 I hear a commotion which is clearly related to that. 7 I'm not physically seeing who's there as such but I 8 think I recognised the voice or knew it was related to 9 that. I don't know who else is in the office. I don't 10 know, for example, that there are interview rooms to 11 that area just outside where there may even have been 12 suspects or members of the public. So my concern is can 13 we go into an office and maybe that can be ... you know, 14 this is the thought in my head. That's what I was 15 trying to explain. 16 Q. It may just be me but if I was to say that someone was 17 protesting too much it maybe conveys they were falsely 18 denying something? 19 A. No, I really don't want to convey that. What I'm 20 conveying is my concerns that I'd rather it all be in 21 private in a room out the road somewhere. 22 Q. I think you said earlier too that you wanted it 23 resolved; that was the phrase you used. Can I ask how 24 was it you anticipated it could be resolved that she was 25 denying that she was in the house and left the mark Y7? page 95 1 A. I think -- I'm sorry, but with respect, I think, one has 2 a PhD in retrospect and dissecting a sentence from 3 12 years ago. When I say that I don't mean to be pushy 4 on that. When I say "resolve", I just mean, "Alex, can 5 you go and try and sort this out and find out what the 6 position is". It's as simple as that. So in the 7 phraseology I don't mean, "Go and force a confession out 8 of someone to say they were in the house, please". 9 It's, "Please, can you try and sort this out". That's 10 what I mean. 11 Q. You see, I'm wondering what the general attitude in the 12 office was because are you aware that senior officer 13 Cameron went round to her house when she was off her 14 work and she -- sorry, McDonald went round to Shirley 15 McKie's home with flowers and chocolates and wine and 16 said to her, "Listen, why don't you just say you were in 17 the house and this will all go away". 18 Is that something you were aware of? 19 A. I've read that somewhere and I can't place where I read 20 it. So I am aware of it but I think I'm aware as well 21 that Karen McDonald's account of that somewhere I've 22 read is that the issue was raised more by Shirley McKie 23 than her. I think on that matter I don't want to answer 24 matters that I'm not involved in or I maybe heard about. 25 Maybe it's better if you call Karen MacDonald and ask page 96 1 her these questions. 2 THE CHAIRMAN: What you are really being asked is were you 3 aware at the time, in other words did you give 4 instruction that -- 5 A. No, with flowers -- the absence management was being 6 managed from elsewhere as far as I'm aware. Karen 7 MacDonald's a mature responsible person and a detective 8 inspector so ... 9 MR SMITH: On a slightly different point, you're aware I'm 10 sure you are aware there have been suggestions made that 11 Shirley McKie was in the house and that she was there -- 12 I am going to put it as general as I can -- for some 13 sexual purpose. You are aware of that? 14 A. I've seen the columns and that. 15 Q. I am going to put something very specific to you: have 16 you ever on any occasion made a remark like that to any 17 member of the press and conveyed such information? 18 A. No, not to my recollection and I've tried to distance 19 myself from that, particularly recently in the last few 20 years from that. I don't think that's helpful at all. 21 Q. Your response there was not to your recollection. One 22 presumes you would remember if you had said something 23 like that, wouldn't you? 24 A. Well, maybe someone from the press has phoned up saying, 25 "I've heard this, what do you think", and for me that's page 97 1 just innuendo. It's not based on anything. So to my 2 recollection you were asking me a question. I'm saying. 3 No, I haven't, to my recollection. 4 Q. Might you have done? 5 A. No, I doubt that very much, no. I think maybe there was 6 a lot of press interest, there were questions being 7 asked everywhere, you know, maybe someone's phoned up 8 and said something about that but, no, I haven't. My 9 recollection is I haven't ever done that. 10 Q. Do you know a journalist named Marcello Mega? 11 MISS CARMICHAEL: Please don't answer that question at the 12 moment, Mr Heath. 13 Sir, I'm sorry to interrupt in the course of my 14 learned friend's examination but this was not, as I 15 understood it, a matter canvassed in the application to 16 you to examine this witness and I raise this for that 17 procedural reason. 18 THE CHAIRMAN: I think on this issue alone really the 19 question which I am interested in, did the suggestion 20 ever come from you -- 21 A. No, sir, it did not. I recall it flying about and 22 canteen talk and tittle-tattle. 23 THE CHAIRMAN: But I want to know whether you were the 24 author of that suggestion on any occasion. 25 A. No, sir. Not to my recollection but I'm quite ... I'm page 98 1 quite certain on that. It's just I'm being asked 2 something that was flying about in the aether. 3 THE CHAIRMAN: But you understand really what you are being 4 asked is that you were a person who made the suggestion. 5 A. No, sir. I heard that from third parties in office 6 gossip and, no, I did not, sir. 7 THE CHAIRMAN: Yes. I think you can move on now. 8 MR SMITH: Thank you, sir. 9 The impression that one might have from your 10 evidence, as I say, is that you really had no difficulty 11 with Shirley McKie as a person, or Shirley Cardwell as 12 she then was, she was just one of the team, someone you 13 worked with. I think it's fair to say that you were 14 asked previously about the time of the civil case 15 against the Executive to give a statement to the 16 Scottish Executive. 17 I'd like you to look in a document, please, just for 18 your comment to see whether it is something you recall 19 saying or not as the case may be. Can I ask you to 20 look, please, at a document SG0207. I think what this 21 bears to be, as we can see from the top, is a statement 22 taken in person by -- 23 MR VAUGHAN: Mr Chairman, I'm sorry, I think it's very 24 important. This is not a statement. 25 THE CHAIRMAN: No, it is taken -- page 99 1 MR SMITH: It's a precognition. 2 MR VAUGHAN: I am sorry to interrupt. 3 MR SMITH: I am happy to correct that. 4 THE CHAIRMAN: Thank you. We are familiar now with what a 5 precognition is as opposed to a statement. This is 6 attributed to the witness, is it? 7 MR SMITH: Yes. 8 I would just like to ask you about this: do you 9 recall Iain Macgillivray or someone from the Scottish 10 Executive speaking to you in November 2005? 11 A. Yes. 12 Q. I think what we can see in this typed document, in this 13 precognition, is that it gives an explanation of who you 14 are and what you were in the first three paragraphs and 15 then we can see a paragraph at the bottom over the page 16 that commences: 17 "I've been asked what my view is of Shirley McKie's 18 abilities and potential as a police officer when I 19 worked with her. I was aware of her burning ambition 20 when I started in my role at Ayrshire and [it says] this 21 was conveyed to me by ... colleagues", and so on and so 22 forth. 23 Do you remember saying anything like that? 24 A. Just vaguely but I don't necessarily remember the phrase 25 "burning ambition". I think ambitious was more -- I page 100 1 don't remember the specific phrase "burning ambition". 2 Q. Is that something that you, sitting here now, you tend 3 to go along with? 4 A. What was conveyed to me mainly from other supervisors 5 was she was ambitious, keen to progress in the service 6 and move on quickly. I think that was the handle of the 7 conversation with Bob Lauder and maybe comments from 8 somewhere from other supervisors. I think it's 9 important to say at this stage that in Shirley McKie's 10 last appraisal, which I did, Shirley McKie had been 11 working in the role of appraisal trainer, as I mentioned 12 earlier, and I spent a long time in terms of a 13 counselling session with her and my impression was that 14 she was perhaps a bit overambitious during that 15 appraisal time. 16 Q. Can I ask you to skip to the second page of this 17 precognition and I'm interested in the paragraph about 18 the middle of the page. You see it says, "I reckon at 19 the time", and what it says: 20 "I reckon at the time of the 1996 appraisal there 21 would be at least another two or three years before she 22 was ready to be considered for promotion to sergeant." 23 I am not interested in that but reading on: 24 "She was someone who came across as being highly 25 nervous and a bit of an air of a victim about her. She page 101 1 would need to get rid of that before she had a realistic 2 chance of being promoted." 3 Do you recall saying anything like that to 4 Mr Macgillivray? 5 A. Yes, I vaguely recall along those lines because in that 6 long counselling session there were things conveyed in 7 terms of others were being promoted and moved on and she 8 wasn't and that sometimes her disposition was a bit 9 nervous, I felt, in terms of the confidence that was 10 needed in a police officer or a detective. 11 Q. Can I -- 12 THE CHAIRMAN: Can I just ask, if this is convenient, was 13 this in the context of the claim that she brought, 14 Ms McKie had brought, that you were being asked for your 15 opinion as to what her career pattern might have been 16 had she remained in the service? 17 A. Yes, my Lord. 18 THE CHAIRMAN: That was the context in which you were being 19 asked. 20 A. Yes, my Lord. 21 MR SMITH: Thank you, sir. 22 Can I ask you to go on to the following page, the 23 third page of this precognition and, again, in the 24 paragraph in the middle of the page. You see what is 25 said here is: page 102 1 "The fingerprint that she left when she was a 2 productions officer in the baby case does not appear to 3 have harmed her career since it was not referred to in 4 her personnel file appraisals for that time. Bob Lauder 5 did mention that (...read to the word...) to discuss the 6 handover of his job to me." 7 You see that and do you recall saying anything like 8 that to the gentleman who took your statement? 9 A. That's clearly an error because the first time I heard 10 about the fingerprint in the baby incident and it was 11 only when I worked with Bob Lauder after that that he 12 mentioned that to me. So that's incorrect. 13 Q. So what it says here are you saying that -- when you say 14 it's an error by the gentleman who picked you up wrong 15 or are you saying you, maybe when you were talking to 16 him, had made a mistake when you were talking to him at 17 that time? 18 A. I think that's an error of recollection to me from me. 19 Q. I follow. Now can I ask you to go on to the last page 20 of the statement, please. I just want to ask you again 21 about the paragraph it's just about the middle of the 22 page and I'm interested in the first sentence: 23 "(...read to the word...) resulted in being released 24 on appeal." 25 I'm not sure how one can read that, but have you ever page 103 1 been of the view that you were furious that Mr Asbury 2 was released on appeal? 3 A. Where is that sorry? 4 Q. I am sorry, it's my mistake. It is being highlighted 5 for you just now. Do you see the first sentence there? 6 It doesn't read very easily. 7 THE CHAIRMAN: Again, is this really relevant to my task in 8 this Inquiry? I don't think I want to know your opinion 9 about that. 10 MR SMITH: I am happy to move on, sir. 11 A. My Lord, if I might comment -- 12 THE CHAIRMAN: I think I am really asking you not to say 13 anything about your views about Mr Asbury's release. 14 MR SMITH: I have finished with this document, thank you. 15 I would like to go on and ask you some questions 16 about the integrity of the locus. 17 A. Yes. 18 Q. I think Counsel for the Inquiry put a couple of things 19 to you about whether some police officers had actually 20 been in the living room within the locus and I'd like to 21 put a little more detail of that to you, if I can. You 22 have explained that from very early stages, almost 23 immediately you came into it, this is a crime scene 24 rather than a suicide? 25 A. I viewed it overall as a suspicious death; therefore, page 104 1 that takes it to the level that you would deal with a 2 crime scene. 3 Q. In fairness to you the suggestion of suicide may have 4 come from the pathologist? 5 A. I think from the pathologist and also the relative who 6 was there also indicated that. 7 Q. Yes, I follow. But it became fairly clear fairly 8 quickly I think that this was, in fact, a murder 9 Inquiry; that's right, isn't it? 10 A. I mean, suspicious death I would stay with because I 11 have seen, you know, as I've said earlier in all 12 different circumstances where I've had no doubt we're on 13 a murder Inquiry and the next day I have been told 14 hypothermia. So if we say suspicious death until 15 confirmed by post-mortem. 16 Q. Being a suspicious death would require the locus be 17 properly protected and only those who should be, had to 18 be in, should be in the area of sensitivity? 19 A. Yes. 20 Q. I would like to ask you this: will you take it from me 21 these are precognitions that have been produced by us to 22 the Inquiry team but let us take it as a presumption for 23 a moment that they are reasonably accurate. We can no 24 doubt call the witnesses if they have to be called. 25 I want to read you something from a precognition from page 105 1 a Constable Lynn Nicol. 2 You may not remember names but that is one that you 3 recall? 4 A. It's not a name I recall. 5 Q. What Constable Nicol appears to have said is this 6 amongst other things: 7 "On arrival at the locus we relieved the late shift 8 personnel. My colleague, Constable Hutchison, and I had 9 been issued with protective clothing, we were dressed 10 accordingly and entered the house and (...read to the 11 word...) to the front living room. At that time we had 12 been instructed to remain in the living room and not to 13 move around the house." 14 That is one police officer who appears to think that 15 she is instructed perhaps to go into the living room and 16 certainly not to avoid the living room? 17 A. What time is this? Do you know what time this is? 18 Q. This was on 8th January, Wednesday 8th January, and she 19 says her duty was 11.00 pm until 7.00 am. 20 A. Right. 21 Q. Another officer, Margaret Baird, who says that she was 22 on a Thursday night in January reported for duty at 23 0700 hours so that's where she fits into the picture. 24 She says Constable Johnson and she arrived at the locus 25 to relieve notified shift colleagues, informed that page 106 1 permission had been received at that time for us to 2 remain in the living room but not to overall patrol the 3 remainder of the house and again we can see someone else 4 who seems to be in that position where she felt she 5 could go into the living room. 6 Constable Elaine Wyllie who appears to be on the 11.00 7 to 7.00 shift on 8th January and she also says that: 8 "The other officers who were present like myself were 9 permitted access to the living room of the house." 10 Now I take it you would agree with me that if there 11 were officers who were in the living room at various 12 times that would be something that would be a matter of 13 concern to you as the Senior Investigating Officer; 14 that's right, is it not? 15 A. Yes, it would be because when I leave I leave 16 instructions that the locus is to be secured. 17 Q. And the living room was an area of intense interest, was 18 it not, in the investigation? 19 A. Can you detail to me where that room was? I'm trying to 20 place in my head ... but anyway any room in the house 21 would have been of importance to the investigation. 22 Q. Certainly a downstairs room and my understanding -- I 23 stand to be corrected on this -- but my understanding 24 was the gift tag with print XF was found within that 25 room and I think you explained there were well over 200 page 107 1 fingerprints were looked at, many of which came from the 2 living room. 3 Of course, anyone in the living room may disturb or 4 possibly destroy or cover over all kinds of forensic 5 evidence, fibres, specks of blood, maybe smudged 6 fingerprints, et cetera, et cetera, et cetera. All 7 these things would be a matter of concern. That's 8 right, isn't it? 9 A. Yes, all I can say is I left instructions that the locus 10 was to be protected. 11 Q. If you can give me just one moment, please. 12 Again, we hear there is some information from Margaret 13 Baird and she was the lady who was there on 9th January, 14 Thursday 9th, 0700. She is in the second batch if I can 15 put it that way. If her position is Mr McAllister 16 arrived at the locus, he instructed that she and her 17 colleagues should leave the house and carry out duties 18 outside and not remain in the house. There is clearly a 19 suggestion there that Mr McAllister was aware 20 (inaudible) inside of the house, at least possibly in 21 the living room. 22 Did Mr McAllister convey to you at any stage that 23 police officers had been, as it were, guarding the locus 24 but in the living room? Did -- 25 A. What you are saying to me now is the first time that page 108 1 I've heard of that. 2 Q. You explained that as far as Gary Gray is concerned you 3 had never heard until really, I suppose, in the very 4 recent past about the suggestion that he may have had a 5 torn glove when he was engaged, I think, the operation 6 he was involved in was removing Miss Ross' body. You 7 were entirely unaware of that? 8 A. Just not in my recollection. Do I know anything about a 9 split glove from Gary Gray. I just can't comment. 10 Q. Again, I take it that I think the source of that 11 information is primarily from a Mr Moffat, Scenes of 12 Crime Officer, who, will you take it from me, has 13 indicated to the Inquiry that he saw the tear in the 14 glove, he saw Mr Gray with his hand in a position close 15 to where Y7 was found and he expressed concern about 16 that to Gary Gray and said he should report it so that 17 his fingerprint can be eliminated from the Inquiry. 18 I take it that is something you would have at least 19 hoped you would have been told about if that had 20 happened? 21 A. Well, in the locus and I communicated to him and he then 22 request the elimination of Gary Gray. That's been dealt 23 with as far as I'm concerned. If he chooses to tell me 24 he tells me but as long as I know it's been dealt with, 25 it's been dealt with. page 109 1 Q. I may be being unfair to you. It's really 2 Mr McAllister's the first line to sort that out. Only 3 if it becomes an issue does it come to you. Is that the 4 way -- 5 A. In terms of me and my role on the night and the question 6 of attendance we all went into that house fully suited 7 up with feet covered, hands covered and everything else 8 and treated it as suspicious as I would a murder and 9 when I left starting house-to-house enquiries and 10 beginning to take clothing from people. So for me 11 that's clear and DI McAllister's instructions were clear 12 that we were looking at suspicious death here and the 13 next day there's a post-mortem and I'm looking at 14 resources in the morning. So I have left these clear 15 instructions and I would hope he would implement it. 16 What you said to me just now, that's the first time I've 17 heard of these issues. 18 Q. I understand. Something I should have asked you a 19 little earlier is this: that, I think, maybe you 20 mentioned foot pads being put -- food plates maybe it 21 was -- 22 A. I think there were foot plates down but I can't remember 23 specifically. It would be good practice to put foot 24 plates down so that people's footprints are not being 25 left on the carpet. page 110 1 Q. And the reason I am asking is it shows the importance of 2 preserving the integrity of even feet are kept off after 3 being just at the entrance. That's the kind of thing 4 you can imagine. 5 A. Yes. 6 Q. I would like to deal with something else finally, I 7 think. It is to do with the question of the tin that we 8 have heard something about already. Clearly this was an 9 extremely important piece of evidence, wasn't it? 10 A. Yes. 11 Q. Because if the deceased's fingerprint was on it and it 12 was found in David Asbury's house, there would clearly 13 be something, to put it colloquially, a bit of 14 explaining to do about it. That's right. 15 Can I ask you this: apart from the fingerprint of the 16 deceased on that tin, can I ask you this: what was it 17 that, as it were, linked that to the deceased? 18 A. Nothing, as far as I'm aware, apart from the money that 19 was inside it which apparently has been taken out of the 20 evidence so I'm wary of what I can say now. The 21 contents of the tin, I think, also went to the house. 22 Q. Well, if I can just pick up on that and bear with me for 23 a moment, I think I am right in documents in various 24 places we can see that the suggestion is made that the 25 quantity of money is something that was of interest. Is page 111 1 that right? 2 A. Yes. 3 Q. But I think you are also aware, though perhaps not 4 involved in, investigations as to whether Mr Asbury 5 could have obtained the money from another source? 6 A. Yes, I wasn't involved in that investigation. To my 7 recollection Alex McAllister left a note which detailed 8 the investigation that had been done in regard to the 9 money. 10 Q. Very well. But, again, to be clear about it, as far as 11 you are aware, the fingerprint said to be of the 12 deceased was only on the tin, not on the notes, not 13 anywhere else? 14 A. No, as far as I'm aware it was only on the tin, yes. 15 Q. Finally, I would like to ask you about this: you recall 16 the piece of paper that was shown to you earlier that 17 had the words "ident required". 18 Do you remember looking at that? I can take you back 19 to it if you wish but what I wanted to ask you is this: 20 counsel to the Inquiry asked you a question as to what 21 your views were about that comment and you gave some 22 indication you were surprised about it. 23 Perhaps I should take you back to the reference. It 24 is on page 51 of today's notes at line 1, I think. I 25 don't know if that if I can just try to read out to you page 112 1 what was said page 51, line 1 of the evidence? 2 MR MOYNIHAN: Is it the document number or the transcript? 3 MR SMITH: It's the actual notes of the evidence of today. 4 Perhaps we can just have the document there while it is 5 being pulled up but if you give me one moment and I will 6 try to go back to the evidence that was given earlier. 7 I think if I can just read out to you what I think 8 you were asked and what your answer was, this is really 9 from page 50, the last line: 10 "On the basis of your experiences, Mr Heath, is this 11 a normal form of instruction from somebody in the 12 Identification Bureau or to the Scottish Criminal Record 13 Office", and your answer was: 14 "I wouldn't have thought so and on seeing that for 15 the first time I don't regard that as professional", and 16 you were asked the question, "Why do you say that", and 17 then your answer was: 18 "Because it's being far too specific again you are 19 asking me to comment on a document someone else has", 20 and so on. 21 Can I ask you the question again. You said you 22 don't regard it as professional. Can I ask you again 23 why is it that you say that? What do you mean as being 24 far too specific? 25 A. I'm interpreting someone else's comment first so I don't page 113 1 know what the person's really meaning when they say 2 that, but to a reader or on a screen for someone seeing 3 that in view of all the controversy over the last 4 12 years in relation to this, it looks like an ident is 5 needed in regard to the deceased but it's maybe just an 6 instruction to say, "Please, check against the 7 deceased", because I don't know the language this person 8 uses when they write things or maybe this is a way this 9 person normally fills in these forms. I think the 10 question is probably better posed to the person who 11 completed the form. 12 Q. I don't suppose you can help us with who may have 13 completed it, can you? 14 A. I thought somebody had said that. I thought the name 15 had been mentioned of the person who completed the form. 16 Q. I may have missed it but no doubt we can check. But you 17 yourself can't tell, for example, from the handwriting 18 who's that may be? 19 A. No, I can't. 20 Q. The last thing wanted to ask you now sitting here today, 21 Mr Heath, is I take it you would be prepared to accept 22 there's at least a reasonable doubt as to whether 23 Shirley McKie was, in fact, in that locus? 24 A. For me I don't think it's my position to offer opinions 25 on that but is there a reasonable doubt she was in the page 114 1 locus, yes, of course there is. 2 MR SMITH: Can I have just one moment? (Pause) 3 Thank you, sir. 4 THE CHAIRMAN: Miss Grahame? 5 MISS GRAHAME: I wish concern to be noted at this stage if I 6 may say something briefly about that? It relates to an 7 issue raised in cross-examination by Mr Smith. 8 THE CHAIRMAN: Yes. 9 MISS GRAHAME: Regarding the line which he pursued on 10 disclosure insofar as it relates to the proceedings 11 against Mr Asbury. I fully appreciate that Mr Asbury 12 may have a personal interest in whether disclosure was 13 made to COPFS regarding other suspects and what 14 information was provided but I would submit that that is 15 not an issue that the Inquiry should be spending time 16 exploring. It is not within the Terms of Reference, it 17 is irrelevant to issues which are in the Terms of 18 Reference and it is academic insofar as Mr Asbury is 19 concerned. 20 His appeal against conviction was successful and so 21 whether he had other grounds of appeal or complaint is 22 not an issue which concerns this Inquiry. 23 In any event, as my learned friend is well aware, 24 the position on disclosure in 1997 at the time of 25 Mr Asbury's trial was very different from the position page 115 1 today. Since 2005, the disclosure landscape in criminal 2 cases has changed significantly with the introduction of 3 new procedures and policy and so, again, there is no 4 real benefit in exploring the position on disclosure in 5 1997. 6 Finally, may I say that in preparing for this 7 Inquiry there has been no time spent by COPFS in 8 preparing a detailed response to any issue of disclosure 9 and what was disclosed to the defence at the time of 10 Mr Asbury's trial. We would not wish any implied 11 criticisms to be aired without having a full opportunity 12 to respond to that if they are allowed to be explored 13 further. Thank you. 14 THE CHAIRMAN: I don't regard it as part of my remit and I 15 accept your submission on that point. 16 Mr Macpherson, do you have leave that you wish to 17 seek to ask any question? 18 MR MACPHERSON: Thank you, sir. I do not wish to ask any 19 questions at this stage. 20 THE CHAIRMAN: Thank you. 21 Mr Vaughan, have you anything you wish to ask? 22 MR VAUGHAN: Yes, thank you for the opportunity. Just one 23 matter. 24 THE CHAIRMAN: Yes. 25 MR VAUGHAN: I appreciate, Mr Smith, you can only go so far page 116 1 with it but I would like to ask Mr Heath very briefly 2 whether as regards the other suspects just one -- 3 THE CHAIRMAN: I am not interested in other suspects. 4 MR VAUGHAN: But it is one general brief question to ask him 5 if he was satisfied with the elimination of those other 6 persons, including Doherty, based on -- 7 THE CHAIRMAN: The danger would be if he said he wasn't that 8 could cast doubts on other people who have not had an 9 opportunity to be charged and brought before the court 10 and have it decided. I think it could be seen as a 11 reflection if he took a particular view. 12 MR VAUGHAN: Can I put the question to you to decide whether 13 it should be asked or not? 14 THE CHAIRMAN: You tell me what the question is. 15 MR VAUGHAN: I was proposing to ask Mr Heath whether he was 16 satisfied with the elimination of Patrick Doherty and 17 other suspects from the Marion Ross murder Inquiry based 18 on enquiries made, regardless of subsequent comments in 19 the press. 20 THE CHAIRMAN: I think the problem about that, if I may say 21 so, is does it have a bearing on the fingerprints in the 22 case brought against Mr Asbury, because that is the 23 limit of my concern. I do not think it really -- 24 MR VAUGHAN: That is the question I was going to ask but -- 25 THE CHAIRMAN: I did not ask you, Mr Holmes, but I thought I page 117 1 did if you were seeking leave to ask. 2 MR HOLMES: You did, sir. 3 THE CHAIRMAN: I did. I thought so. Thank you. 4 Is there anything further, Ms Carmichael, that you 5 want to ask the witness before I just ask two matters? 6 MISS CARMICHAEL: If I may have one moment? 7 THE CHAIRMAN: I would just like your help on two short 8 matters. Well, the first is: from your experience, can 9 you tell me when police officers are asked to secure a 10 scene, what are they expected to do, stand outside the 11 premises or shut up inside? I have it in mind that this 12 is early January and perhaps not the most hospitable 13 place to be is in the street. Do they bring equipment 14 or a mobile office for them to wait in? What happens 15 normally, not necessarily in this case? 16 A. Normally, an instruction would be given that the locus 17 is secured so it depends on the locus, my Lord, but in 18 terms, for example, on this locus as long as they have 19 an eye on the entrance or exit or the exits are secured 20 so no-one can get in then they are securing that locus. 21 But invariably it is left to the direct supervisor to 22 put the arrangements in place from a welfare perspective 23 of how they do that and sometimes that's difficult. 24 In general terms it's often viewed as a very tedious 25 job to do. So sometimes when you're reviewing page 118 1 investigations you can often find that the protection of 2 a location hasn't been ideal because it's viewed as a 3 tedious job and invariably it's dependent on resourcing 4 issues on other demands of policing because you are 5 basically taking a police officer or two police officers 6 off the street. 7 THE CHAIRMAN: Human nature being what it is, I suppose, 8 people do look for the most comfortable place to stay 9 especially, as I say, at that time of year. 10 On a different topic altogether, and that is getting 11 back to fingerprints, one of the pieces of evidence 12 which you were following up was the mark on the gift 13 tag. 14 A. Yes. 15 THE CHAIRMAN: Once you would get the answer from the 16 Scottish Criminal Record Office that that was the 17 fingerprint of someone, I take it that would be 18 sufficient for you as long as the person was within your 19 area of interest, that would be sufficient with, as in 20 this case, some other circumstantial evidence for the 21 person to be arrested. 22 A. It would be sufficient for me to go to the Procurator 23 Fiscal, perhaps, for a warrant to search a house and 24 then go in front of a Sheriff and explain the 25 circumstances. page 119 1 THE CHAIRMAN: Yes. 2 A. In terms of arrest, at that time 12 years ago, this was 3 the distinction I was making between suspect and trace, 4 interview and eliminate. Something like that and in the 5 terms of this fingerprint identification I felt took 6 that person to the level of suspect, which meant that 7 the individual had certain rights. So we had to use 8 Section 14 of the Criminal Justice (Scotland) Act at 9 that time to detain that person. 10 Whereas, in lesser circumstances, for example, where 11 it's a third party saying that someone was involved in 12 the crime, you might not go as high as that in terms of 13 requesting warrants. It would be perhaps a more 14 informal approach, a voluntary attendance. 15 THE CHAIRMAN: What I was really interested in is when you 16 get the response from the Scottish Criminal Record 17 Office, as far as you would be concerned, I take it that 18 would be if they say, "That's the fingerprint of person 19 A", that would be accepted by you? 20 A. I think this is a strong point that I would like to make 21 as well. As far as I was aware the identification of a 22 fingerprint had never been wrong. It had never really 23 been questioned at all, my Lord. So I conduct the 24 orchestra. If the experts in the orchestra say to me 25 that that's that person's fingerprint or that's a page 120 1 firearm or that is cocaine, that is their evidence. 2 Any suggestion, and there have been, that that could 3 be influenced or in this particular case that that type 4 of thing is likely to occur to me is just ludicrous. 5 It's just not possible and when you look at all the work 6 that was done in that investigation, the logic of the 7 whole thing totally escapes me, these inferences and 8 allegations. 9 THE CHAIRMAN: The reason I am asking you about this is that 10 would be the normal form that you would accept what you 11 were told and you would not be qualified to question it. 12 When Ms McKie, it was said to be her fingerprint that 13 was questioned and it was questioned was it, because it 14 was a police officer who was strongly denying that it 15 was her fingerprint. 16 A. Yes. I think it might have affected her career; it 17 might have affected a member of my staff. I had to go 18 and just make sure in between the two days that my 19 position in terms of going forward from that was totally 20 secure. Plus the matter that no-one had really 21 questioned a fingerprint before so in terms of the 22 professional relationship, that's the other reason for 23 going and questioning. 24 THE CHAIRMAN: Really what I was coming to ask you was did 25 this cause you concern that maybe fingerprint evidence page 121 1 was not necessarily as accurate as you had expected or 2 assumed? 3 A. Well, it has now in the ensuing years and I think it has 4 many people because you have certain core beliefs in 5 terms of investigation that are drummed into you and one 6 of them is that fingerprint evidence is infallible, 7 no-one has the same fingerprint. But it's evidence of 8 opinion and opinions can differ. 9 So for me, yes, in the ensuing years it has led me to 10 question. 11 THE CHAIRMAN: I am really asking you to do the impossible 12 which is to go back 12 years ago and -- what I am really 13 trying to discover is did it cause you some concern that 14 if there had been some misfortune in the interpretation 15 of the mark of Y7 that this could reflect on the rest of 16 your Inquiry, namely the gift tag and in due course, of 17 course, the identification of the mark on the tin. 18 A. Oh, yes, of course it did because fingerprints were 19 being -- it was being questioned. But that fingerprint 20 was checked on how many occasions in that period of time 21 I don't know and it kept coming back as being identified 22 as belonging to Shirley McKie. So I had no doubt at 23 that time the identification had to be correct because 24 it was being checked, rechecked and rechecked again. 25 THE CHAIRMAN: So you have no reason to have concern about page 122 1 the accuracy of the information that you were given? 2 A. No, because the steps had been taken unusually to have 3 it verified, reverified, done again and I was aware of 4 another investigation and verified again, I believe 5 checked by so many different people. Therefore, how 6 could a mistake of that enormity, if it was a mistake, 7 be made with all of that work having been done. 8 THE CHAIRMAN: I take it that that rechecking not only you 9 took it as confirming what you had been told with regard 10 to Y7 but also as really giving you more confidence, 11 even more confidence, in the opinions that had been 12 given in relation to the other marks that you were 13 involved in your criminal investigation. 14 A. Yes, and not only that but also I had to assume in terms 15 of the fingerprints in the actual case which was under 16 investigation, the murder of Marion Ross, that they had 17 all been, you know, checked, rechecked, et cetera, 18 et cetera. I am not necessarily saying after the 19 investigation of Shirley McKie but surely that mentally 20 gives you -- 21 THE CHAIRMAN: That is the point I was -- 22 A. So it's not really raising pressure as such in terms of 23 the impact on the case because all of that work's gone 24 into checking and rechecking that print. 25 THE CHAIRMAN: Thank you very much and can I just thank you, page 123 1 for I know you have been put to great inconvenience both 2 coming on a long journey to make your statement and give 3 evidence today and I am grateful to you for your 4 assistance. Thank you very much indeed. 5 A. Thank you. 6 (The witness withdrew) 7 THE CHAIRMAN: 3.05. 8 (2.55 pm) 9 (A short break) 10 (3.05 pm) 11 MISS CARMICHAEL: Sir, the next witness is Kerr Reid. 12 KERR WILLIAM DIXON REID (sworn) 13 THE CHAIRMAN: Could I have your full name again just so it 14 can be recorded. 15 A. Kerr William Dixon Reid. 16 THE CHAIRMAN: Take a seat, please, Mr Reid. 17 Examined by MISS CARMICHAEL 18 Q. Mr Reid, I think, like other witnesses you have prepared 19 a written statement which you signed for the Inquiry. 20 A. Yes, I have. 21 Q. Your position is that that is a truthful record of your 22 position? 23 A. Yes, it is. 24 Q. Mr Reid, I think your background was as a serving police 25 officer for some time; is that correct? page 124 1 A. Yes, 30 years. 2 Q. When did you retire? 3 A. 2003. 4 Q. What is it that you do now? 5 A. I am a CCTV operator with the Crown Office, in actual 6 fact just to understand what I do when you're asking for 7 documents to put on the screen in a criminal case, that 8 is exactly what I do. I sit and work for the Procurator 9 Fiscal or the Crown Office. 10 Q. I have been asked to clarify this with you but is that 11 on a freelance basis or are you -- 12 A. No, I'm employed by the Crown Office on a casual basis. 13 Q. So you are called in as and when needed? 14 A. Yes. 15 Q. What I'd like to ask you about is a time when you were 16 on dock duty in the High Court in Paisley some time in 17 late 1999 or possibly 2000 you have told us. 18 I would like to ask you to put in your own words with 19 the Inquiry today really what you have already been 20 asked about in your statement and that is about contact 21 with someone who raised the topic of Shirley McKie. 22 Where were you and what were you doing when that 23 matter was raised? 24 A. It was the kitchen muster area for police officers who 25 are employed within the Court Service at Paisley. page 125 1 Q. Who was there? 2 A. I really couldn't say -- a number of police officers. 3 Q. What time of day was it, roughly? 4 A. I don't know -- it could have been first thing in the 5 morning or, more likely, lunchtime. 6 Q. At some point when the court wasn't sitting? 7 A. Yes. 8 Q. Now who raised the topic, Mr Reid? 9 A. Again, I can't remember who first mentioned the topic of 10 Shirley McKie. 11 Q. But something that was said stuck in your mind? 12 A. Yes. 13 Q. Who said that? 14 A. An officer from U Division who was there for a few days, 15 possibly a week. Those officers came to do dock duty on 16 a weekly basis and stayed for a week. I was permanently 17 at that time. 18 Q. Do you know what the officer's name was? 19 A. No. 20 Q. Was it a male officer or a female officer? 21 A. A male officer. 22 Q. Can you describe him, please? 23 A. No. 24 Q. Young, old? 25 A. No, he could have been under 30 and it's possible. page 126 1 Q. You simply can't help us with any description whatsoever 2 of this individual? 3 A. No. 4 Q. What did he say? 5 A. "My neighbour let her into the house. I think he had a 6 fancy for her." 7 Q. Did he tell you who this neighbour was? 8 A. No. 9 Q. What did you say? 10 A. I don't recall saying anything. 11 Q. Did you take any action after you had heard him say 12 this? 13 A. At that time, no. 14 Q. Because you would be aware at that time that there was 15 some controversy about the fingerprints connected with 16 Ms McKie's case? 17 A. Yes, I believe the topic may have been brought up 18 because of other things that were happening at that 19 particular time. I'm not sure but it may have been in 20 the public domain. 21 Q. You mean there was discussion in the police going on at 22 the time? 23 A. Possibly, yes. I can't think of any other reason why it 24 was brought up. 25 Q. Did you not think that was a matter of some importance page 127 1 at the time when you heard this individual telling you 2 that he knew who had let Shirley McKie in the house? 3 A. He didn't tell me, he told the assembled crowd, 4 assembled police officers. It wasn't me specifically he 5 told. 6 Q. Mr Reid, if I understood you correctly what you are 7 telling the Inquiry is that you had heard essentially a 8 very serious allegation that one police officer had let 9 another police officer into a crime scene and that that 10 matter clearly had not been publicly disclosed by that 11 stage, was that not something that disturbed you? 12 A. No. 13 Q. So you did not see fit to tell anybody else about it at 14 the time at all? 15 A. No. 16 Q. How did you come to speak to Les Brown about the matter? 17 A. Mr Brown and I have been colleagues and friends for many 18 years. We had lost touch but after I retired we came 19 back into contact and I was aware that he had started a 20 website search for justice and among other cases this 21 case was mentioned and I told him what the officer had 22 told me. 23 Q. Did you contact Mr Brown or did he contact you? 24 A. There was no contact. It was during possibly a social 25 event or a charitable event. page 128 1 Q. You said that the earliest you think your contact with 2 Mr Brown would have been, could have been 2003. 3 A. Yes, I believe it was after I retired from the police we 4 came back into contact again. 5 Q. I think Mr Brown's position is that he spoke with you in 6 2006 about this matter. 7 Can you help us with the date at all? 8 A. No. 9 Q. Mr Reid, Mr Brown's position is that what you told him 10 when you spoke to him about the matter was that the 11 officer who spoke to you told you that he, that officer, 12 was the individual who had let Ms McKie into the house? 13 A. I have never said that. 14 Q. In fact, what you reported to him was, "That bitch will 15 get us done; it was me that let her into the house"? 16 A. No, not at all. It has always been the person's 17 colleague or work colleague that I have said, a 18 neighbour, a neighbour in the context of the police as a 19 work colleague. 20 Q. Do you recall an occasion in 2007 when Mr Brown 21 telephoned you while he was with some senior police 22 officers? 23 A. Yes. 24 Q. Did he call you to see if you had any objection to your 25 identity being disclosed to the senior police officers? page 129 1 A. That's correct, yes. 2 Q. On that occasion Mr Brown says that you had changed your 3 story from the version that I have put to you to what 4 you have told the Inquiry today happened -- 5 A. I have always said it was a neighbour of the person who 6 let her into the house that told me. 7 Q. Can I ask why you saw fit to tell Mr Brown about this 8 matter when you had not sought fit to tell any other 9 serving police officers about what was, on the face of 10 it, quite a serious matter? 11 A. I don't really know. We were talking about it and I 12 told him what I had been told. 13 Q. Because I do want to put it to you again that as a 14 police officer you must have realised back in 1999 or 15 2000 that what was being discussed was a serious matter 16 for Shirley McKie and a serious matter for any officer 17 who had let her into the house. 18 You realised that, did you not? 19 A. No, not really, no. 20 MISS CARMICHAEL: Very well, Mr Reid. Thank you. 21 THE CHAIRMAN: Are there any applications? I am not 22 inviting them. Could you just clarify for me where is U 23 Division? 24 A. Kilmarnock. That area, Kilmarnock, yes. It may have 25 changed now, my Lord. page 130 1 THE CHAIRMAN: It has changed now? 2 A. It may have. I'm not sure. At that time it was 3 Kilmarnock area. 4 THE CHAIRMAN: The division that included Kilmarnock? 5 A. Yes. 6 THE CHAIRMAN: I am not sure that I have heard the 7 expression before that a neighbour in police means a 8 work colleague. 9 A. Yes, my Lord, yes. 10 THE CHAIRMAN: That's how -- 11 A. Someone you work with more often than not is your 12 neighbour, you go out on most shifts with that person. 13 THE CHAIRMAN: Not the person who lives next door? 14 A. No. 15 THE CHAIRMAN: Thank you very much, unless there are other 16 matters. 17 MISS CARMICHAEL: I don't have any further witnesses to 18 bring today, sir. 19 THE CHAIRMAN: Very good. Thank you very much indeed. 20 (The witness withdrew) 21 THE CHAIRMAN: Is that as far as we can go with evidence 22 today? 23 MISS CARMICHAEL: It is, sir. The representative of the 24 Scottish Police Service Authority had difficulty today, 25 you may recall, sir, and was anxious that officers who page 131 1 work for SPA not be called in her absence and given the 2 time of day -- 3 THE CHAIRMAN: I think we should be rewarded for having got 4 through as much as we have today and so we will finish 5 now for today and sit again tomorrow at 10.15. 6 (3.20 pm) 7 (Adjourned until 10.15 am the following morning) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25