page 1 1 Tuesday, 16th June 2009 2 (10.15 am) 3 THE CHAIRMAN: Mr Russell, you asked for leave to make a 4 submission and I have granted that and I understand that 5 Mr Ross wishes to say something; is that right? 6 MR RUSSELL: That is correct, sir. 7 THE CHAIRMAN: Yes. Now, which order do you want to go in? 8 MR RUSSELL: I just indicated to Mr Flinn, sir, who has just 9 asked me, that our preference would be to go later in 10 the day, which was an option put to us, so that 11 Mr McAllister could continue with his evidence to this 12 Inquiry and that could proceed before we make 13 statements. 14 THE CHAIRMAN: Yes, very good. I am not sure -- could we 15 begin with Mr McAllister? 16 MR MOYNIHAN: The other point is that I don't think we're 17 hearing Mr Russell because he wasn't using the 18 microphone. 19 THE CHAIRMAN: I picking him up all right, I think. It's 20 just that the microphones are not as effective as we 21 hoped they would be. But what you have said is that you 22 would like to go later in the day. I think the 23 Secretary to the Inquiry did say that we would try to 24 fit you in at a convenient time. So as long as 25 Mr McAllister is available, as I am sure he is ... page 2 1 Does anybody have any objection? I know I indicated 2 it would be 11.00 before we would begin Mr McAllister's 3 evidence because at that stage there was a slight 4 breakdown in communications and I did not realise that 5 Mr Russell had been given an option as to the start time 6 for his submission. 7 Would anybody object, if Mr McAllister is available, 8 if we take him earlier than I indicated? 9 Is Mr McAllister available? I think then we will 10 take his evidence now rather than spend time waiting. 11 ALEXANDER MCALLISTER (continued) 12 THE CHAIRMAN: Good morning. I am sorry, we are asking you 13 to return a little earlier than I said but if that is 14 not inconvenient to you, then we will proceed with your 15 evidence. 16 Examined by MISS CARMICHAEL (continued) 17 Q. Mr McAllister, we had reached something of a break in 18 your evidence but I should say that during the weekend 19 other representatives have contacted the Inquiry to ask 20 for clarification of some points regarding the events of 21 the evening of 8th January. 22 It may just be a convenient point to return to that 23 before moving on to other chapters of your evidence, if 24 we may. 25 One of the matters that has been raised is if it be page 3 1 that there was no Fiscal in attendance on 8th January, 2 can we draw any inference from that as to whether the 3 inquiry was being treated as a suicide inquiry or murder 4 inquiry in the early stages? 5 A. If there wasn't a Procurator Fiscal in attendance? 6 Q. Indeed. There is no evidence that one was. 7 A. I see. The normal course of events would be such that 8 if there was a significant element of suspicion we were 9 clearly dealing with a homicide, then certainly it would 10 be the normal course of events for the Procurator Fiscal 11 Depute on call in the local area to be advised of what 12 we were dealing with. 13 In my experience in dealing with fairly significant 14 number of suspicious deaths over the years, it's a 15 matter of choice for the particular Depute about whether 16 he actually attends at the scene. 17 I have known some deputes that come out for scenes 18 where there's a relatively low level of suspicion and 19 some deputes to leave matters in the hands of senior 20 police investigators when there's significant suspicion. 21 So it's somewhat difficult to give a black and white 22 answer to that question. 23 Q. Can we take it that in this particular case you have no 24 personal knowledge of what the communication may or may 25 not have been with the Fiscal? page 4 1 A. No. No, I had no part in it. 2 Q. I would like to take you, please, to SG0537. That 3 should appear on your screen, Mr McAllister. About four 4 entries from the bottom at 23.15 hours the writing is 5 not altogether easy to decipher but I think it is: 6 "DI McAllister enters locus." 7 The reason I'm asking you about this is because I 8 think your evidence was that you did not think you had 9 actually gone into the house at Irvine Road on that 10 evening and I am wondering whether, when you look at 11 this entry, that makes any difference to your 12 recollection or not. 13 A. I certainly did not enter the house itself on that 14 evening. I have no doubts about that. I'm looking at 15 this handwritten entry and ... it's difficult to make 16 out the writing, to be honest. 17 However, I absolutely did not enter the house on 18 that evening. My first entry into the house itself was 19 the following morning. 20 Q. Thank you. 21 I think your position in your statement to the 22 Inquiry has also been that Detective Superintendent 23 Malcolm didn't go into the house either that night. 24 A. My recollection was of standing outside the house in the 25 cold with Mr Malcolm for some time during the evening. page 5 1 I have no recollection of him going into the house 2 either. 3 Q. If we look again at the same sheet, I think we have 4 before your entering the locus at 23.15 Detective 5 Superintendant departing the locus; so it may be that he 6 has had some involvement at a time that you are not 7 present. Is that possible? 8 A. It is possible. Yes, he was not in my company 9 throughout the evening. 10 Q. The Inquiry has also seen by earlier reference to this 11 document that forensic science staff attended on the 12 first night 8th January and then returned on 13 10th January. 14 Are you able to help with what the significance of 15 the timing of those attendances is? 16 A. Well, certainly in terms of the attendance of a forensic 17 scientist on the first evening, that would be normal 18 procedure in a death where there was a significant level 19 of suspicion to give an initial assessment from the 20 scientific point of view and to take any samples which 21 were necessary for biological tests prior to any removal 22 of the remains of the victim. 23 Q. It may be you cannot answer this and we perhaps can ask 24 others about it but do you know why they went back on 25 10th January? page 6 1 A. I've no recollection now. Essentially, our processes 2 back in 1997 were such that the Identification Bureau 3 staff and the Forensic Science Laboratory staff would 4 essentially liaise with each other in terms of how they 5 carried out their particular aspects of the 6 investigation, and it's not something I had a direct 7 element with it. 8 Q. I would like to move on at this point to a different 9 topic and to take you to paragraph 63 of your statement. 10 You write here about an instruction about a possible 11 re-enactment of the door opening with a Mr Kinnaird. 12 In your statement you mention an initial incident 13 when Mr Heath came to countermand your instructions and 14 you recall also that you were asked about a possible 15 further instruction from you regarding this matter on 16 Sunday 12th January. I think the position was that you 17 couldn't find any -- you weren't aware of any relevant 18 records, you had not been shown any at the time your 19 statement was taken. 20 I wonder if you would look, please, at a document 21 CO1467 and move on to the second page of that. This 22 appears to be an action relating to Alan Kinnaird about 23 the situation with doors, what was locked, the 24 instruction seems to be: 25 "Show him door keys and have him repeat his actions page 7 1 on entering house." 2 A. Yes. This is a HOLMES generated action for a 3 reinterview of Mr Kinnaird to clarify the situation with 4 the doors at the locus when he actually entered the 5 house. 6 Q. Towards the bottom of the typed part of that sheet, we 7 see a number of linked actions and I think we heard from 8 Mr Heath that the way that the HOLMES system worked was 9 that we could then see from the dates on the left-hand 10 column when certain things had occurred in relation to 11 the instruction at the top of a sheet of this sort. 12 A. Yes. 13 Q. If you go to 11th January, we see an allocation to 14 DC Swan? 15 A. Yes. 16 Q. Then we see on 12th January 1997 at what I understand to 17 be 1102 am -- correct me if I am wrong: 18 "Changed to for referral." 19 A. Yes. 20 Q. What does that mean when you say "Changed to for 21 referral" here? 22 A. Again, this is within the HOLMES management system. The 23 date and the timing are when the HOLMES operator has 24 updated the state of that particular action, number 15. 25 So the first thing through on the 11th indicates that page 8 1 that action had been given to Detective Constable Swan 2 to carry out and subsequently on the following morning 3 when instructions of the SIO, Mr Heath, the status of 4 the action has been changed to for referral. In other 5 words, it's gone into a holding queue. In simplistic 6 terms, DC Swan would have been instructed not to carry 7 out that action without any further direction. 8 Q. So we should read "Changed to for referral" along with 9 the words "On instructions of SIO" that is the 10 continuation of the same -- 11 A. Yes. 12 Q. I wonder if you could look for me, please, at CO1419 and 13 go to page 2 again. This is another HOLMES document, I 14 think, and the Inquiry has some evidence to the effect 15 that this reflects times at which DC Cardwell(sic) was 16 given the keys for the property. If you go to the 17 bottom sheet where you see the word "movement", we see 18 there two entries for 9th January but also two entries 19 for 12th January which seem to indicate that 20 DC Cardwell(sic) got the keys at 10.45 and then at 11.00 21 they went back to the temporary production store. 22 A. Yes, that's my interpretation of the document. 23 Q. I wondered if we could infer anything from the apparent 24 coincidence of the times of 11.00 on this document and 25 11.02 on the document that we have just looked at where page 9 1 the action was "Changed to for referral on the 2 instruction of the SIO". 3 A. In terms of the previous document and the timing of the 4 change of status of the action, I should say that that 5 timing would have been the time at which the HOLMES 6 operator actually changed the document, changed the 7 status of the document. The actual decision to refer 8 could have been taken some time earlier and I should say 9 that at particularly busy phases of major inquiries 10 there can be a significant build-up in the paper 11 documentation awaiting copying on to the HOLMES system. 12 So I would be wary, I think, of necessarily 13 linking -- because the timings are very close, I would 14 be wary of linking them directly. 15 Q. I wonder if we could look at the previous document 16 again, please, page 2 of CO1467. 17 The allocation that we saw on 11th January to 18 DC Swan again, the timing I would take of 18.31 would be 19 the time that went into the system rather than 20 necessarily the precise time at which it was allocated. 21 A. That's my understanding. In all probability -- I'm not 22 an expert on the HOLMES system, I may say, but my 23 understanding would be that would be the time that the 24 system had been updated. 25 Q. Does sight of these documents assist you in any way with page 10 1 recalling a possible further instruction from you 2 regarding the matter on or about the Sunday 3 12th January? 4 A. I'm afraid it doesn't. My recollection at the time from 5 the initial inquiries was that there was a lack of 6 clarity within the documents, principally Mr Kinnaird's 7 early statement, around the sequence of entry into the 8 house, which doors had been locked, which had been 9 insecure and so forth and in a general sense I was keen 10 to establish clarity in that area. But I'm afraid my 11 recollection about the specifics of how we went about 12 that has faded somewhat. 13 Q. Thank you. 14 Can we move on to paragraph 67 of your statement, 15 please, Mr McAllister. There you mention you are shown 16 a document SG0836 and I would like to have that on the 17 screen, please -- this is, in fact, Mr McAllister's 18 statement. The document is in fact SGO386. If we start 19 to scroll through the pages there, can we move on to 20 perhaps page 3 here. 21 Can you tell us what this document is, please, 22 Mr McAllister? 23 A. Yes. It's a HOLMES-generated document. It has been 24 generated on 17th January 1997 and it is a list of all 25 police officers who had been logged at the crime scene. page 11 1 From looking at the document previously at 2 precognition, I formed the view that it was a 3 chronological list of terms of officer attendance at the 4 scene. 5 Q. You see in the top right-hand corner it seems to be 6 saying "rec'd" -- possibly received -- from 7 DI McAllister on 17th January 1997. 8 A. Yes. 9 Q. Who would you send this off to and why? 10 A. In all probability, I have sent a copy of this document 11 to the SCRO fingerprint section for elimination purposes 12 or for checking of those officers against any 13 outstanding marks at the crime scene. 14 Q. Do you need a moment, Mr McAllister? 15 A. That's fine. 16 Q. If we could move on within this document again please. 17 We are looking at what is page 4 of the PDF and we see 18 some writing: 19 "Cut off point info from DI McAllister." 20 There are two words I'm not quite sure what they say 21 and "29/01/97." 22 Can you help us with what that might mean? 23 A. Yes. I think the words or the word under my own name is 24 actually "debrief", a debrief on 29th January 1997. 25 Sorry, can the operator put the document back? Thank page 12 1 you. 2 Q. What is the significance of "cut-off point"? 3 A. It's not my writing. That's the first thing I should 4 say. My assessment of looking at the document is that I 5 have probably been asked to prioritise or have taken a 6 decision to prioritise which officers to ask SCRO 7 fingerprints to check for elimination purposes first of 8 all, and, from looking at the document where the cut-off 9 point has actually been drawn, it appears to me that the 10 officers below that line are, with a few exceptions that 11 are essentially uniformed officers, probably those who 12 were carrying out the guard duty at the house on the 13 days following the initial investigations at some point. 14 So it's probably been a purely pragmatic decision on 15 my part to suggest to SCRO that they would wish to check 16 out or they might check out to DC O'Hanlan, Detective 17 Constable in the first instance. 18 Q. An instruction of this sort, I think I remember you 19 saying you would ask to check these first of all. Is 20 this a once and for all instruction or would you expect 21 the additional officers to be checked at some stage, 22 albeit perhaps not being prioritised? 23 A. No, it's an interim position, again, from a 24 prioritisation point of view to check those officers 25 first. page 13 1 Clearly, if there still remained a number of 2 outstanding marks, ultimately it would be essential to 3 check every officer who had ever been at the scene at 4 any time. 5 Q. Thank you. I think we can leave that document now. 6 The first part of your evidence on Friday was about 7 the matter of allocations regarding what Mr Moffat has 8 said he said to you and what he said you said to him and 9 you indicated that in the course of your evidence on 10 Friday that you had, in fact, created a report for 11 Detective Superintendent Malcolm. 12 A. Yes. 13 Q. I think we have this in hard copy for everyone to use. 14 Do you have a copy, sir? 15 THE CHAIRMAN: I think so. 16 MISS CARMICHAEL: I believe we can put it on the camera. 17 Would you be able to follow it sufficiently? If you can 18 follow what is on that ... 19 What we see here is a document headed "Memorandum" 20 and dated 29th August 2000? 21 A. Yes. 22 Q. It is from yourself, Detective Chief Inspector 23 McAllister K Division, to Detective Chief Superintendent 24 Malcolm who I think you told us was head of CID at the 25 time? page 14 1 A. Yes, head of CID for Strathclyde Police. 2 Q. You have headed it, "Erroneous information given by 3 force support officer." 4 You relate in the first paragraph that: 5 "On Monday 28th 2000 [you were] interviewed by 6 officers of Tayside Police in relation to [your] 7 knowledge of events surrounding the identification in 8 1997 by SCRO of a crime scene mark as that of the then 9 Detective Constable Shirley Cardwell ..." 10 In the second paragraph you relate: 11 "In the course of the interview [you were] made 12 aware by the interviewing officers of information given 13 to the Tayside Police enquiry team by Michael Moffat, 14 Scenes-of-Crime-Officer with the Identification Bureau." 15 Then you set out what is described as the relevant 16 points of Mr Moffat's information. The first of this is 17 that Mr Moffat became aware that police officer 18 Detective Constable Gary Gray was wearing a rubber glove 19 which had become damaged and exposed a finger or 20 fingers. 21 Can you recall what Tayside Police told you 22 regarding which digits were exposed? 23 A. I don't think the information that was conveyed to me by 24 the Tayside police officers was that specific and I 25 certainly didn't get anything in writing from them. It page 15 1 was simply verbal and very soon after the conclusion of 2 that interview I had summarised essentially what had 3 been conveyed to me from them within this document. 4 Q. Your second point is the presence of yourself and 5 Mr Moffat at 43 Irvine Road, Kilmarnock, reviewing marks 6 at the crime scene. 7 A. Yes. 8 Q. The third is that Mr Moffat expected that mark Y7 may 9 have been eliminated as Detective Constable Gray's. 10 Going on to paragraph 4, which is Mr Moffat having 11 referred you to that possibility in discussion with 12 yourself. 13 You also record that you allegedly responded that it 14 was not DC Gray's mark but was known to be that of a 15 police officer whom you did not name. 16 Would it be fair to summarise what follows as your 17 denial, effectively, of the truth of Mr Moffat's account 18 on those matters? 19 A. Yes, certainly. Denial wasn't a term I used but I 20 thought it was appropriate for me to set out the facts 21 of the matter as known to myself to my senior officer. 22 Q. And the position as to whether or not Detective 23 Constable Gray was wearing the damaged glove at the 24 location is that simply is not something you know about 25 yourself at all? page 16 1 A. I had no knowledge until this interview in 2000. 2 Q. Following that interview and your report to Detective 3 Superintendent Malcolm, do you know whether any steps 4 were taken to check whether Gary Gray's print could be 5 matched with Y7? 6 A. I don't. In truth, I left the matter with Mr Malcolm 7 for whatever appropriate action he deemed to be fit. 8 The circumstances at the time obviously were that 9 Mr Mackay's Inquiry was in full flow and it was a fairly 10 significant inquiry. So in terms of any contact between 11 Mr Mackay and senior officers at Strathclyde Police that 12 was not something that I was involved in and I don't 13 recall being updated at any later stage regarding this 14 matter. 15 Q. Were you interested to be updated or did you seek to be 16 updated? 17 A. I think it's fair to say, based on the discussions I had 18 with Tayside officers, I received a level of comfort in 19 terms of what credibility they were according to myself 20 and to Mr Moffat. So I was interested in it but I was 21 not anxious about the matter. 22 Q. Just to clarify what you just said, did you get the 23 impression that the Tayside officers preferred your 24 account to Mr Moffat's? 25 A. Fundamentally, yes. page 17 1 Q. Do you know whether anyone else within Strathclyde 2 Police was aware of this series of allegations by 3 Mr Moffat in and around 2000? 4 A. I don't is the simple answer to the question, although 5 from information I'm now aware of I suspect that 6 Mr Hogg, as head of the Identification Bureau, may have 7 some knowledge of what Mr Moffat had been saying. 8 Q. What information is that that has come to your 9 attention? 10 A. Essentially, around the inference that Detective 11 Constable Gray had been responsible for leaving the 12 questioned mark at the crime scene. But I haven't had 13 any discussions with Mr Hogg concerning that. 14 Q. I am sorry, but how did it come to your attention that 15 Mr Hogg might be aware of this matter? 16 A. I think it's something I've seen in some of the material 17 that's on the website for this Inquiry. 18 Q. So it's come to your attention through this Inquiry -- 19 A. Fairly recently, yes. 20 Q. Were you aware of any other discussion in Strathclyde 21 Police at any stage before this Inquiry about this 22 matter or any investigation into it? 23 A. No. 24 Q. Moving to the last two paragraphs of this document, you 25 say that the apparent account of the events of Thursday page 18 1 23rd January 1997, as stated by Mr Moffat, to Tayside 2 Police causes you concern in that he attributes remarks 3 to you which may be taken to infer that you may have had 4 some level of prior knowledge of the identification of 5 mark Y7. You say that that is simply not the case. You 6 say you have not spoken to Mr Moffat with regard to his 7 recollections and you have no idea why he has given 8 information which you know to be false. 9 Have you at any stage after this spoken to Mr Moffat 10 about the matter? 11 A. I'm sorry, I didn't catch the first part of your 12 question. 13 Q. After writing this memo in which you record you had not 14 spoken to Mr Moffat, did you at any stage come to speak 15 to Mr Moffat about it? 16 A. No. 17 Q. If you would give me a moment, sir. There are some more 18 hard copy documents we may need to look at, sir, if you 19 will just give me a moment to make sure we have the 20 correct copies to hand. (Pause) 21 Sir, I think we are faced with a slight 22 technological difficulty which may mean I come to things 23 slightly out of chronological order in this witness's 24 evidence for which I have to apologise. 25 Moving on to a point of detail, please, that I would page 19 1 like you to clarify in relation to paragraph 81 of your 2 statement, please, Mr McAllister, if you look at that. 3 (Pause) 4 You record your understanding there that a 5 particular parcel was found on a settee. 6 A. Yes. 7 Q. The Inquiry has seen a video that seems to indicate on 8 the night of 8th January it's being on a side table in a 9 nest of tables beside a sofa in the living room and the 10 Inquiry has heard that that was the position it was in 11 when it was found. 12 Now, are you in a position to contradict that? 13 A. No. No, I'm not. I should say I had not been in the 14 scene in the initial examination so I had not seen this 15 particular item in its original location within the 16 house. My knowledge of it would have been through 17 looking at crime scene photographs at a later stage. 18 I do recall there were a number of what were clearly 19 unwrapped Christmas presents, presumably received by 20 Miss Ross, on a settee and my thought at the time was 21 that this wrapped gift was with those, but, again, I'm 22 somewhat vague in my recollections after so much time. 23 It possibly may not have been on the settee itself. 24 If the photograph showed it somewhere else, then I'm 25 sure that's correct. page 20 1 Q. I think simply for completeness, sir, I have here a hard 2 copy of a photograph that we have on the system but 3 others have had difficulty with the darkness, as it 4 were, of the reproduction on the system. So I wonder if 5 this could be put on camera. On the system it's -- 6 THE CHAIRMAN: Do you want both up? Do you want to show the 7 original. 8 MISS CARMICHAEL: Yes, I think it's more benefit to show the 9 original because the witness, I suspect, is likely to 10 have greater ease in seeing what we are talking about 11 with it. As I say, this document is on the system but 12 others have had some difficulty. 13 Can we put this landscape style. If we look in the 14 centre -- we see here a photograph of a living room, 15 Mr McAllister, with a sofa located to the left of the 16 image, a door roughly in the centre and we see in front 17 of the door what appears to be perhaps a small table 18 protruding and I think we can see in red that item on 19 it? 20 A. Yes. 21 Q. You mentioned having seen photographs. Is this one that 22 you have seen before? 23 A. I have seen this photograph or others that showed 24 similar views, yes. 25 Q. And the Inquiry has heard that it is the red wrapped page 21 1 item that came to be the item of significance rather 2 than other items on a settee? 3 A. Yes, a number of items on the settee, as I recollect, 4 were clearly gifts which Miss Ross had received that 5 festive season and the wrapped item was the significant 6 item amongst those gifts. 7 Q. When we look at the sofa that we see in this particular 8 image, I think it might be fair to say that there are 9 perhaps potential unwrapped gifts on the sofa itself. 10 There seem to be boxes located along it, particularly to 11 the end view to the photographer. Would that be fair to 12 say? 13 A. Yes. 14 Q. I have been passed a number of hard copy items, sir, and 15 it may be I can turn to the passage I was hoping to 16 slightly earlier. 17 I would like you to look, please, at a document 18 ST0001. I am told that, I think, possibly as a result 19 of difficulties this morning we don't have yet have hard 20 copies of this and I can seek for others but it may be 21 that we could put it on the screen at any stage in any 22 event and could make further copies available when they 23 are available. 24 I wonder if it could be put on the screen unless 25 there's any objection to proceeding in that way at this page 22 1 stage? 2 THE CHAIRMAN: Yes. No, I think that is reasonable. You 3 will produce it later in hard copy? 4 MISS CARMICHAEL: Yes, sir. 5 THE CHAIRMAN: We can see it and follow it. 6 MISS CARMICHAEL: We see here I think a statement made by 7 yourself, Mr McAllister. 8 A. Yes, it is. 9 Q. And your age there is recorded at the time as 41. 10 A. Yes. 11 Q. I don't think we have a date when the statement actually 12 was made but does that help you perhaps with when it may 13 have been made? 14 A. It was a statement I made around my involvement in the 15 Marion Ross investigation for recording on the HOLMES 16 system. 17 Q. I think we see at the bottom left-hand corner of this 18 document that we've got: 19 "Archive U273 murder of Marion Ross 1997". 20 So would we take it that this is somebody going back 21 to the HOLMES record from the investigation and finding 22 your statement there? 23 A. I think that's a reasonable assumption. The 24 investigation that's been recorded in the HOLMES would 25 normally be archived after the conclusion of criminal page 23 1 proceedings or appeal proceedings. So it's probable 2 that someone has accessed the archive system in order to 3 retrieve this print. 4 Q. It is simply in relation to a matter that you record on 5 the final page of the statement that I would like to ask 6 you, Mr McAllister. You record that at about 2.30 pm on 7 Thursday 23rd January you entered the house along with 8 Mr Moffat to review the fingerprint examination of the 9 scene. You write: 10 "I then reviewed the search of the house with 11 Detective Constable Kerr and Constable McIntyre ...", 12 and you left the house about 4.50 pm. 13 You mention a further visit on Friday 24th 14 January 1997 and I wonder if, for completeness, you 15 could tell us about what happened on that occasion 16 because I don't think you clarified that when your 17 statement was taken. 18 A. Yes, the search on the Friday by the police unit was 19 essentially the final search that was made of the house 20 and curtilage of the house, an independent search by 21 specialist trained officers who had no prior 22 involvement. They had their particular specialisms in 23 identifying voids within houses, anything that might 24 contain items of potential value which hitherto had not 25 been established. In essence, it's almost a final page 24 1 insurance policy in terms of dealing with a locus of 2 this nature to ensure that the investigators had not 3 missed anything. 4 Q. Should we take it that there was no particular further 5 work done in relation to fingerprints during your visit 6 on 24th January? 7 A. I think by that stage the fingerprint examination had 8 been completed. 9 Q. Moving on to a slightly different topic, Mr McAllister, 10 we heard from Mr Heath that he had had a discussion 11 possibly around 23rd January with one of the Fiscals in 12 which he had been told that there was a fairly 13 circumstantial case in relation to the person who had 14 come to be of interest to the police inquiry. 15 Were you aware of that? 16 A. No. No, I wasn't. I don't recall having any contact 17 with any of the Procurator Fiscal staff throughout that 18 investigation. That was dealt with by Mr Heath. 19 Q. Was there any particular pressure in the period between 20 23rd January (when Mr Asbury first appeared in court and 21 the time about eight days later when he was due to 22 appear in court again) on the police, as it were, to 23 improve the evidential position to gather credible 24 evidence against him? 25 A. No, no, I don't think there was any pressure other than page 25 1 we would normally experience in an investigation of this 2 sort. It was certainly not my sense at the time that 3 the case against Mr Asbury was circumstantial and, 4 without going into the details of that case, significant 5 fingerprint identification at the locus and a number of 6 other areas of supporting evidence. So my view was 7 certainly not that it was circumstantial. Perhaps 8 Mr Heath was a little bit more -- slightly a bit more 9 pessimistic than myself in that area. 10 Q. I think Mr Heath said that remark was attributed to the 11 Fiscal that said it was a circumstantial case. 12 I would like to move to the time when you first 13 became aware that the mark Y7 had been identified as 14 belonging to DC Cardwell, as she was then. 15 How did you become aware of that? 16 A. That was later on in the investigation on 11th February, 17 if I recall, and I either received a call directly from 18 SCRO fingerprints or someone took a call on my behalf, 19 but I was certainly at Kilmarnock Police Office that day 20 when I was made aware, still in terms of my liaison 21 role, that Y7 had been eliminated. 22 Q. What did you do when you received that information? 23 A. I think I spoke to Stephen Heath about it at that time. 24 Thereafter, as I recall, Shirley was on duty and I spoke 25 to her. I mentioned that one of the prints within the page 26 1 house had been eliminated as hers and directed her to 2 put in an additional statement into the HOLMES system to 3 cover her presence at the locus. 4 Q. What was DC Cardwell's response? 5 A. She was adamant from the outset that she had not been 6 within the house, that she had certainly been at the 7 front porch area, I think, on a couple of occasions but 8 had not been within the house itself and that was her 9 position. 10 Q. Do you recall being told by Mr Heath to sort the matter 11 out? 12 A. No. No, I don't. My recollection is of contacting SCRO 13 fingerprints again that day after speaking to Shirley 14 and asking them just to confirm that that particular 15 mark was in fact eliminated as hers because of the 16 position she had taken. 17 Q. Who did you speak to there? 18 A. I think it was Mr Macpherson, Hugh Macpherson, although 19 I couldn't be specific. 20 Q. How did you find out whether he had checked the matter? 21 A. Well, SCRO fingerprints confirmed for me that it was in 22 fact Shirley Cardwell's, as she was at the time. I 23 think they actually phoned me back slightly later that 24 afternoon after having checked it, to the best of my 25 recollection. But certainly they gave me confirmation page 27 1 that day that it was in fact her print. 2 Q. What did you do when you received that confirmation? 3 A. I believe I spoke to Shirley again and just confirmed to 4 her that the elimination -- that there was no mistake 5 with the elimination, that it had been confirmed by 6 SCRO. 7 Q. Again, can you recall what her reaction was at that 8 stage? 9 A. Her position was unchanged. She was adamant that she 10 had never been within the house itself and her only 11 access to the locus had been to the front porch area. 12 Q. The Inquiry has some evidence about a re-photographing 13 of mark Y7 on 12th February. 14 A. Mmm. 15 Q. What is your best recollection regarding that? 16 A. I'm afraid I have no recollection whatsoever of being 17 involved in a re-photographing at that early stage. I 18 certainly had involvement in a complete re-photographing 19 and re-identification exercise the following week. 20 Q. I think that would be about 18th February? 21 A. The 18th, yes. 22 Q. Again, there are some hard copy documents that I would 23 like you to look at, please. 24 Again, sir, these are items that have been printed 25 off this morning, if I may just have a moment. page 28 1 I would like you, first of all, to have a look at a 2 document AG0001. You may just need a moment to look at 3 that because I am not sure that you have been asked 4 about this in quite this way, but what I can tell you is 5 that the page I am particularly interested in is the 6 page numbered 3. I think that will be put up on the 7 screen. I would like page 1 and 2 put up as well so 8 that Mr McAllister and everyone else can see what 9 document it is we are looking at here. 10 Would I be correct in thinking this is a handwritten 11 statement from you about the inquiry that we are 12 concerned with here? 13 A. Yes, it is. It's in my own handwriting. 14 Q. We see, I think, the first full paragraph relates your 15 duty on 11th February and then when you get to the final 16 line on the first page you start to explain why mark Y7 17 was of particular importance. 18 If we can go to page 3, if you feel that you have 19 had sufficient opportunity to satisfy yourself about 20 what this document is, Mr McAllister? 21 A. Yes -- 22 Q. If you need more time to look at it, please, just say. 23 A. No, that's all right. 24 Q. But if you go to the third page, we see you are 25 recording what you have told us about regarding your page 29 1 contact with Mr Hugh Macpherson and in the following 2 paragraph you write: 3 "I informed her of this ,.." that is informing 4 DC Cardwell of the outcome of your contact with 5 Mr Macpherson and you write: 6 "She was adamant that she had never entered the 7 house ..." and you say you informed DCI Heath of this 8 development. 9 If we can perhaps leave this document to the side 10 just at the moment, please, and move on to a different 11 one, CO2217, this document unlike, I think, the 12 handwritten one has on the first page dates and timings. 13 What it bears to be is a statement taken by Chief 14 Inspector Wilson and it does -- certain portions of it, 15 at least, are very similar to what is in your own 16 handwritten statement that we have just looked at and, 17 again, here it is the third page that I would like to 18 move to. 19 I think we have seen in your handwritten statement: 20 "I informed her of this ... but she was adamant that 21 she had never entered the house. I informed ... 22 DCI Heath about this development ...", what we see 23 halfway down page 3, if you can find the passage: 24 "I informed her of this confirmation but she was 25 adamant that she had never entered the house. I page 30 1 subsequently informed Detective Chief Inspector Heath of 2 this development." 3 However, in the statement that is recorded as being 4 taken by Chief Inspector Wilson, we see a further 5 passage: 6 "Who instructed me to have impression number Y7 7 re-photographed. I contacted Inspector Thompson ...", I 8 think maybe there is an "of" missing there but 9 "Identification Branch at force headquarters and 10 arranged to have Scenes of Crime Officer Wilson 11 re-photograph Y7 and take the developed film to SCRO for 12 comparison." 13 I appreciate that we have got something here in a 14 typed statement that is not in your own handwritten one 15 but I am wondering if it in any way assists your 16 recollection to see that. 17 A. I think in terms of the context the Chief Inspector 18 Wilson at that time was attached to Strathclyde Police 19 Complaints and Discipline Branch and was tasked with 20 carrying out an investigation around this element or 21 this part of the Marion Ross case. 22 The handwritten statement would have been -- well, 23 was certainly prepared by myself and probably just 24 submitted to Mr Wilson for his information. In the 25 first instance, I do recall Chief Inspector Wilson then page 31 1 coming to Kilmarnock and essentially interviewing me and 2 taking another statement, of which this would appear to 3 be a typed-up version. 4 Certainly I think this was taken in June 1997; so 5 fairly soon after the events in question. At that point 6 clearly he has noted information from me around this 7 re-photographing exercise. Unfortunately, I've no 8 recollection at this stage of that particular element. 9 Q. So you're not disputing that that may have been 10 correctly recorded by Mr Wilson who took the statement 11 at the time? 12 A. No, no, not at all. If he's recorded that, I've no 13 doubt that's whatever I've conveyed to him back in 1997. 14 Q. Thank you. 15 In the period after you became aware that mark Y7 16 had been identified as DC Cardwell's mark, the Inquiry 17 has heard a suggestion that she was visited, I think, by 18 a DI MacDonald, one of your colleagues. 19 Do you have any knowledge as to what instructions 20 were given to DI McDonald? 21 A. No, not all. 22 Q. Do you have any personal knowledge as to what transpired 23 between DI MacDonald and DC Cardwell? 24 A. No. 25 Q. Mr McAllister, I think you may already be aware that the page 32 1 Inquiry has received information in a statement from a 2 gentleman called Leslie Brown? 3 A. I have some knowledge, yes. 4 Q. Do you know Leslie Brown? 5 A. Not personally. 6 Q. But do you know who he is? 7 A. I believe he's a former detective officer of Strathclyde 8 Police and I think at City of Glasgow Police. 9 Q. Have you ever spoken to him about the case that we are 10 concerned with here today? 11 A. I don't think I've spoken to him directly. There was 12 some e-mail correspondence relatively recently. 13 Q. To you yourself? 14 A. Instigated by Mr Brown to myself essentially seeking 15 leave to precognosce me in relation to my knowledge of 16 this case and no precognition took place. 17 Q. Mr Brown has alleged that your father approached him, 18 perhaps just over a year ago, and told him that you knew 19 that Shirley McKie had been inside the house at Irvine 20 Road, Kilmarnock. 21 Do you know whether that allegation is true -- 22 THE CHAIRMAN: There are really two questions there: one, 23 his father approached Mr Brown, which the witness may or 24 may not be able to answer. 25 MISS CARMICHAEL: I am sorry, that was the intention, sir. page 33 1 Do you know whether your father spoke to Leslie 2 Brown in the terms that Leslie Brown alleges? 3 A. I know, having spoken to my father relatively recently, 4 within a few days, that no such -- his position is that 5 no such conversation took place. 6 Q. Can we be quite clear about this: you asked your father 7 about this because the Inquiry has raised the matter 8 with you? 9 A. Yes. 10 Q. Did you ever yourself tell your father that you knew 11 that Shirley McKie had been inside the house? 12 A. No. 13 Q. Do you know whether Shirley McKie was ever inside the 14 house? 15 A. I don't, no. 16 Q. I think you have raised at one stage with the Inquiry 17 the possibility that there may be a case of mistaken 18 identity here in what Mr Brown has told the Inquiry and 19 that there was another senior gentleman called 20 McAllister, other than your father, who might have been 21 involved. 22 I wonder if you could just clarify that for us. 23 A. Well, whether he's involved or not I have no idea but I 24 am aware of another retired officer who was a former 25 detective superintendent of Ayrshire Constabulary and page 34 1 latterly Strathclyde Police, a Mr Derek McAllister. 2 Because I have fairly strong professional connections 3 with Ayrshire a number of people have assumed wrongly 4 that over the years that I am in some way related to 5 Derek McAllister, which is not the case. 6 Q. Just to clarify, your father is himself also a retired 7 police officer? 8 A. My father is a retired officer, I think he retired in 9 1984 or 1985. He was an officer of the Lanarkshire 10 Constabulary and, latterly, Strathclyde Police. 11 MISS CARMICHAEL: Thank you, Mr McAllister. I don't have 12 any further questions for you at moment. 13 THE CHAIRMAN: Mr Holmes, have you any application to make? 14 MR HOLMES: No, sir, I have no questions. 15 MR SMITH: Sir, I do have some questions. The topics I 16 would like to explore with this witness is some more 17 questions regarding the integrity of the scene; 18 secondly, some further questions about the new 19 production that was given to us today; the third matter 20 is relating to the attitude towards Shirley McKie and 21 her position that was adopted; the fourth is a one short 22 question relating to the information about Mr Les Brown, 23 and the final matter is relating to the method of 24 contact with the SCRO, if any, and what information was 25 exchanged and communicated. page 35 1 THE CHAIRMAN: I think the last was explored fairly fully. 2 MR SMITH: It was explored fairly fully. There is just one 3 matter I wanted to check. 4 THE CHAIRMAN: If there is one matter to check I give you 5 leave. 6 MR SMITH: Thank you, sir. 7 Cross-examined by MR SMITH 8 Q. Mr McAllister, can I just be clear about this: from a 9 very early stage you were aware, I think you said, this 10 was a homicide that you were dealing with? 11 A. Certainly my view was it was in all likelihood a 12 homicide, yes. 13 Q. As far as the locus being a homicide locus, that of 14 course would involve some fairly robust methods of 15 securing the locus so that there is no interference with 16 any potential evidence which might be there; that's 17 fair, isn't it? 18 A. Yes, the normal course of events would be for a guard to 19 be maintained on the locus until such time as the 20 forensic investigations and so on could be carried out. 21 Q. I am a little confused. As to what the division of 22 labour was and responsibility was that existed as 23 between you and Mr Heath as to who was responsible for 24 ensuring the locus was properly protected and the 25 evidence within it, can you explain to us what the page 36 1 position was, please. 2 A. Do you mean on the night of the discovery of Miss Ross' 3 body? 4 Q. Yes. 5 A. My involvement on that night was entirely external to 6 the house, essentially around the initial interviews 7 with relatives and Mr Kinnaird and, initially, 8 house-to-house inquiries. Mr Heath, as the SIO, senior 9 officer, chose to deal with the locus if I put it in 10 those terms and he was the one who entered the locus. 11 Q. Right. He may have entered the locus but I want to be 12 clear about this: who was responsible as between you and 13 Mr Heath to ensure that the locus was not breached other 14 than by those who had a proper purpose for being there? 15 A. Well, ultimately that is a matter for the Senior 16 Investigating Officer to give such instructions as he 17 feels are appropriate to maintain the integrity of the 18 locus. I have no recollection now of giving any 19 instructions myself on that night in terms of that 20 integrity. 21 Q. In your statement to the Inquiry, I think you indicate 22 from paragraph 15, I will just read out what it said: 23 "After removal of the body from the house on 24 8th January the house was secured and there was at the 25 very least a police guard by the door to prevent anyone page 37 1 from accessing the house. I was not directly involved 2 in the instruction of this and so do not know when a 3 guard or lock keeper would have been deployed. The log 4 itself will show when it started." 5 Again, that was your understanding, was it, that the 6 locus was effectively secured at least by the time 7 Miss Ross' body was removed? Is that correct? 8 A. Yes. 9 Q. Was your job one which was essentially a liaison officer 10 between, for example, SCRO and the police? Were you the 11 link man, if I can put it that way, between the two 12 organisations? 13 A. Yes, I was, at Mr Heath's request, yes. 14 Q. I think Counsel to the Inquiry put something to you from 15 the log itself which indicated and you commented on 16 appears to record when you, it says, enters at 23.15 and 17 departs the locus at 23.20. I think you said that was 18 incorrect you were not in the locus at least at that 19 time. Is that right? 20 A. At no time on the first evening was I in the house. 21 Q. This is 8th January I am referring to. 22 A. Yes, on the 8th. 23 Q. But I take it you were actually at the locus but not in 24 it at that time? 25 A. I was certainly outside the house, yes. page 38 1 Q. Can you understand if there is any reason why they 2 recorded that you were there, that you were actually in 3 the house? 4 A. I think, looking at the log now, it's a fairly 5 unstructured log that was taken and, in fact, the 6 processes that we follow these days in terms of crime 7 scene recording are much more stringent. So I think 8 it's probably fair to say there's a lack of specific 9 accuracy within the log. 10 Q. Who's responsible for the methodology of the log? 11 A. In 1997? 12 Q. Yes. 13 A. Essentially at that time we did not have a structured 14 methodology for recording access and attendance at crime 15 scenes. A log would be kept and probably initially in 16 an officer's, attending officer's notebook and 17 thereafter on loose sheaf paper, as was the case in this 18 particular investigation. 19 Q. Again dealing with your Inquiry statement, I think you 20 indicate, just reading from the beginning of 21 paragraph 15: 22 "Detective Superintendent John Malcolm was contacted 23 and told of the incident." 24 You say: 25 "He attended Irvine Road and I spent some time page 39 1 discussing matters with him outside the house." 2 I think if we look at the log that is before us just 3 now, the entry is at 23.37 Detective Superintendent 4 Malcolm arrives at locus", and it seems to say, if I am 5 looking at this correctly, above the word "locus, 6 "enters" and it's maybe "earlier seen" or "HOU". I am 7 not sure which it is. Do you see that? 8 A. Which time entry? 9 Q. The entry is 20.37. It's just above the lower hole in 10 the side of the paper. Do you see that? 11 A. I do, yes. 12 Q. Then we see the next entry is somewhat further down the 13 page at, I think it's 23.00 hours "D Super Malcolm" and 14 there's a squiggly line down and I think it's probably 15 "departs locus" or "depart locus". Do you see that? 16 A. Yes, I do. 17 Q. So apparently in the locus for about two and a half 18 hours, just short of two and a half hours. Do you see 19 that? 20 A. I certainly see both entries, yes. 21 Q. Let us assume that the log is broadly accurate, if we 22 can, for the moment. Are you able to tell us in your 23 knowledge of what Detective Superintendent Malcolm was 24 doing, if at all, for that length of time in the locus? 25 A. No. No, my only recollections on the evening were of page 40 1 speaking to Mr Malcolm outside the house and certainly 2 when Mr Heath had entered the house Mr Malcolm and I 3 remained outside. I've no knowledge -- he may have 4 entered the house later but I've no knowledge of it. 5 Q. Did you ever discuss with him what he found or what he 6 thought or what might be a good idea? 7 A. No. The Senior Investigating Officer was Mr Heath. 8 Mr Malcolm's role was essentially an overview role for 9 all major crime investigations at that time in the south 10 side of Glasgow right down into Ayrshire. 11 Q. I am just wondering what he could have been doing 12 because he was there for quite a long time. That's 13 fair, isn't it? 14 A. If indeed he was in the house itself between the two 15 timed entries, the initial investigations within the 16 house that evening did take quite some time, as I would 17 anticipate in the case of a very suspicious death. 18 Q. You see again reading on from the statement where I left 19 off you explain that you spent some time 20 discussing matters with him outside the house: 21 "I cannot recall exactly what time this took place. 22 He did not enter the house", is what is said. 23 A. He did not enter the house in my sight and certainly he 24 and I remained outside for a period of time. 25 Q. So we should in fact look at that as, in fairness to page 41 1 your statement, that you did not see him enter the house 2 rather than he did not enter the house at that stage. 3 In Mr Heath's evidence to this Inquiry, on the 4 morning of 9th June, at page 25, line 14, for purposes 5 of everyone else's notes, what he said was this -- he 6 was asked the question: 7 "So without a good reason for putting officers in 8 the living room, that is not something that you would 9 necessarily have thought was a good idea [himself]?" 10 Mr Heath said: 11 "No, it's not necessarily a good idea. I think I 12 left DI McAllister there at the locus with clear 13 instructions to secure, and Gary Gray, and to carry out 14 what related to the house." 15 In the afternoon session, reading on, on 9th June 16 afternoon session page 25, line 24: 17 "Did Mr McAllister [he is asked] convey to you at 18 any stage police officers had been, as it were, guarding 19 the locus but in the living room", and he said: 20 "What you are saying to me now is the first time 21 that I've heard of that." 22 Can I take the first of these quotes, first of all. 23 You will appreciate that there seems to have been some 24 kind of understanding by Mr Heath that he had left you 25 in command to organise securing of the locus. page 42 1 Can I have your comments on that, please? 2 A. Well, as I've said earlier, I've no recollection of 3 giving any specific instructions around the protection 4 of the locus on that night. My duties were essentially 5 external to the house. 6 Q. You see, we have also heard some information and may yet 7 hear evidence that on 8th January -- I will just cover 8 the detail of this in case you are unaware of it -- 9 Constable Lynn Nicol who gave a statement, a 10 precognition, to the defence team for Shirley McKie 11 coming up to her perjury trial and she indicated she was 12 on night shift on 8th January and took up 13 security duties at 43 Irvine Road. At 23.30 hours on 14 8th January she arrived and she admits she entered the 15 house and was, she says, instructed to remain in the 16 living room. 17 Can I ask for your comments about that, first of 18 all, bearing in mind the importance of the integrity of 19 the locus. If a police officer was under the impression 20 she was instructed to remain in the living room of that 21 particular house, do you have any comment on that? 22 A. My preference certainly, then and now, would be that any 23 intrusion into the house would be limited to that that 24 was essential. My expectation is that officers on guard 25 on the first evening would have gone no further than the page 43 1 porch area itself, certainly not into the house. 2 Q. You say it is your preference then and now. It's more 3 than a preference though, isn't it, Mr McAllister. It 4 would be pretty well essential that non-essential 5 persons do not go into the house. That is right, is it 6 not? 7 A. Yes. 8 Q. It is common sense if not always invariable police 9 practice, isn't it? 10 A. Absolutely. I mean, intrusion -- basic forensic 11 principles would be to minimise intrusion to the crime 12 scene or potential crime scene. 13 Q. If I can put something else that Constable Lynn 14 Wyllie -- again, she gave a precognition to the defence 15 team -- she relates arriving at 43 Irvine Road at 16 03.15 hours on 9th January and she indicated: 17 "From memory at that time the other officers who 18 were present, like myself, were permitted access to the 19 living room of the house." 20 Again, she indicated that was her understanding and 21 that would be frankly unacceptable for that to have 22 taken place, isn't it? 23 A. Well, it would certainly not be a position that I would 24 have been comfortable with as an investigating officer 25 myself, having that level of intrusion within a page 44 1 potential crime scene. 2 Q. I think Constable Wyllie was accompanied by a colleague 3 a PC Maguire although we have a statement from PC 4 Maguire on the basis of what PC Wyllie says, it may be 5 reasonable, certainly on this side here, assuming that 6 Constable Maguire may also have been in the living room. 7 You see the picture building up of a number of officers 8 who were under the impression they could go into the 9 living room. Your position is that that would not be 10 acceptable behaviour; that's right, isn't it? 11 A. In terms of the officers themselves, it would be 12 entirely dependent on what direction and instructions 13 they had been given. 14 Q. The system has failed, if I may put it that way, if 15 officers felt they could go into the living room; you 16 would agree with that much, wouldn't you? 17 A. It's difficult for me to comment specifically because, 18 as I say, I have no recollections of being involved in 19 giving any direction as to how the guard was to be 20 maintained. As I've said, for good crime scene 21 management reasons, it's preferable that any intrusion 22 to the house was kept to an absolute minimum. 23 Q. And if we take it the same vein -- I won't go into the 24 detail of it -- but the next morning we have a Constable 25 Margaret Baird, accompanied by PC Johnson, again who page 45 1 went into the scene and remained in the living room. 2 Again, you see that it appears there are a number of 3 officers who were under the impression they could go 4 into the living room and that the position is that 5 something is that really ought not to have happened, to 6 put it that way? 7 A. It was certainly preferable if they had not entered the 8 house, yes. 9 THE CHAIRMAN: Are you about to move to a different subject? 10 MR SMITH: I have one more question on this. 11 In Constable Baird's precognition, and a copy was 12 provided to the Inquiry, she says: 13 "I recollect that Detective Inspector McAllister 14 from Kilmarnock Police Office came to the locus at 15 approximately 9.00 am accompanied by other police 16 personnel. When Mr McAllister arrived at the locus, he 17 instructed my colleague and I should leave the house and 18 carry out our duties outside and not remain in the 19 house." 20 You will appreciate that what Constable Baird is 21 suggesting is that not only were you there but you knew 22 they were in the living room. Are you saying that she 23 must be wrong about that? Are you saying that maybe her 24 recollection is incorrect? 25 A. My recollection is of attending at the house shortly page 46 1 before 11.00 am. I simply have no recollection of 2 attending the house any earlier on the Thursday(?) and I 3 certainly have no recollection of coming across any 4 uniformed officers within the house itself. 5 THE CHAIRMAN: We will rise now until 11.55. 6 (11.35 am) 7 (A short break) 8 (11.55 am) 9 MR SMITH: Mr McAllister, I think I was pointing out to you 10 information that a number of officers were in what has 11 been described as a living room within that house. 12 I take it you agree with me the living room was an 13 area of intense investigation for forensic purposes? 14 That's right, isn't it? 15 A. I think at that stage it's fair to say that the whole 16 house would potentially be an area of intense 17 investigation. 18 Q. That included, didn't it looking for fingerprints on 19 paper items; that's right, isn't it? 20 A. Well, the strategy that was eventually instructed by 21 myself was for a full house fingerprint examination 22 rather than specific areas, yes. 23 Q. Can I ask you to look, please, at the document CO2592 at 24 page 5. If you take it from me this is a precognition 25 statement taken from a James Kerr for the purposes, we page 47 1 understand, of Shirley McKie's trial and it was taken by 2 the Crown. 3 I would like you to look, please, at the middle 4 paragraph just about the middle of the page. I will 5 just read that out: 6 "I am asked about the log officers at the locus. 7 They didn't really have much of a clue of what they were 8 doing. I remember that at one time I saw 'Hello' 9 magazines which had been removed from the lounge of the 10 house of Marion Ross and taken into the porch for the 11 log officers to read. Some of these log officers did 12 not appreciate the seriousness of their task, in my 13 opinion. Sometimes when I went up, and I know Graham 14 McIntyre did not notice this as much as me, log officers 15 were asked to nip over to the garage for crisps or a 16 drink or to use the toilet. In those circumstances, I 17 would just hang around until they got back." 18 I would like to ask you if this is correct, of 19 course, about the idea of Hello magazines being removed 20 from the lounge of the house of Marion Ross and taken to 21 the porch for log officers to read. 22 Have you any comment on that if that took place? 23 A. Well, I have no knowledge of that having happened. 24 Q. Let us assume that did happen. Do you any comment to 25 the propriety of such an approach? page 48 1 A. It should not have happened. 2 Q. One of the difficulties I still continue to have is 3 that, if what I have been putting to you is correct, a 4 number of officers within the living room or lounge, 5 however one describes it, items being removed from the 6 lounge for recreational purposes, if I put it that way, 7 reading magazines, who carries responsibility for that? 8 As you sit here now, if that locus was not being handled 9 as it should, whose responsibility do you consider it 10 is? 11 A. If the locus was mishandled in some way, that's clearly 12 the fault of myself and Mr Heath as the SIO and deputy. 13 Q. I think in your Inquiry statement, Mr McAllister, 14 reading from paragraph 44 just a few lines into it, you 15 say: 16 "Accordingly there was discussion with Serious Crime 17 Squad officers having entered the scene without wearing 18 the appropriate clothing -- this may have been discussed 19 at one of the briefings. The log keeper officer should 20 have declined them entry. However, in fairness to the 21 officer if an experienced detective arrives at the locus 22 the log keeper should record their presence if the 23 detective states that he requires to enter the scene." 24 Can I just understand that. Are these Serious Crime 25 Squad officers recorded anywhere on the log as having page 49 1 entered? Do you wish to see the log? 2 A. Well, without seeing it I couldn't answer the question. 3 Q. The reason I ask is that the implication from your 4 statement appears to be that they should have been 5 logged on the log and I am sure -- it is there before 6 us. Are you able to help us with the entries relating 7 to the Serious Crime Squad officers? 8 A. Well, I can see the front page of the log but that 9 simply covers the first night. 10 Q. It may be there. I am just wondering if it is. It is 11 the way you write in paragraph 44 of your statement, I 12 was reading it to suggest that if it hadn't been entered 13 on the log because the log keeper should have entered 14 their details on it. 15 Do you understand what I'm saying to you? 16 A. The issue with the Serious Crime Squad officers was that 17 they had attended to assist the investigation. I think 18 it was several days after it had commenced. I briefed 19 them verbally to bring them up-to-date with the state of 20 the inquiry and advised them to go to the locus to 21 orientate themselves. There was no intention they 22 should enter the house itself. 23 However, possibly through misunderstanding, I later 24 learned that that's what had happened. 25 Q. You see -- or maybe you don't see, but just to remind page 50 1 you of your statement -- the suggestion that there was a 2 discussion that they entered the crime scene without 3 wearing appropriate clothing. This may have been 4 discussed at one of the briefings. 5 Is that something that you recall? 6 A. I'm afraid my recollection of this is fairly vague after 7 this period of time. I think it became known to me some 8 days after these particular officers had entered the 9 crime scene. 10 Q. I take it with you being, as I put it earlier, the link 11 man with the various organisations, with the 12 Identification Branch -- is that right -- as part of 13 your remit? 14 A. Yes. 15 Q. -- I take it that you would report the fact that 16 officers had been in without wearing the appropriate 17 clothing to the identification branch; is that right? 18 A. If there was a potential for any officers to have been 19 inadvertently left any sort of mark at the crime scene, 20 then clearly it may be necessary to eliminate or to 21 check those officers' eliminations prints against 22 outstanding marks. 23 Q. I'm not sure I got an answer. In your capacity as the 24 link man, as I put it, did you report to the 25 relevant authorities that there had been people within page 51 1 the locus without the appropriate clothing on? 2 A. I may have done but I can't recollect now. 3 Q. The Inquiry has the ability to require all kinds of 4 documents so can you give us an idea if that would be 5 documented if you had reported it? 6 A. I think the Serious Crime Squad officers may be -- I 7 think they are documented on the HOLMES-generated list 8 of all officers who had attended at the scene. 9 Q. Are you saying that that list would have gone to the 10 identification branch, necessarily to SCRO advising them 11 of the identities of other potential individuals who may 12 have left forensic evidence at the scene? Are you 13 saying that that would have been passed on to the 14 appropriate organisations? 15 A. That document? 16 Q. Yes. 17 A. Yes, I hope so. 18 Q. You passed it on, did you? 19 A. I don't recall specifically passing that on. 20 Q. If you didn't do it who would have done it? 21 A. I don't recall doing it personally. The document that 22 has already been shown which lists all of the officers 23 at the scene, I believe, includes the names of the 24 Serious Crime Squad officers, the ones you were 25 referring to. page 52 1 Q. I just want to be clear, Mr McAllister: are you saying 2 it definitely was passed on to forensic, to the 3 identification branch and to SCRO? 4 A. I have no recollection of specifically making reference 5 to Identification Bureau or SCRO of those particular 6 officers. 7 Q. So it may not have been passed on; is that possible? 8 A. I have no recollection; so it's possible, yes. 9 Q. We heard some evidence from Mr Graham Hunter. In his 10 written statement at paragraph 25 he indicated that 11 during the day of 10th January he said he saw Stephen 12 Heath and Bob Lauder inside the house. Bob Lauder was 13 not wearing appropriate protective clothing. 14 Do you know anything of a visit by Bob Lauder and 15 whether or not he was wearing protective clothing? 16 A. No, I don't. 17 THE CHAIRMAN: You know nothing about Mr Lauder being at the 18 scene; is that right? 19 A. Not at all, sir. I had no contact with Mr Lauder. 20 MR SMITH: Was it ever communicated to you, not having seen 21 him there, ever communicated that there was any person 22 within the scene who did not have the appropriate 23 protective clothing, aside for the serious crime 24 officers that I put to you? 25 A. I don't recall any other instances, no. page 53 1 Q. I would just like to ask you this in a general sense: as 2 far as you were concerned, the locus, it was not known 3 where Miss Ross had actually either been killed or 4 assaulted before she died was within in the house. The 5 precise locus, whether it was in the hall, whether it 6 was the bathroom, whether it was in the living room, it 7 just wasn't simply known, was it? 8 A. The actual point of contact between the assailant and 9 Miss Ross, no, could not be established. 10 Q. We can see in the video that what appears to be focussed 11 in on by Mr Moffat at least one spot of what maybe blood 12 near to one of the front doors. It's quite a 13 complicated arrangement, the number of doors, but we 14 have seen -- I think it is fairly obvious -- at least a 15 speck of what may be blood near the front door. Do you 16 recall that at all? 17 A. No. 18 Q. In any event, I take it that all of that house, as you 19 explained, would be important -- particularly the ground 20 floor would be important -- for any forensic purposes. 21 That's right, isn't it? 22 A. Potentially there was very little disturbance within the 23 house to indicate where any significant contact between 24 Miss Ross and the assailant had actually taken place. 25 Q. It could have been taken place anywhere from, as it page 54 1 were, the outside door, the very first door to the 2 screen and garden, as it were, anywhere between there 3 and where she was ultimately found? 4 A. Potentially, there could have been contact anywhere, 5 yes. 6 Q. I think we have seen in the photographs there's a table 7 near the entrance to the premises. 8 Do you remember a table? 9 A. No, I don't. 10 Q. You don't. If there is a table in one of the porches or 11 sun porches or however one describes it, I take it you 12 would agree that that table may be something that could 13 have yielded some forensic evidence that would be of 14 assistance, fingerprints, DNA, blood, all these kinds of 15 things? 16 A. Potentially anything in the house could yield evidence, 17 yes. 18 Q. We have heard evidence which you may or may not accept 19 but we have heard evidence that someone put an overcoat 20 on that table as they arrived at the premises. I take 21 it you would agree that that would be something that 22 would be broadly unacceptable when the locus was to 23 be -- 24 A. That would be poor practice, yes. 25 THE CHAIRMAN: Before you go further, the LiveNote has page 55 1 stopped on mine. (Pause) 2 MR SMITH: I think, Mr McAllister, you indicated that you 3 had some kind of conversation, I think, on 11th February 4 with SCRO about the identity of the mark Y7; is that 5 correct. 6 A. Yes. 7 Q. As far as that is concerned, I think you indicated in 8 your written statement to the Inquiry that it may have 9 been Hugh Macpherson you spoke to in the afternoon of 10 11th February 1997. That is paragraph 97 of your 11 statement. Is that right? Hugh Macpherson being the 12 person, being the one that you recollect being spoken 13 to -- 14 A. Mr Macpherson was my usual point of contact within SCRO 15 so it's likely that it was Mr Macpherson. 16 Q. I think we looked at a statement in the course of today 17 which was for the purposes of the disciplinary Inquiry, 18 the statement you provided. We will try to get that 19 called up for you in a moment. I think the statement is 20 CO2217 if we could have that brought up, please. It is 21 a hard copy document. 22 Just to be clear about it, I think we can see on the 23 front page of this that the date of the statement was 24 taken from the Inquiry, Chief Inspector Wilson, was 25 Thursday 26th June 1997. page 56 1 Do you see that about a third of the way down the 2 page? 3 A. Yes. 4 Q. So it is reasonably contemporary with the events that 5 it's describing that's right, isn't it? 6 A. Yes. 7 Q. On 3 of the statement -- the copy we have goes straight 8 from page 1 to page 3 for some reason, but page 3 we can 9 see in the second paragraph on the page six lines down: 10 "I contacted Mr Hugh Macpherson at SCRO fingerprint 11 section for confirmation of the identification of 12 impression number Y7. I was informed there was no 13 possibility of an error ..." et cetera, et cetera. 14 I take it that your recollection must have been 15 fairly fresh at this time, a few months after the events 16 you are describing? 17 A. Yes. 18 Q. The reason I ask -- I stand to be corrected on this 19 later -- but I think Mr Macpherson's position to the 20 Parliamentary Inquiry was it couldn't have been him 21 because he was unaware of the issue until some weeks 22 after that. 23 Against that background, are you still reasonably 24 sure that it was Mr Macpherson you spoke to on that 25 date? page 57 1 A. No, I'm not sure. At the time Chief Inspector Wilson 2 has noted this statement, clearly I must have been 3 reasonably sure it was Mr Macpherson himself that I 4 spoke to as opposed to one of his staff. 5 Q. Can I ask arising from that whoever told you that Y7 was 6 identified as belonging to Shirley McKie you, as you've 7 explained, spoke to her and discussed it with her; 8 that's right, isn't it? We had some evidence from 9 Mr Heath that the discussion was very loud, from the 10 point of view Shirley McKee was loud, she was denying 11 very vociferously the fact this could not have been her 12 fingerprint. 13 Is that your recollection of her position when it 14 was raised with her? 15 A. No, no, it was not vociferous. I'd probably call it 16 professional and she was adamant that clearly it was not 17 her print -- well, she was adamant that she'd not been 18 within the house but I certainly wouldn't describe her 19 attitude as vociferous. 20 Q. You see, I think in fairness just to put the detail of 21 the evidence Mr Heath's position was he thought that her 22 position was unprofessional because of the noise she was 23 making about it and was effectively becoming quite 24 public within the office rather than the fact she was 25 denying it. page 58 1 Do you follow the difference that he was trying to 2 draw? 3 A. When I dealt with the matter in speaking to Shirley, it 4 was professional notwithstanding her own position. 5 There may have been -- I believe there were actually 6 some further discussion within the office concerning the 7 elimination of Shirley's print but I don't recall being 8 there myself. I don't recall hearing anything 9 vociferous. 10 Q. I think you were aware she was interviewed on many, many 11 occasions, I think we have 13 occasions when she was 12 actually interviewed over the period of time right up 13 through the disciplinary process, up to the point, no 14 doubt, when she had been charged relating to this 15 matter. 16 You will understand her position has been 17 consistent, "I couldn't have been in because it's not my 18 fingerprint", is her position now of course but her 19 position was "It can't be that I was in the locus". 20 Now do you have any comment yourself about the 21 number of times she was interviewed on her denial, as it 22 were? Do you think that's surprising or that's 23 perfectly reasonable to be interviewed so many times? 24 A. I think the only comment I could possibly pass is 25 Shirley's position has been consistent throughout. page 59 1 THE CHAIRMAN: I am still having a problem with my 2 LiveNote -- (Pause) 3 MR SMITH: I think we heard some evidence from Mr McMenemy, 4 the former Procurator Fiscal, and he suggested in his 5 knowledge when he actually interviewed Shirley McKie -- 6 and this is on page 39 of his evidence -- he said: 7 "Officers, in fact, who I believe had been 8 supportive of her to begin with basically had withdrawn 9 from her and she was feeling very, very alone and 10 isolated. I can understand that." 11 Can I ask whether that is a sentiment you agree with 12 as far as the way she was being treated while she was 13 within the offices? Do you agree with that? 14 A. My contact at that time with Shirley was very, very 15 limited indeed and I certainly didn't have enough 16 contact with her to be able to pass comment on that 17 suggestion. 18 Q. We also understand from Shirley McKie's position in 19 February 1997 a DI Karen MacDonald went round to her 20 home bringing her a bunch of flowers, a bottle of wine 21 and a box of chocolates and she spent three hours trying 22 to persuade Ms McKie to speak what she described as the 23 truth. 24 Were you aware of that visit, either before it 25 happened or after it happened? page 60 1 A. I became aware at some later stage that Karin McDonald 2 had visited Shirley at home but not at the time. 3 Q. Were you in any way involved in asking her to go round? 4 A. No. 5 Q. I would like to ask you one matter about the questions 6 that were put to you concerning Les Brown and I think at 7 the end you were asked whether you know or not whether 8 Shirley McKie was in the locus and I think your response 9 was you don't know. 10 You will understand that fingerprint Y7 is hotly in 11 dispute, as far as we understand it. Leaving that 12 aside -- leaving that aside -- I take it that you 13 actually have no evidence in fact that she was in the 14 locus, do you? 15 A. No, I have no evidence that Shirley was within the 16 locus. 17 Q. I would like to ask you some questions about the 18 production that was given in this morning and kindly 19 provided as headed up "ACPOS". I am not sure we have a 20 number for it but it is the memorandum that is attached 21 to it. 22 THE CHAIRMAN: This is the one with "ACPOS" -- 23 MR SMITH: It is, sir. There are a number of items attached 24 to it. It is the second of the pages. 25 I think, Mr McAllister, you have explained how this page 61 1 came to be prepared and it was really in response to the 2 interview that took place by the Mackay Robertson 3 Inquiry and you decided you should report to Detective 4 Chief Superintendent Malcolm about the position. 5 First of all, can I ask why was it going to 6 Detective Chief Superintendent Malcolm? Is he your 7 ultimate boss or something; is that how it worked? 8 A. Effectively yes. 9 Q. Of course he has been involved, as we have seen, at the 10 locus where the crime actually occurred. 11 A. Yes, it had been in a different role. Just for clarity, 12 at the time of this report he had been promoted to 13 Detective Chief Superintendent Malcolm and was the most 14 senior CID officer within Strathclyde Police. 15 Q. In a different role he is being reported to here than 16 when he was involved in the original Inquiry? 17 A. A different role. 18 Q. I take it you were aware that he actually was there when 19 Shirley McKie was arrested? Were you aware of that. 20 A. I am aware. 21 Q. I guess he would have been in a different role there, an 22 arresting officer as opposed to, an investigating 23 officer as opposed to somebody things were being 24 reported to? 25 A. Yes, I believe at the time of Shirley's arrest he was page 62 1 still in his area detective superintendent role for all 2 of Glasgow and Ayrshire. 3 Q. Just being straight forward about it he, as it were, 4 moved to different roles at different times? 5 A. Yes. 6 Q. And he had different responsibilities relating to this? 7 A. Yes. 8 Q. The memorandum which you have prepared makes it very 9 clear that you dispute the position adopted by Mr Moffat 10 insofar as he was saying that you indicated that the 11 print may have belonged to a police officer. That is 12 one of the things that is disputed. I have got that 13 right, haven't I? 14 A. Yes, absolutely. 15 Q. But also you are fairly disparaging about Mr Moffat's 16 recollection in general. Can I ask you to look at the 17 second page of the memorandum. 18 You refer in the second last paragraph after the 19 numbered paragraphs immediately following that there's 20 one that says: 21 "The apparent account of the events on Thursday 22 2,030th January 19 'as stated by Mr Moffat to Tayside 23 Police causes me concern in that he attributes remarks 24 to me which may be taken to infer they have had some 25 level of prior knowledge of the identification of mark page 63 1 Y7. That is simply not the case." 2 You say: 3 "I have not spoken to Mr Moffat with regard to his 4 recollections and I have no idea why he has given 5 information which I know to be false. There may also be 6 professional concern that an officer of Strathclyde 7 Police has given information to an outside enquiry which 8 is erroneous." 9 Can I be clear about this: at this stage had you 10 spoken to Gary Gray before making this memo? 11 A. No. 12 Q. Can I ask why not? 13 A. It wasn't my position to speak to Detective Constable 14 Gray. 15 Q. I am wondering -- 16 A. If I may continue to answer that question, at this time 17 my home division was Paisley and Renfrewshire and I had 18 no responsibility at all for DC Gray. 19 Q. I'm just looking at numbered paragraph 3, for example, 20 you say in the second sentence: 21 "With regard to mark Y7, at no time was any 22 reference made by either Mr Moffat or myself to the 23 possibility that it had been made by DC Gray or any 24 other officer." 25 Did you not think it prudent perhaps to at least page 64 1 take steps to speak to Gary Gray and find out whether he 2 recollected anything? 3 A. It would have been inappropriate for me to have directly 4 involved myself at that stage; hence my report to the 5 head of CID in the Force. 6 Q. Are you saying there is no possibility that you are 7 wrong about the evidence of Mr Moffat that's identified 8 here? You are right and he is wrong; is that the 9 position? 10 A. Mr Moffat's information as conveyed to me by Tayside 11 police officers is completely erroneous. 12 MR SMITH: Can I have just one moment, please. (Pause) 13 I have no further questions thank you, sir. 14 THE CHAIRMAN: Miss Grahame, do you have any application? 15 MISS GRAHAME: No, thank you. 16 MR MACPHERSON: No, thank you. 17 THE CHAIRMAN: Is there any re-examination? 18 Re-examined by MISS CARMICHAEL 19 Q. I have one question simply to clarify a matter. 20 I wonder if we could look at page 5 of SG3507, 21 please. Mr Smith asked you some question about Serious 22 Crime Squad officers and I think you were at that point 23 looking only at the first page of this document and you 24 indicated you couldn't see anything there. We are 25 looking at page 5 of the same document. page 65 1 Is there anything that helps you identify the 2 presence of Serious Crime Squad officers on this sheet 3 and, if so, can you tell us roughly where it is on the 4 page? 5 A. Yes. There are several references to officers who were 6 then attached to the Serious Crime Squad rather than to 7 the police division at 13.05 DC Quay -- DC Park and DC 8 Quay and immediately above that Detective Sergeant 9 Crawford. I'm not sure about DC Wright but Crawford, 10 Park and Quay were officers of the Serious Crime Squad. 11 Q. If we look at just the first four entries which seem to 12 be bracketed together on the page, we see is it 13 Detective Superintendent or Sergeant I can't make it 14 out? 15 A. Sorry, I suppose I should have started at the top of the 16 page. 17 Q. It is maybe my fault, I should have made taken you 18 there, DC Wright and DC Quay, and I think it 19 says "Serious Crime Squad" next to the bracket; would 20 that be correct? 21 A. Yes, that was the team of Serious Crime Squad officers 22 on Friday, the 10th. 23 Q. It looks as if they are arriving at perhaps about 12.50 24 in the afternoon on Friday 10th January if we take what 25 is recorded here as correct? page 66 1 A. Yes. 2 Q. You have just pointed us, I think, slightly further down 3 the page to the same four officers leaving at 13.05 and 4 if we perhaps travel down the page again a little 5 further to 13.20, I think we again have DC Park and Quay 6 at locus? 7 A. Yes. 8 Q. And at 13.30 DC Park and Quay leave locus. 9 A. Yes. 10 Q. So it may be that if there have been Serious Crime Squad 11 officers present that would have been a record of their 12 evidence? 13 A. I would think so, yes. 14 MISS CARMICHAEL: Thank you for clarifying. 15 THE CHAIRMAN: Can I ask you just one -- if you could help 16 me about the security of the locus. Obviously, as you 17 are not going to be there all the time and when there is 18 a major crime the police usually tape it off, the scene, 19 and I think that was done in this case because one of 20 the witnesses said that's how he discovered which house 21 it was -- 22 A. Yes. 23 THE CHAIRMAN: -- because he saw tape. But do you -- and I 24 understand you are accepting the responsibility for the 25 security lies with you and Mr Heath -- but actually in page 67 1 practice if the buck ends with you, so to speak, to whom 2 do you delegate or expect that to be, the scene to be 3 maintained. 4 A. My own practice, sir, as a Senior Investigating Officer 5 myself, would be to delegate that task to one of the 6 local uniformed supervisors, either a local sergeant or 7 local inspector and -- depending upon the seriousness of 8 the investigation -- and to simply give them 9 instructions about what level of security was required 10 and for that matter whether cordons were required and 11 how likely those would be put in place and, thereafter, 12 it would be a matter for that uniformed supervisory 13 officer to take the necessary steps to carry out Senior 14 Investigating Officer's instructions. It's not 15 something that a senior detective would be hands-on 16 with. 17 THE CHAIRMAN: I presume you have no recollection of to whom 18 you gave the instruction? 19 A. I'm afraid I have no recollection now of giving any 20 direct instructions at all on the night. 21 THE CHAIRMAN: I appreciate this is early January and you 22 are asked -- not you but officers are being asked -- to 23 stay outside, but I would have thought that one of the 24 dangers is not only of going into the living room but 25 also that, human nature being what it is, curiosity page 68 1 might have taken people a little further even than that. 2 So there are really quite serious risks involved in 3 people who do not need to be at the scene being there at 4 all. 5 A. Yes. As I've said, sir, given the potential for 6 forensic recovery of evidence and potentially for 7 identification of the perpetrator, our practice is -- 8 and nowadays they are more stringent than they were in 9 1997, but our practices are firmly focused on control of 10 a crime scene and recording every action that's taken at 11 that crime scene. 12 Police forces in Scotland now have available to them 13 standard documentation and practices endorsed by ACPOS, 14 the Association of Chief Police Officers in Scotland, 15 that simply did not exist in 1997. 16 THE CHAIRMAN: It may be when I come to look at 17 recommendations that this is something that I may need 18 to discover more about what the current practice is, 19 but, as I understand it, from an earlier witness there 20 is now someone called the Crime Scene Manager -- 21 A. Oh, yes -- 22 THE CHAIRMAN: -- who has authority to ensure that things 23 don't happen that ought not to happen. 24 A. Absolutely, sir. The role of Crime Scene Manager is a 25 role that did not exist in 1997. It's a very formalised page 69 1 and structured role. Officers from all forces in 2 Scotland receive very intensive training at the Scottish 3 Police College before they are allowed to perform that 4 role. They have to show a level of competence at 5 training. In practice, it means that those officers 6 will control the crime scene or crime scenes as we would 7 tend to think of nowadays. They will control all the 8 crime scenes and they will control level of access, even 9 to experts such as the forensic scientists and 10 biologists and fingerprint experts. I think it's fair 11 to say that the position nowadays bears little 12 resemblance to where we were 12-year ago. 13 THE CHAIRMAN: Just one last thing: the actual log keeper, 14 has the log keeper 12 years ago, did he or she have 15 authority to say to someone, "You are not coming into 16 this scene"? 17 A. The log keeper should have received direct instructions 18 about who was to be allowed to have access to the scene 19 and he should be making it clear to any officers that 20 turned up what their instructions are in terms of the 21 access. For example, it wasn't uncommon in years gone 22 past for local senior officers to wish to enter a major 23 crime scene to perhaps satisfy their own professional 24 curiosity and quite often rank would be pulled for that 25 to take place. I'm comfortable in saying today that page 70 1 that simply wouldn't happen, despite the rank of the 2 officer who attends. 3 THE CHAIRMAN: 12 years ago for a constable to tell a senior 4 officer that he is not entering a crime scene I would 5 have thought was difficult. 6 A. It could be difficult, yes. 7 THE CHAIRMAN: Thank you very much indeed. Thank you for 8 your assistance. 9 (The witness withdrew) 10 The next witness, I think, is Mr Hogg, isn't it? 11 MISS CARMICHAEL: Yes, sir. 12 THE CHAIRMAN: And that will take some time. 13 Mr Russell, do you wish us to proceed with Mr Hogg? 14 It would seem to me this might be your opportunity. 15 MR RUSSELL: I think that's right. Malcolm Ross will speak 16 personally. 17 THE CHAIRMAN: Mr Ross, if there is something you wish to 18 say, if you would like to do so please feel free. 19 MR ROSS: Thank you, sir. Please forgive me if I'm a little 20 bit hesitant; this is an alien situation for me. My 21 appearances in court surroundings have been limited up 22 to now. 23 My name is Malcolm Ross and Marion Ross was my 24 cousin and I represent her here. Marion was a very 25 traditional lady who doted on her mother and had some of page 71 1 her mother's mannerisms. She found it very difficult to 2 deal with life after her mother died and that was 3 further aggravated by the death of her father a year 4 later. 5 Marion became semi-reclusive and her world narrowed 6 right down to a simple set of routines that helped her 7 to feel safe in her own surroundings. 8 You can imagine then a winter evening just at the 9 start of New Year where there's a knock on the door and 10 what follows is a mixture of fear and terror being 11 closed in by somebody that you trust to come into your 12 own home and the unimaginable pain of a vicious stabbing 13 and no-one around to help. That wasn't the end, really, 14 that was the start of a systemic series of failures in 15 the Scottish system of justice and it started really 16 just hearing about the small errors of organisation by 17 the police and how we heard on numerous occasions that 18 the security of the murder scene was flawed, to say the 19 absolute least. 20 Then there was the potentially minor issue 21 concerning a police officer leaving a mark where she 22 shouldn't have been. That was manipulated and 23 mismanaged into a situation that had an appalling 24 impact. 25 Then into the higher echelons of the legal system, page 72 1 with the disgraceful failure of senior law officers to 2 request a retrial of the man that was originally 3 convicted of Marion's murder. 4 Some years later the chain of events went even 5 further up the tree when developments in DNA led to a 6 piece of evidence that had been kept since the original 7 trial of David Asbury, that piece of evidence had blood 8 on it and there was a request made for a DNA examination 9 with DNA technology being much better several years on. 10 That evidence was originally lied about and then 11 subsequently claimed to have been lost. A request for 12 the log of the status of that piece of evidence to be 13 produced which had a deadline on it and a matter of 14 hours before that deadline the then Lord Advocate of 15 Scotland resigned. 16 All of those issues shows the probity of Scottish 17 justice being in absolute tatters and that's 18 predominantly due to not the Executive but to the 19 lawyers in the process. 20 After a number of years now when one has tried to 21 rehabilitate this system of justice and decided that a 22 public inquiry would be the solution and that is this 23 Inquiry. Who would they choose to run an Inquiry to 24 look into a lack of confidence that has been caused by 25 lawyers? Well, it's run by more lawyers and you could page 73 1 not really make it up, could you? 2 What of this Inquiry, I have not been able to take 3 part in this Inquiry because the Inquiry team of lawyers 4 will not release any evidence without a signed 5 non-disclosure agreement. Why should a public Inquiry 6 need a non-disclosure undertaking? It's supposed to be 7 public. It's declared to be open. 8 The non-disclosure requirements were so broadly 9 drawn that required at the end of the Inquiry that all 10 documentation and all copies of all documentation are 11 surrendered back up to the Inquiry; so people wouldn't 12 even have rights to their own submissions. Despite 13 numerous requests from me and Mr Russell, for reasons 14 for these secretive requirements, nothing was 15 forthcoming and we refused to sign them. Even now at 16 this stage published materials appearing on the website 17 have had sections blacked out so that we, the public, 18 can't see it. I remind you again this is supposed to be 19 a public Inquiry. 20 Lawyers have an arcane term for this blanking out. 21 They call it redaction but I suspect the rest of us have 22 a much simpler word for it which is censorship and what 23 part can that have to be in an open and honest public 24 inquiry? 25 After a secret and a shambolic process the Inquiry page 74 1 decided to appoint an expert to advise it on fingerprint 2 issues and the person selected has strong links with an 3 organisation whose members have tried to pervert the 4 course of this Inquiry. As if that weren't enough that 5 adviser admits that he is not an expert fingerprint 6 practitioner yet he will be able to give guidance to the 7 Inquiry which isn't the subject of examination by 8 anyone. 9 The only assumption from all this that a reasonable 10 person can make is that the legal team and the Inquiry 11 are making concerted efforts to protect certain people 12 and that that is being done in order to steer the 13 Inquiry towards a particular predetermined outcome. So 14 where does that leave us? It seems clear that the 15 lawyers' careers and reputations are more important than 16 the truth. My cousin's dead, her murderer has still not 17 answered for his crime and he walks the streets of 18 Scotland. 19 I don't know what that does for a system of justice 20 in Scotland. Thank you. 21 THE CHAIRMAN: Mr Russell? 22 MR RUSSELL: Thank you, sir. I appear pro bono for two Core 23 Participants, Malcolm Ross and Peter Swann and two 24 witnesses, Martin Leadbetter and John Berry. With 25 regard to the statements, I emailed Ann Nelson, page 75 1 Solicitor and Secretary of the Inquiry, on 2 8th June 2009. My position was I said I was denied 3 access to all documentary evidence provided to the 4 Inquiry and to the witness statements taken by the 5 Inquiry team. 6 The Inquiry's refusal to grant me access to such 7 material and, indeed, to the Core Participants database 8 is ostensible founded upon my refusal to sign the 9 required confidentiality undertaking. 10 Such refusal is also maintained by those Core 11 Participants and witnesses represented by me. Our 12 refusal to submit to gagging agreements does not require 13 further justification by me. 14 Be that as it may, the terms of the confidentiality 15 agreement are oppressive and entirely contrary to the 16 public interest. 17 If, therefore, the Chairman wished to know why I did 18 not elect to make an opening statement last week then my 19 answer is, of course, that I had no access to nor 20 knowledge of any evidential material, witness statements 21 or issues to enable me to make such a statement. Having 22 read the available transcripts I now wish to make a 23 statement. It would be inappropriate to call it an 24 opening statement. It might more accurately be termed a 25 statement of issues, the position and reply. There are page 76 1 matters arising from the opening statements which 2 require our response. Our position on confidentiality 3 should also be placed in the public domain. Indeed, I 4 have a duty to ensure that our absence from the hearings 5 is not misinterpreted by anyone, particularly the McKies 6 and their supporters. 7 In a letter of 26th February 2009 Ann Nelson wrote 8 to me stating: 9 "The term that you wish me to repeat the Crown 10 Office released their file to the Inquiry on the basis 11 that it was subject to an obligation for confidentiality 12 and, therefore, we were required to impose the same 13 obligation upon others. The requirement was not imposed 14 on the instigation of the Inquiry but of the Crown 15 Office." 16 That is unacceptable to us. Further we cannot 17 accept the redaction of documents and statements. We 18 ask Crown Office to withdraw its obligation of 19 confidentiality or what we call gagging order upon the 20 material provided to the Inquiry. We also call upon 21 Crown Office to find the material which they say is 22 missing and we don't believe the explanation provided by 23 Crown Office. 24 Peter Swann has made a Criminal Justice Act 25 statement on 3rd June 2009. Mr Swann made that page 77 1 statement without any contribution from lawyers or third 2 parties. It is his statement and his alone. That 3 statement is not in Mr Swann's evidence-in-chief to the 4 Inquiry but simply a Criminal Justice Act statement made 5 in order to exhibit 18 fingerprint charts and related 6 material and if I may at this stage, sir, take the 7 opportunity to hand up some exhibits to the Inquiry. 8 THE CHAIRMAN: Just let us get this quite clear. This is 9 not an opportunity for you to introduce evidence to this 10 Inquiry. I am giving you an opportunity to make what I 11 understood was a statement about issues. I permit you 12 to do that. If you wish to adduce evidence, then it 13 will have to be done in the proper way by making it 14 available to the Inquiry like everyone else has done and 15 I don't see why you should be treated as a special case. 16 MR RUSSELL: We're not a special case, sir. We are making 17 our evidence available to the Inquiry now, our first 18 appearance before the Inquiry. We are making evidence 19 available to the to the Inquiry in circumstances where 20 because of our decision not to sign confidentiality 21 undertakings or gagging orders we have no justification 22 to see any material lodged by anyone else until it is 23 lodged. 24 THE CHAIRMAN: I wish you wouldn't use emotive phrases like 25 "gagging" because it is quite inappropriate coming from page 78 1 someone with your experience and, I would have hoped, 2 your understanding of the reason why the Inquiry, like 3 many other inquiries, has approached this topic in the 4 way that it has. 5 MR RUSSELL: I do not accept the explanation given. The 6 explanation given by Mrs Nelson, the obligation was 7 imposed by Crown Office, so I am asking that Crown 8 Office withdraw that obligation. 9 THE CHAIRMAN: Let me make it clear it is also -- and I am 10 subject to correction but I understand it was made clear 11 to you that in due course the information would be 12 forthcoming. 13 The reason -- if I can interrupt you -- is so you 14 can understand, and I hope that Mr Ross can too, that 15 the reason that an undertaking was asked was this: the 16 Inquiry wished to make available for two reasons all the 17 material, that of proceedings, to Core Participants. 18 That would be, first of all, so they can prepare 19 properly in due course for the Inquiry but, secondly, so 20 that they can suggest lines of inquiry. 21 Now in that material there may be material that, for 22 good reasons in law, should not be disclosed in public. 23 If it was handed to the Core Participants without any 24 form of undertaking, then the result would be that they 25 would be at liberty to publish information that was not page 79 1 and should not by reason of law be in the public domain. 2 Now, if, as I say, that happened, then people's 3 rights would have been invaded. As it is, the Inquiry 4 has been proceeding in my view in a satisfactory way 5 and, indeed, we have had an example where this has 6 happened and where as Mr Ross refers to items as being 7 redacted, to use the phrase which lawyers use or blacked 8 out which he referred to, that is because, as a matter 9 of law, I take the view that there is good reason why 10 they should not be made public. 11 It could be because they are irrelevant to the 12 Inquiry and prejudicial. That would be one perfectly 13 good reason and I would have thought it was right that 14 everyone should be in a position to protect the interest 15 of others. 16 Now that is the reason that this course is adopted. 17 Everything that should be in the public domain goes in 18 the public domain and if you have the difficulty that 19 you have had it has been because of your refusal to give 20 the undertaking which, as I say, I regard as necessary 21 if people's rights are to be protected. 22 Now, I hope that makes clear the reason for the 23 course that has been adopted. 24 MR RUSSELL: Which I entirely reject, sir. This Inquiry 25 originates from a 51-year old spinster being murdered in page 80 1 her home. You refer to people's rights being invaded 2 because documents might be published. I absolutely 3 could not care less about that, sir. We're concerned 4 about the rights of Marion Ross having been invaded by a 5 man who murdered her. 6 THE CHAIRMAN: Of course the rights of Miss Ross are 7 important and essential but so are the rights of other 8 people. 9 MR RUSSELL: No they are not, sir. 10 THE CHAIRMAN: Well, that is a matter for you. Please move 11 on. 12 MR RUSSELL: I am doing, sir. 13 In this Inquiry we have red herrings being planted. 14 Mr Smith has done it with references to mysterious 15 figures passing Marion Ross' house, a man called 16 Docherty and whether he was a tie or whether he had been 17 properly eliminated. This is the campaign that has gone 18 on for year after year after year. 19 David Asbury is a Core Participant before this 20 Inquiry. Is he asking for confidentiality? If he is, 21 let him say so. Shirley McKie, Core Participant: is she 22 asking for confidentiality of sensitive material, her 23 rights are being invaded? If she is, let her say so. 24 If people are wanting to be protected before this 25 Inquiry let them say so. We have no respect for such a page 81 1 position. 2 Our position is that we are here to put it all on 3 the tape. I can understand your saying, sir, as I have 4 seen on the transcripts, "there are sections of 5 Mr Heath's witness statement which are not relevant to 6 my Terms of Reference". Now, that is an issue which 7 means that it may not have to be explored, even those 8 matters resulted from questioning by the Inquiry legal 9 team. 10 If that is the position, then quite simply those 11 issues are not addressed before the Inquiry but, 12 nevertheless, they are published or should be published 13 on the website. What you are doing is saying that this 14 material should immediately be redacted, it's 15 prejudicial. How can it be prejudicial? David Asbury 16 says "I'm innocent. I didn't murder Marion Ross." Why 17 are we excluding the DNA? Why are we excluding material 18 which goes to prove the guilt of Mr Asbury? Is 19 Mr Asbury asking for protection before this Inquiry? If 20 so, let us hear it -- 21 THE CHAIRMAN: Because it doesn't come within my Terms of 22 Reference -- 23 MR RUSSELL: -- on the basis of quite simply a blanket of 24 confidentiality which I do indeed call gagging because 25 it is entirely inappropriate. After the brutal murder page 82 1 of Marion Ross, here we are in 2009, the opportunity of 2 addressing these issues, bringing it all out into the 3 open and instead we have teams of lawyers who spend 4 their time dissecting statements and deciding which 5 material should be withheld from the Scottish public. 6 That is an appalling disgrace. 7 Now I say I appear here pro bono. I do not take a 8 penny from this Inquiry. I have just paid £4,500 to 9 West Yorkshire Police to prepare those fingerprint 10 charts which you declined to accept. They were prepared 11 by West Yorkshire Police so they might be authenticated 12 and not subject to challenge before this Inquiry. We do 13 not ask for any funding before this Inquiry; we are 14 simply interested in the truth. 15 Now, you have indicated, sir, that you have no wish 16 to hear anything concerning what I was about to say on 17 behalf of Peter Swann. You say it's a matter of 18 evidence in which event you invite me to move on. What 19 I was simply going to do was explain that you had before 20 you, had you have accepted them, a sequence of 21 fingerprint charts, the first of which were prepared for 22 the Scottish Parliament, the second of which have been 23 prepared by us, by West Yorkshire Police at our expense, 24 to assist this Inquiry. 25 I would have taken you through what those exhibits page 83 1 were, which would have been entirely appropriate. I 2 have listened and -- 3 THE CHAIRMAN: All I am objecting to is I don't want them 4 handed up to me in the middle of this hearing. If you 5 want someone to come along and give evidence about that, 6 then make that known to the Inquiry and -- please let me 7 finish if you could -- and that would then give a proper 8 opportunity for the matter to be introduced before the 9 Inquiry. 10 MR RUSSELL: Sorry, sir, have you finished? But why ever 11 would you not accept primary important evidence from 12 whatever source at whatever time? They are fingerprint 13 charts which will assist this Inquiry. They can be 14 handed up now or, if you don't want them, they can 15 remain on the floor or I can take them away -- 16 THE CHAIRMAN: This is a serious matter. 17 MR RUSSELL: It is immensely serious -- 18 THE CHAIRMAN: I would like to remind you that there is a 19 proper way of doing things. Make it available to the 20 Inquiry and it will be dealt with. If there is a 21 witness to these documents, the person can be called. 22 All I am saying is I don't want them introduced in the 23 course of your address without an opportunity for the 24 background to the documents and so on to be considered. 25 MR RUSSELL: Considered by whom, sir? Your Inquiry team page 84 1 whom for reasons that are well known to you I have no 2 confidence -- 3 THE CHAIRMAN: That is a matter entirely for you. I am a 4 member of the Inquiry team. I head the Inquiry team. 5 If you don't have confidence that's too bad but that's 6 the way it will have to be introduced. 7 MR RUSSELL: In his opening statement to the Inquiry Gerry 8 Moynihan reported that a witness Les Brown, a retired 9 Detective Chief Inspector, Strathclyde Police: 10 "... makes an allegation that Ms McKie committed 11 perjury at the perjury trial." 12 Mr Moynihan stated: 13 "It must be stressed that this is an allegation made 14 by Mr Brown and that Counsel to the Inquiry has reached 15 no conclusion in relation to that." 16 However, that is not, as Mr Moynihan states, simply 17 an allegation made by Mr Brown. It was in fact a formal 18 substantive and documented report that was lodged by me 19 with the authorities in Scotland. 20 On 21st March 2005 I wrote to the office of the 21 Solicitor to the Scottish Executive duly citing the 22 approved official transcripts in the proceedings of Her 23 Majesty's Advocate v Shirley Jane McKie a/k/a Cardwell. 24 By reference to Shirley McKie's cross-examination by the 25 Advocate Depute on 11th May 1999, when her evidence was page 85 1 on sworn oath, I specifically urged that she committed 2 perjury. I gave full particulars. 3 On 6th July 2005 I lodged a formal complaint with 4 William Gallacher, the then district Procurator Fiscal. 5 I gave the Procurator Fiscal a summary of the false 6 averments against the SCRO fingerprint experts in the 7 Court of Session civil action. I then provided 8 Mr Gallacher with pages 86 to 89 of the official 9 transcripts of the hearing on 11th May 1999 in Her 10 Majesty's Advocate v Shirley Jane McKie a/k/a Cardwell. 11 That was entitled: 12 "Identification of false statements made by Shirley 13 McKie whilst on sworn oath under cross-examination by 14 the Advocate Depute". 15 In my report to Mr Gallacher on 6th July 2005, I 16 stated: 17 "In the Court of Session proceedings being pursued 18 by Shirley McKie cites and places reliance upon her 19 acquittal in her perjury trial. However, the pursuer 20 made no less than five false statements whilst 21 undergoing cross-examination on 11th May 1999 by the 22 Advocate Depute. In this connection I attach an extract 23 from the transcript of evidence upon which the five 24 false statements have been advanced. Ms McKie, whilst 25 on sworn oath, repeatedly denied having knowledge of any page 86 1 other fingerprint expert having examined exhibit Y7 on 2 her behalf prior to Pat Wertheim. However, Ms McKie had 3 full knowledge that her retained fingerprint expert 4 Peter Swann had inspected exhibit Y7 prior to 5 Mr Wertheim." 6 I provided Mr Gallacher with a chronology supporting 7 and corroborating undertaking the correspondence and 8 documentation. 9 In his opening statement to this Inquiry Andrew 10 Smith on behalf of Shirley McKie -- 11 THE CHAIRMAN: Can I interrupt you again. What exactly is 12 the point you are wishing to make because obviously this 13 is something that will have to be explored in the course 14 of the Inquiry. 15 MR RUSSELL: I am making an opening statement, sir. 16 THE CHAIRMAN: I am asking you -- well, I think you said a 17 few moments ago it wasn't an opening statement. All I 18 am asking is what is the point because it seems to me 19 this is something that will definitely have to be 20 explored. 21 Do you not want it explored or what is it you are 22 seeking to ask me to do? 23 MR RUSSELL: These are matters which should be in the public 24 domain now. 25 THE CHAIRMAN: Yes, well, I have no doubt this will be in page 87 1 the public domain -- 2 MR RUSSELL: These are matters which I was wanting to, in 3 respect of Mr Moynihan's opening, where he attributes 4 these matters to Les Brown -- 5 THE CHAIRMAN: Yes, but -- 6 MR RUSSELL: -- these are matters that should have been 7 dealt with in Mr Moynihan's opening but were not. 8 THE CHAIRMAN: He certainly raised the topic. 9 MR RUSSELL: That's all. 10 THE CHAIRMAN: Yes. Well, it's a matter I can assure you 11 that will be explored in the course of the Inquiry. 12 MR RUSSELL: No, sir, because Mr Moynihan has chosen to 13 present in his opening statement to this Inquiry an 14 account with a bias which is entirely inappropriate. He 15 has given an account of events which I do not recognise. 16 Now, do I not have the right to challenge that? I say 17 that I do. His account is entirely inappropriate. 18 Now I go on and say why is it inappropriate and that 19 is my challenge which I maintain again that Jerry 20 Moynihan QC did not disclose that he was Her 21 Majesty's Advocate Depute in the proceedings of Her 22 Majesty's Advocate v Shirley Jane McKie a/k/a Cardwell. 23 I raised that as a matter of gross bias and I've raised 24 it before. It is a profound matter of concern that in 25 England it is recognised as a gross conflict of interest page 88 1 that should have been disclosed. It was not disclosed. 2 THE CHAIRMAN: I am afraid I may be completely lost but I 3 didn't understand it was the case of McKie. 4 MR RUSSELL: I am responding, sir -- 5 THE CHAIRMAN: It was the case of Asbury that Mr Moynihan -- 6 MR RUSSELL: I beg your pardon Her Majesty's Advocate v 7 David Asbury. That was my mistake, I apologise for 8 that. 9 THE CHAIRMAN: This might be a convenient moment to rise at 10 1.00 and I will resume at 1.50. 11 (1.00 pm) 12 (Luncheon Adjournment) 13 (1.52 pm) 14 THE CHAIRMAN: Mr Russell, if you continue. 15 MR RUSSELL: Sir, I just corrected myself in referring to 16 Gerry Moynihan's gross conflict of interest in the 17 proceedings of Her Majesty's Advocate v David Asbury. 18 In his opening statement to this Inquiry, Andrew Smith 19 QC on behalf of Shirley McKie, Ian McKie and David 20 Asbury, stating: 21 "The conduct of Peter Swann" -- 22 THE CHAIRMAN: I think the stenographer is having a little 23 difficulty picking you up. 24 MR RUSSELL: "The conduct of Peter Swann must also be 25 considered in this Inquiry with the utmost care. His page 89 1 support of SCRO was critical to them and had a bearing 2 on the decision not to prosecute the experts. We have 3 prepared a comprehensive analysis of Mr Swann's actions 4 for the attention of the Inquiry that will be submitted 5 shortly." 6 Sir, for our part we have to assume that at long 7 last Shirley McKie has remembered Peter Swann's role as 8 her defence fingerprint expert in the proceedings of Her 9 Majesty's Advocate v Shirley Jane McKie a/k/a Cardwell. 10 I say that having regard to the written submission 11 made in April 2006 on behalf of Shirley McKie signed by 12 Andrew Smith QC, Alistair Duncan, Gordon Dalyell, 13 (inaudible), Ms McKie's lawyers. They declared 14 collectively: 15 "We also wish to make it clear that it is our 16 client's, Shirley McKie's, position she did not lie in 17 court as has been suggested by Swann and Russell." 18 They also said: 19 "The pursuer advises us, and we have no reason to 20 doubt this, that she was not aware of the opinion of 21 Swann on the matters that she was asked about. At all 22 material times her father was being advised of the 23 developments and not all matters were communicated to 24 her." 25 However, a claim by Mr Smith, Mr Cassells, page 90 1 Mr Dalyell that Shirley McKie was not aware of the 2 opinion of Swann on the matters she was asked about was 3 patently false. 4 In a letter dated 1st February 2005 Iain McKie 5 referred to his statement in July 2000 in connection 6 with the Tayside Police investigation under Deputy Chief 7 Constable James Mackay in which he, Mr McKie, stated 8 that: 9 "The week after Peter Swann examined the exhibits to 10 include mark Y7 at the High Court of Judiciary, Glasgow 11 which was on 2nd March 1999, Shirley was told Mr Swann 12 had stated that SCRO's identification was correct." 13 So Shirley McKie had been told at the very latest in 14 the mid-March 1999 that her independent fingerprint 15 expert had stated that SCRO's identification was correct 16 and that mark Y7 was her left thumb print. It is also 17 relevant that Shirley McKie and Iain McKie had attended 18 for a full day with Mr Swann in Wakefield to go over the 19 case. 20 However, since Mr Smith, Mr Cassells and Mr Dalyell 21 were all claiming that Shirley McKie was not aware of 22 the opinion of Mr Swann on a matter she was questioned 23 about by the Advocate Depute on 11th May 1999. Let me 24 refer them and this Inquiry to Shirley McKie's letter 25 signed by her to Angela McCracken at her solicitors Levy page 91 1 & McRae dated 7th March 1999 and that was prior to her 2 perjury trial. It was addressed to Angela McCracken: 3 "It's good to see last Friday (...read to the 4 word...) I appreciate the help and encouragement given 5 by yourself and Mr Findley [her QC]. In addition, it 6 would be extremely helpful if you could forward me a 7 copy of the brief you prepared to Peter Swann and the 8 information sent to Pat Wertheim as soon as possible. 9 In the absence of information to the contrary we are 10 also concerned our experts might be tending to follow 11 the prosecution lead instead of working to an agreed 12 defence agenda prepared by the whole defence team, 13 including ourselves. We are sure you will agree that it 14 is important that we seek to answer not only the 15 prosecution questions but pose some very relevant ones 16 of our own and take nothing which the prosecution or 17 their expert witnesses say for granted. This includes 18 photographs, fingerprint and forms et cetera provided by 19 the prosecution." 20 Shirley McKie continues in her signed letter: 21 "For example, Peter Swann did not even see or take 22 my prints prior to doing his examination. Whilst I am 23 sure you will pass on my comments and reservations to 24 him in your briefing, it appears as if, initially at 25 least, he accepted the elimination prints the page 92 1 prosecution had provided. However, we know the 2 fingerprint forms have not been fabricated. Is the 3 print (...read to the word...) the same as the one which 4 was allegedly when initially examined." 5 That carries the signature of Shirley McKie prior to 6 her perjury trial. 7 THE CHAIRMAN: This is an issue which, as I explained before 8 lunch, we intend to explore, I intend to explore. I 9 should make it clear that at this stage I gather that we 10 haven't a statement from Mr Swann that in counsel's 11 opening statement he was relying only where we had 12 evidence but obviously Mr Swann's evidence is essential 13 on this issue and that is something that we hope can be 14 provided. 15 But at present would it not be more desirable that 16 this whole thing should be explored, this topic should 17 be explored properly when those other interested parties 18 have an opportunity to cross-examine if I decide to do 19 that or give them leave? Would that not be more 20 desirable than having, as it were, the evidence given in 21 the form in which it is being done now? 22 MR RUSSELL: No, sir, I am not giving evidence. I am 23 reciting documentation. The reason I am doing that -- 24 THE CHAIRMAN: Documents are evidence. 25 MR RUSSELL: I am reading from letters and the reason why I page 93 1 am dealing with these matters is because they were 2 ignored by Mr Moynihan. You say -- 3 THE CHAIRMAN: Because they were ... sorry? 4 MR RUSSELL: Because you say, sir, that they were ignored by 5 Mr Moynihan because he did not have -- 6 THE CHAIRMAN: The evidence of Mr Swann -- 7 MR RUSSELL: But he had before him the signed detailed 8 precognition statements of Mr Swann and he had other 9 material and Mr Moynihan gave detailed narrative of 10 similar matters involving others but it is a singular 11 omission throughout his opening statement, the actual 12 involvement of Peter Swann and those issues which took 13 place over the course of many years between Peter Swann, 14 Iain McKie and Shirley McKie where they relentlessly 15 pursued him. 16 THE CHAIRMAN: As I said, my recollection is -- and I am 17 sure I am correct -- that Legal Professional Privilege 18 has been waived in respect of these matters and I 19 understood that to be the case and so there would be no 20 bar on Mr Swann being able to give the evidence in due 21 course. 22 MR RUSSELL: Not so, sir. You know that to be not so -- 23 THE CHAIRMAN: Why do I know it to be not so? 24 MR RUSSELL: Because, firstly, Mr Swann was pursued between 25 2000 and 2003 on breach of confidentiality by the McKies page 94 1 (Iain McKie, Shirley McKie) with the Fingerprint Society 2 allegedly in breach of confidentiality. He refused to 3 recant his identification of Y7 and he refused to remain 4 silent about it. At that stage and throughout the 5 McKies were desperately trying to have the SCRO experts 6 prosecuted for criminal offences. 7 After that, the McKies moved on to the Council for 8 the Registration of Forensic Practitioners. The day 9 that the complaints were rejected by the Fingerprint 10 Society, they were taken up by the CRFP. That was again 11 allegations, sir, of breach of confidentiality and the 12 reason why I say you know, sir, is because I have 13 reported to you last September what I have reported as a 14 breach of section 35 of the Inquiries Act 2005 which is 15 a sustained attempt by the McKies and by Pat Wertheim to 16 have proceedings brought before the International 17 Association of Identification -- yet another regulator 18 contender -- to have Mr Swann prosecuted for his work on 19 the McKie case. 20 Now, these are matters which are ongoing; so if I am 21 being told that Andrew Smith or the McKies waive 22 confidentiality, I would not give a jot for it because I 23 would not believe them. My client faces disciplinary 24 proceedings. Again, there has been a systemic attempt 25 to interfere with this evidence at this Inquiry and the page 95 1 evidence of Martin Leadbetter and I may have reported to 2 you, sir, in writing that the attempt to interfere with 3 the evidence of my clients has been successful. 4 THE CHAIRMAN: I am sorry to interrupt you, if you have the 5 courtesy sometimes to give way it would be helpful -- 6 MR RUSSELL: Sir, I am making submission, I do -- 7 THE CHAIRMAN: I am the Chair of this Inquiry and when I 8 speak you don't. 9 Now the point I am making is that I was referring to 10 this Inquiry and I understood that to be the position, 11 that Legal Professional Privilege had been waived, and 12 if Mr Smith wishes to say anything to the contrary, I 13 will give him -- is that correct, Mr Smith? 14 MR SMITH: You are absolutely correct, sir. 15 THE CHAIRMAN: Very good. Now if you would like to 16 continue. 17 MR RUSSELL: On 12th March 1999, Peter Watson, Solicitor 18 Advocate, Levy & McRae, wrote to Shirley McKie and said, 19 heading Her Majesty's Advocate v Shirley McKie: 20 "I refer to my conversation with you on the evening 21 of 11 March. Your letter of 7th March has been passed 22 to Donald Findley and Victoria (...read to the word...). 23 I have requested as a matter of urgency a further 24 consultation in order that they can deal with the points 25 you raise and you have the opportunity to articulate all page 96 1 your concerns. So far as Mr Swann is concerned, he was 2 given all the material which we hold, which includes 3 precognitions, Crown productions, the video and, of 4 course, your fingerprints. We held nothing back from 5 him. Mr Kerrigan met with him for an entire day [that 6 is Herbert Kerrigan QC.] Angela McCracken separately 7 met with him and Donald Findley QC has met with him. As 8 far as I'm aware, all the issues which both senior 9 counsel wish to explore were explored and Mr Swann's 10 report reflects the issues concerned. I will as a 11 matter of course pass a copy of your letter to Mr Swann 12 to determine whether or not he wishes to make any 13 additional comments." 14 All of that material was exchanged in March 1999 15 with active tenacious involvement by Shirley McKie 16 personally and that was a full two months before she 17 gave evidence at trial. 18 The claim Shirley McKie was unaware of the opinion 19 of Mr Swann on the matter she was cross-examined about 20 in her perjury trial was also entirely contradicted by 21 Shirley McKie's statement in the BBC Panorama 22 documentary, "Fingerprints in the dock". 23 When there was a reference to her independent 24 fingerprint expert, that is Mr Swann, Ms McKie spoke to 25 camera: page 97 1 "It was just absolutely gut-wrenching for me. I 2 felt as soon as someone on my side, so to speak, got a 3 chance to look at the evidence then this would all 4 become clear but then when we get the report back, I 5 mean, my world just crumbled in even more, if that's 6 possible, because I thought this was the answer." 7 The evidence that Shirley McKie referred to her in 8 perjury trial was overwhelming. The official transcript 9 for Shirley McKie's sworn evidence on 11th May 1999 in 10 Her Majesty's Advocate v Shirley Jane McKie when she was 11 cross-examined by the Advocate Depute included the 12 following: 13 "Advocate Depute: can you tell the ladies and 14 gentlemen how many people were asked to look at the 15 print Y7 for the defence before Mr Wertheim? 16 "Shirley McKie: I have no idea. 17 "Advocate: Do you seriously not know whether the 18 print was shown to anyone before Mr Wertheim? 19 "Shirley McKie: I don't know who has examined the 20 print. 21 "Advocate Depute: Do you know if anybody has -- 22 "Shirley McKie: I don't know who has. 23 "Advocate Depute: Do you know if anybody has, 24 regardless of their identity? 25 "Shirley McKie: I don't know. You would need to ask page 98 1 my solicitor that. 2 "Advocate Depute: So you don't know whether or not 3 anybody else looked at the print; is that your evidence? 4 "Shirley McKie: No, I don't know." 5 Those extracts are in her cross-examination by the 6 Advocate Depute sworn on oath two months after Ms McKie 7 is corresponded about Peter Swann's evidence. 8 THE CHAIRMAN: I have asked you before but what exactly is 9 the point that you are wishing to make? I have made it 10 absolutely clear that this is a topic that will have to 11 be explored at the Inquiry. 12 MR RUSSELL: I make the submission to this Inquiry -- which 13 has not see the light of day, sir -- Mr Moynihan's 14 made a statement in this Inquiry which I don't recognise 15 and which I regard as grossly bias. I have profound 16 difficulty with your legal team: Mr Moynihan because he 17 was Advocate Depute without disclosing it in the 18 proceedings Her Majesty's Advocate v David Asbury; Ann 19 Nelson because she was one of the most senior solicitors 20 in the Scottish Government and Roddy Flinn because I 21 found on my file a letter from Mr Flinn in 2005 from the 22 Office of the Solicitor of the Scottish Executive 23 following the case of Shirley McKie v The Scottish 24 Ministers. 25 That is a clean sweep, a hat trick, from your page 99 1 advisers and I raise issue with you, sir, on the fact 2 that during the hearings when this Inquiry opened, you 3 made a point of declaring that we are all independent of 4 the Scottish Government. What is very clear is that 5 Mr Moynihan is not independent of Crown Office, 6 Mrs Nelson is not independent of the Scottish 7 Government, Roddy Flinn is not independent of the 8 Scottish Government at the material time. At the very 9 least they all had gross conflicts that should have been 10 disclosed. 11 You can say this is an issue that is not of concern 12 to this Inquiry and is not relevant and I should know 13 better but, sir, if you consider the Hutton Inquiry 14 concerning the death of Dr David Kelly before 15 Lord Hutton, because of the issues touching upon the 16 role of the Government, the role of Number 10 Downing 17 Street, Lord Hutton brought in a solicitor in private 18 practice to act as his solicitor and Secretary to the 19 Inquiry. 20 Lord Hutton refused point blank to use Treasury 21 Counsel which was the established precedent and he did 22 so because he wanted to show his Inquiry to be entirely 23 independent. Now I have written to you chapter and 24 verse. I can write Mrs Nelson's CV; I can deal with 25 Mr Moynihan; I have my 2005 letter from Mr Flinn page 100 1 acknowledging correspondence to his boss at the Office 2 of the Solicitor to the Scottish Executive dealing with 3 the case of Shirley McKie. 4 Now, you tell me where I'm going wrong on these 5 issues because they are all documented, sir, and they 6 cause me profound concern and you may say why am I 7 addressing these matters when your team can make them at 8 a later date. Well, I don't trust your team and I know 9 tactically there is an issue -- which I recognise as a 10 tactic and it's a good one -- and that is they are 11 attributing very serious issues which I have raised to 12 Les Brown. They are doing that because Mr Brown is 13 going to be setup to take the fall. Now I have made 14 very carefully professionally scripted documented 15 submissions which I lodged with the Scottish authorities 16 but suddenly all of that work, my correspondence with 17 William Gallacher, my correspondence with Mr Gilchrist, 18 my correspondence with Jim Brisbane, my correspondence 19 with Colin Boyd suddenly becomes Les Brown alleges -- 20 not so. 21 Now where is all of this in Mr Moynihan's opening. 22 I can see none of it. 23 THE CHAIRMAN: I see. Well, I think some of your 24 information is incorrect and my understanding is that, 25 unfortunately, she can't be here today through no fault page 101 1 of her own but Mrs Nelson I understood was a lawyer with 2 the Scottish Parliament not with the Scottish 3 Government. 4 MR RUSSELL: No, sir. 5 THE CHAIRMAN: Well, thank you, you have corrected me and I 6 am sure your information is better than mine but that 7 was my understanding. But insofar as it is relevant, I 8 have your point. 9 Now if you would like to move on. 10 MR RUSSELL: Sir, I have profound difficulty. I wrote to 11 you on 17th December 2008, 10.4, of my letter: 12 "All senior staff of the Scottish Parliament 13 Corporate Body (SPCB) are directly employed by the 14 Scottish Parliament with one exception, the exception 15 was Ann Nelson who was at all material times on 16 secondment from the Scottish Executive, the Scottish 17 Government. I referred you to the Scottish 18 Parliamentary Corporate Body annual accounts, 2006 to 19 2007. I can take Mrs Nelson right through the Scottish 20 Parliament to include advising the Justice 1 Committee. 21 I can take Mrs Nelson into overseeing Professor Fraser's 22 contact with the Justice 1 Committee. These are the 23 grossest conceivable conflicts of interest. 24 I have given chapter and verse and, as you know, the 25 response is not to deal with these matters in a reasoned page 102 1 way. Instead I was told: 2 "The Chairman regrets that you have seen fit to 3 write in such intemperate terms and to express what 4 appears to be your own personal views rather than those 5 of the individuals you represent", Ann Nelson, 6 15th January 2009. 7 That is because I was consistently alleging that 8 this Inquiry was subject to inappropriate steering by 9 senior lawyers. I did that from a very early stage 10 because that is what I considered to be going on. One 11 month after you suggested that I was making -- I was 12 attacking the integrity, I think you went on to say 13 through Ann Nelson, that I should not make ill-founded 14 allegations challenging the integrity of the Inquiry. 15 One month later, sir, through Mr Flinn you are 16 having to write to the parties, the Core Participants, 17 to disclose Mr Moynihan's gross conflict of interest 18 and, as you know, before this Inquiry opened I refused 19 to meet with Mr Moynihan and when I met with him an hour 20 before the first hearing I told him the reason I would 21 not be meeting any Scottish advocate in this case is I 22 found they had no respect for their professional conduct 23 obligations to include, and I mentioned to Mr Moynihan 24 on the day before I knew he had been Advocate Depute in 25 the proceedings involving David Asbury, I mentioned the page 103 1 issue of conflict of interest between advocates in 2 Scotland and the cases in which they were involved. 3 As I say, one month after you took issue with what 4 you said was my unfounded attack, it was conceived the 5 leading counsel to the Inquiry was Advocate Depute in 6 the case of Her Majesty's Advocate v David Asbury. But 7 there is another side to that coin. 8 THE CHAIRMAN: I have given a ruling about this and I see 9 no reason to return to it. 10 MR RUSSELL: Sorry. You have given a ruling, sir, but this 11 matter needs to be in the public domain because -- 12 THE CHAIRMAN: The ruling is in the public domain. 13 MR RUSSELL: If I make a submission on these points, sir, if 14 this is to be redacted, Mr Moynihan has made an opening 15 statement to this Inquiry which has not dealt with any 16 issue I posed, no issue of substance. I have shown 17 conflict of interest on the part of your legal team, 18 gross conflict of interest, and you say, "I've ruled". 19 Well, that's not helpful when you are asking me why am I 20 making this statement. I am making this statement 21 because I do not trust your legal team. 22 THE CHAIRMAN: You are perfectly entitled to take that view 23 if that's what you want to do but I don't share it and 24 so you can proceed. 25 MR RUSSELL: Sir, having committed perjury during her page 104 1 perjury trial, Her Majesty's Advocate v Shirley Jane 2 McKie, having committed perjury in the trial in 1997 3 against David Asbury, Shirley McKie was acquitted. 4 What then happened was the McKie campaign became 5 very intense on the complete destruction of the SCRO 6 fingerprint experts, sacking was not good enough. The 7 McKies and the lawyers wanted the SCRO fingerprint 8 experts subjected to criminal prosecution which almost 9 certainly would have led to imprisonment. 10 David Asbury belatedly joined the same bandwagon 11 having been properly convicted before judge and jury of 12 the sadistic murder of Marion Ross. 13 He was on the freedom trail and would soon be 14 joining Shirley McKie in the quest for compensation. 15 However, if as alleged by the McKie's the SCRO experts 16 were dishonest criminals who had conspired together 17 against Shirley McKie, then the McKie team now had an 18 insurmountable obstacle and that obstacle was Peter 19 Swann. Her first defence fingerprint expert. 20 Peter Swann would not be silenced by Shirley McKie, 21 he would not be silenced by Iain McKie. He would not 22 recant his expert opinion. 23 But Y7 was Shirley McKie's left thumb print and have 24 lodged with this Inquiry Mr Swann's curriculum vitae 25 which is second to none and counsel refers to the page 105 1 McNamee case, Mr Moynihan in his opening. Mr Swann was 2 defence fingerprint expert for Mr McNamee-- 3 THE CHAIRMAN: Yes. 4 MR RUSSELL: And he worked on a daily basis over a long 5 period of time with Michael Mansfield QC. Mr Swann is 6 an old fashioned expert. He has no regard to who 7 instructs him; he has regard to the evidence. It is not 8 the case the piper calls the tune, it's the evidence, 9 the charts, the fingerprint charts. It's an 10 identification or it's a mis-identification and that is 11 Mr Swann's position. 12 Mr Swann identified mark Y7 as showing Shirley 13 McKie's left thumb. That is not going to change. She 14 has already lied about Mr Swann's involvement in her 15 perjury trial. In 2000 the McKies launched an intense 16 obsessional and wholly dishonest campaign against their 17 own defence fingerprint expert, Mr Swann. That campaign 18 was orchestrated by Iain McKie who had very considerable 19 media skills through his position in Strathclyde Police. 20 He operated with Shirley McKie's support and indeed 21 written authorisations, including a signed statement 22 that he was authorised to run matters for her. 23 Since Peter Swann would not remain silent, the 24 McKies set about silencing him. They started at the end 25 of 2000 with complaints to Peter Swann's regulating page 106 1 body, the Fingerprint Society. Further complaints were 2 lodged in the intervening years and it was nearly three 3 years later, 8th August 2003, that the Chairman of the 4 Fingerprint Society finally notified Iain McKie that its 5 disciplinary committee had thrown out Shirley's McKie's 6 case against Peter Swann. So the Fingerprint Society 7 wholly rejected the McKies' complaints for the final 8 time on 8th August 2003. 9 On that same day, 8th August 2003, the McKies lodged 10 new complaints, Iain McKie, Shirley McKie, with signed 11 statements against Peter Swann with the Council for the 12 Registration of Forensic Practitioners, CRFP. 13 The McKie's confirmed Peter Swann had been 14 instructed to examine mark Y7 and had concluded that the 15 identification made by SCRO was correct. 16 Multiple complaints were made by Shirley and Iain 17 McKie. They asked that Mr Swann admit he was wrong and 18 his failure to admit he was wrong should result in 19 disciplinary action against him. 20 They asked for imposition of confidentiality against 21 Mr Swann. He should be silenced from telling anyone 22 about his involvement as Shirley McKie's expert in the 23 perjury trial. The complaints proceeded against Peter 24 Swann and it was a major regulatory case. It commenced 25 on 8th August 2003 and it was controlled ultimately by page 107 1 the Chairman of the CRFP until it was concluded in 2 April 2005. It took a full 20 months. 3 The case against Mr Swann had been due to be heard 4 before the disciplinary tribunal chaired by a High Court 5 recorder. It was to be heard in London over the course 6 of ten full days in July 2005. In witness statements 7 the McKie's claiming that Peter Swann's actions were: 8 "Potentially harmful to Shirley McKie's reputation 9 and her civil case for damages against the SCRO and 10 Strathclyde Police." 11 It was a recounted that Peter Swann had had the 12 audacity to state publicly that he had been Shirley 13 McKie's fingerprint expert in the perjury trial and that 14 he remained absolutely certain that mark Y7 was Shirley 15 McKie's left thumb print. It was of course difficult 16 for the McKies to prove that there was dishonesty, 17 criminal conspiracy and fraud between the SCRO 18 fingerprint experts, the Core Participants who are now 19 in this room, when Shirley McKie's own independent 20 defence fingerprint expert, Peter Swann, had reached the 21 identical conclusion wholly independently Y7 was Shirley 22 McKie's thumb print. 23 Our defence in the CRFP disciplinary tribunal 24 proceedings was Mr Swann had an overriding duty to 25 uphold the administration of justice. It was our page 108 1 defence that Shirley McKie's action in Scotland to 2 secure compensation from the public purse was an attempt 3 to pervert the course of civil justice. The Chairman of 4 the disciplinary tribunal, the High Court Recorder, 5 permitted us to defend accordingly and he observed that 6 on the evidence we were maintaining an allegation that 7 Shirley McKie was guilty of an attempt to pervert the 8 course of civil justice. 9 In a statement to a member of the House of Lords in 10 June 2005 the Chief Executive of CRFP recounted events. 11 It will probably come as no surprise to learn the CRFP 12 were severely critical of my aggressive stance in 13 proceedings but its Chief Executive declared: 14 "The case of McKie returned at the end of November 15 when Mr Russell produced a good piece of work on behalf 16 of his client, Peter Swann. Scrutinising the formal 17 sworn statement Mr and Ms McKie had put into the 18 Scottish courts in support of their civil action, he 19 found two instances of claims that no fingerprint expert 20 outside of the SCRO had ever identified the disputed 21 print as that of Ms McKie. That is of course precisely 22 what Mr Swann had done and the statement was therefore 23 prima facie a false one. This led inevitably to the 24 claim that Mr and Ms McKie could not be relied upon as 25 witnesses in our proceedings. We put the question to page 109 1 Mr McKie who, in response, indicated that he had pointed 2 out Mr Swann's involvement with the QC who had prepared 3 the sworn statement. 4 "By now Mr Russell is arguing that Mr and Ms McKie 5 had brought the complaint against Mr Swann so as to 6 silence him in advance of the Scottish proceedings for 7 fear his opinion would damage their claim. Mr Russell 8 had notified the Scottish authorities of the false 9 statement and called upon CRFP to do the same. We 10 declined on the grounds that such action on our part 11 would be otiose. The Scottish authorities had been 12 notified. CRFP had no involvement in the Scottish case 13 and the full details are, in any case, much better known 14 to Towells and Mr Swann than to us. 15 "It took some time for us to persuade Mr McKie to 16 allow us to show his response on the question to 17 Mr Swann, which led Mr Russell to claim we were 18 protecting the Claimants and denying his client the 19 right to see such a vital document. We, for our part, 20 were anxious to get the response disclosed but could not 21 do so because we were ourselves bound by privilege, 22 Mr McKie being our witness. 23 "Eventually, our legal representative met Mr McKie 24 at our request, not incidentally as Mr Russell has 25 asserted in a response to a demand from Mr McKie. We page 110 1 have spent (...read to the word...) problem over his and 2 his daughter's evidence and ascertained that, whereas 3 previously he had told us categorically that there was 4 no connection between our case and the Scottish 5 proceedings, there was now a definite link, not least 6 because all other witnesses were likely to be called in 7 the Scottish case. 8 "At this stage our legal representative and I 9 reached the view we were most unlikely to be able to 10 prove the charge against Mr Swann. We decided in the 11 first instance to seek to postpone any tribunal hearing 12 until the Scottish case had run its course. Such 13 avoidance of parallel proceedings is normal practice in 14 the disciplinary procedures of professional regulatory 15 bodies. Mr McKie agreed that we should hold off for the 16 time being. We indicated to Towells [mt firm] that we 17 intended to apply to the Chairman of the Tribunal for a 18 postponement. That provoked a hostile response. 19 "I therefore discussed the matter on 11th March with 20 the Chairman of the CRFP who had no hesitation in 21 deciding that in all the circumstances that it was in 22 no-one's interest to continue with what would have been 23 lengthy, expensive, judicial proceedings in pursuit of 24 charges which had been limited to a small part of the 25 original complaint and that we should withdraw the page 111 1 charges altogether. Mr Russell was informed of that 2 decision the following week. 3 "Mr Russell continued to resist, claiming wrongly 4 that we were further protecting the Complainant. Not 5 so. Their actions will be fully examined in public in 6 the Scottish proceedings and, accordingly, we could not 7 withdraw the convening order once it had been issued. 8 We argued otherwise, an argument accepted by the 9 barrister appointed to chair the Tribunal." 10 Those proceedings came to an end with the CRFP 11 throwing out the McKies' complaints in June 2005. So 12 now we go from 2000 to June 2005 with relentless, 13 non-stop attempts to have disciplinary action taken 14 against Peter Swann. 15 In the CRFP proceedings, the McKies were deemed 16 unreliable witnesses. I had the conduct of Mr Swann's 17 defence in the CRFP disciplinary tribunal proceedings 18 for over 20 months. I acted pro bono throughout. Had I 19 not acted pro bono Peter Swann would not or could not 20 have defended the proceedings. Had that been the case 21 he would have been convicted of both the professional 22 misconduct charges, struck off and most importantly of 23 all silenced by Shirley McKie and Iain McKie. 24 So Peter Swann has been the subject of a relentless 25 regulatory campaign by the McKies spanning every single page 112 1 hour, every single day, every single month and every 2 single year between December 2000 and June 2005. 3 Andrew Smith QC appearing for the McKies and Asbury 4 before this Inquiry acknowledged in his opening 5 statement of 4th June 2009 that Peter Swann's support 6 for the SCRO experts was critical for the decision that 7 they should not be prosecuted. It is clear that 8 if Peter Swann had been silenced by the McKies then the 9 SCRO experts would have been prosecuted and almost 10 certainly imprisoned, which would have been a gross 11 conceivable miscarriage of justice. 12 Against that background, Mr Smith now tells this 13 Inquiry that they have prepared a comprehensive analysis 14 of Mr Swann's actions and so we move on again. 15 I have made it clear, sir, that between 16 December 2000 and June 2005 Shirley and Iain McKie 17 subjected their own fingerprint expert, Mr Swann, to 18 nearly five solid years of attempts to silence him and 19 inevitably by inference to ruin him both professionally 20 and financially. 21 Each of the cases lost, as I stated, by the 22 Fingerprint Society and in turn the CRFP but the attacks 23 upon Mr Swann had continued. In the weekend of 24 14th March 2008, an entirely new disciplinary case was 25 conceived, led by the McKies' number one campaigner and page 113 1 expert to this Inquiry, the Core Participant, Pat 2 Wertheim. 3 You can ask what precipitated the latest attack upon 4 Mr Swann? The clue is in the date, March 2008. As 5 incredible as it may seem what provoked this attack was 6 the announcement of the Scottish Government it had set 7 up a statutory judicial Inquiry, the Fingerprint 8 inquiry. 9 On 16th March 2008, within 48 hours of the 10 Government announcement, the McKie team was setting up 11 an entirely new complaint of alleged misconduct: 12 mis-identification of Y7 against both Peter Swann, Core 13 Participant, and Martin Leadbetter, witness before this 14 Inquiry. 15 The declared objective which was published on their 16 website was to pursue a complaint on mark Y7 that it had 17 been misidentified as Shirley McKie's fingerprint 18 through the International Association of Identification, 19 IAI. The motive was clearly recorded on the Wertheim 20 website, CLPEX, Complete Fingerprint Examination Message 21 Board, under the heading, "Judge to head fingerprint 22 Inquiry". 23 The parties involved declared that through the IAI 24 they wanted to put early pressure on the supporters of 25 the Y7 identification Mr Swann and Mr Leadbetter prior page 114 1 to the Inquiry hearing. That was a blatant and entirely 2 dishonest attempt to pervert the course of justice and 3 contravention, we say, of section 35 of the Inquiries 4 Act 2005 since it was a sustained attempt to interfere 5 with the evidence of two witnesses to the Inquiry, 6 Mr Swann and Mr Leadbetter. 7 On 15th March 2008, a statement by Pat Wertheim was 8 reported on the website. Again, under the heading 9 "Judge to head Fingerprint Inquiry", Mr Wertheim's 10 statement was: 11 "A number of people, including a vice-president of 12 the IAI [who we have identified as Robert Garrett] have 13 approached me with the idea that the situation could be 14 brought to a head in the IAI if someone were to file a 15 complaint against me with the latent print certification 16 report on the grounds that I erroneously excluded 17 Shirley McKie as the donor of Y7. The certification 18 board would then have to hold a hearing of sorts in 19 which I would defend myself against the charge. I would 20 welcome such a complaint being filed against me. Of 21 course the certification board would find in my favour 22 which would then become a de facto position of the IAI. 23 The problem with that scenario is that it requires 24 someone willing to go on record to say I was wrong and 25 the SCRO was right. No takers." page 115 1 What that precipitated was another fingerprint 2 expert, who is a lead supporter of the McKies, posting 3 the response saying: 4 "Good news about naming judge and probable start for 5 a public inquiry. I'm interested in the proactive step 6 that can be taken through the IAI to put some early 7 pressure on the supporters of the mis-identification." 8 They then proceed to conceive the complaint to the 9 IAI against Peter Swann and Martin Leadbetter. 10 Now, that was so blatantly an attempt to interfere 11 with Peter Swann's evidence to this Inquiry, to bring 12 him before a professional review body, to challenge him 13 on his identification precipitated solely by your 14 appointment, sir, as Chairman of this Inquiry at the 15 instigation of this Inquiry on Terms of Reference agreed 16 between you and the Justice Minister, they moved to lay 17 off their bets. They set up a competing inquiry, an IAI 18 Inquiry, which has developed into a major inquiry in 19 America. It started the day the Scottish Government set 20 up this Inquiry because they do not want to be caught by 21 this Inquiry making findings against them. The IAI have 22 already ruled that mark Y7 is not the print of Shirley 23 McKie. Where did the IAI get their evidence from to 24 make such a ruling? Sir -- 25 THE CHAIRMAN: How should I be influenced at all by the page 116 1 findings of the IAI? I do not see any reason to pay any 2 attention to it whatever. 3 MR RUSSELL: One of the reasons is that when the Core 4 Participants have their time, has provided all of the 5 evidence to that particular inquiry, it's very clear it 6 is largely Internet evidence which has been supplied and 7 worldwide there is an attempt again to move against 8 Peter Swann on Shirley McKie. It is an endless 9 oppressive, crushing attempt to bring Peter Swann down. 10 Mr Swann is a Core Participant to this Inquiry so 11 you should be interested in what is happening to him, 12 sir. It is appalling that a professional man should 13 have to face nine years of endless regulatory action 14 which you will know, sir, from the Bar Council and the 15 Law Society, has driven men and ladies over the years to 16 commit suicide. It is a dreadful thing to do to take a 17 professional man and to subject him year in, year out to 18 endless allegations of professional misconduct all 19 founded upon the same allegations and bearing in mind 20 the IAI have no interest whatsoever as a professional 21 review board and disciplinary tribunal in this case 22 until 2009, literally when the Scottish Government sets 23 up this Inquiry, and suddenly the IAI have this 24 interest, which is simply appalling. 25 That is particularly so since they have now embarked page 117 1 on what will be the next stage of disciplinary 2 proceedings against Peter Swann, Martin Leadbetter and 3 the action against Mr Swann will be on the same 4 allegations which were thrown out by the Fingerprint 5 Society that were thrown out by the CRFP and here we go 6 again. 7 I think you can judge what is going on by the fact 8 that Wertheim has published his statements crowing about 9 this development, Mr McKie has published a statement 10 saying it's a wonderful thing, how well he fought. And 11 yet they sit or will sit before this Inquiry saying the 12 way is truth and reconciliation; what crass hypocrites 13 these people are. They come in here and say one thing: 14 they go off and do something entirely contrary. That is 15 entirely inappropriate and that is why I have written to 16 Ann Nelson to report what I perceived to be a matter 17 under section 55 of the Inquiries Act 2005 which should 18 have been subject to criminal investigation. 19 THE CHAIRMAN: I think it would certainly be difficulty in 20 enforcing any form of restraint in the United States of 21 America on an Inquiry in Scotland. 22 MR RUSSELL: But there is entirely little effort from anyone 23 involved towards looking into matters towards their 24 being appropriate. A decision on enforcement cannot be 25 made until a decision has been made about the evidence. page 118 1 Enforcement is secondary. If it is going on and there 2 is an attempt by third parties to bring pressure to bear 3 upon a Core Participant and witness to this Inquiry then 4 it should be investigated. 5 What I did say in writing to Ann Nelson on 6 15th October 2008 is: 7 "In the circumstances jurisdiction in this 8 matter remains with the Chairman of the Fingerprint 9 Inquiry. On that basis, it is the Chairman alone who 10 has (...read to the word...) on this matter. My duty is 11 to bring this matter to the attention of the Chairman as 12 a relevant matter under section 35 of the Inquiries Act 13 2005. I duly waive confidentiality in respect of my 14 letter dated 20th September and the correspondence and 15 documentation appended thereto. On that basis, I would 16 invite the Chairman to exercise his discretionary powers 17 and to refer the matter to the Crown Office and 18 Procurator Fiscal Service in order that (...read to the 19 word...) can be investigated with appropriate 20 involvement by the Strathclyde Police." 21 In response on 23rd October 2008, Ann Nelson set out 22 the difference between inquiries in England and Scotland 23 but stated: 24 "Sir Anthony saw the papers you submitted earlier. 25 We appreciate your courtesy in alerting him to the page 119 1 matters you mentioned. However, should you wish to draw 2 the matters to the attention of the prosecuting 3 authorities in Scotland at this stage he considers that 4 that is a matter for you. He is not minded to do so 5 himself." 6 Sir, it was on 12th February 2009 that Vicky K 7 (inaudible), First Vice-President IAI (a lady who works 8 for the Central Intelligence Agency) gave notice that 9 the Professional Review Board had been set up. Y7 had 10 been, in effect, completed its task and Mr Swann and 11 Mr Leadbetter would now face disciplinary proceedings. 12 As you know, Robert Garrett thereupon set up at the 13 Spring Conference of the IAI to report the findings of 14 this Y7 committee to the IAI prior to taking 15 disciplinary action against Mr Swann. 16 One of the matters we raised which caused us 17 profound concern was that Professor Champod, expert to 18 this Inquiry, was heading off to the IAI to the same 19 conference to speak immediately after Mr Garrett, which 20 did nothing to encourage our belief in the 21 Professor Champod's independence, of which we have none. 22 THE CHAIRMAN: Could you give any indication of how long you 23 might be, Mr Russell? It is just there is a witness 24 waiting and I would not detain him if you think it is 25 going to take -- page 120 1 MR RUSSELL: I don't intend to be flippant but I will be 2 very much shorter than Mr Moynihan and probably longer 3 than Mr Smith but my point is that this is largely by 4 reference to matters discussed with those who instruct 5 me, the documentation and it is changing as the hearing 6 proceeds. So in actual fact if you asked me what I was 7 going to say and how long I was going to be when I 8 started it would be entirely different from what is 9 happening now. 10 THE CHAIRMAN: I was just seeking an indication. 11 MR RUSSELL: I appreciate that, sir. 12 THE CHAIRMAN: Do you think it will take the rest of today? 13 It is now an hour and -- 2.40 and we stop -- 14 MR RUSSELL: I would have thought -- 15 THE CHAIRMAN: -- for a ten minute break. 16 MR RUSSELL: Sorry, sir. 17 THE CHAIRMAN: We give the stenographer a short break as she 18 is working -- 19 MR RUSSELL: I honestly do not know how much longer I will 20 be but I would have thought that there wouldn't be an 21 awful lot of time left to bring on another witness. 22 THE CHAIRMAN: Would you like to make arrangements then. 23 MISS CARMICHAEL: There were two potential witnesses. I 24 have said one could be released given the timescale. 25 Maybe we could release both of them for this afternoon? page 121 1 THE CHAIRMAN: In the circumstances, yes. 2 MISS CARMICHAEL: I am obliged, sir. 3 THE CHAIRMAN: Yes, Mr Russell. I am sorry to interrupt. 4 MR RUSSELL: Sir, as I made clear I have very considerable 5 difficulty with the Inquiry legal team. I have a 6 totally jaundiced view because of my experience of 7 dealing with this case over the course of many years. I 8 have zero tolerance. I do not accept explanations 9 without testing them. I no longer accept the word of 10 anyone in the McKie case. So each explanation I receive 11 I test and that is why I'm here today making what may be 12 termed a dissenting or alternative statement, whatever 13 form of statement that may be. 14 This is not a case of my having a profound loss of 15 confidence in this Inquiry and coming along and perhaps 16 taking people by surprise. I have made these points 17 over and over again over the course of many months and I 18 have done so by reference to very specific matters, not 19 merely I don't like the way this Inquiry's going. I 20 haven't done that. All I've said is this Inquiry -- and 21 I detected this very early on -- is being subjected to 22 inappropriate steering by senior lawyers. 23 Now, matters recently have come to a head. On 24 17th December 2008 I wrote to Roderick Flinn, Deputy 25 Solicitor to the Inquiry. I was particularly having page 122 1 profound difficulty with Professor Christophe Champod 2 and the trawling for other experts, the issue of Ann 3 Nelson and at that stage, whilst I had raised with 4 Mr Moynihan gross conflict of interests as a perennial 5 problem with Scottish advocates, I was unaware of his 6 gross conflict of interest. So on 17th December 2008 I 7 wrote to Mr Flinn and said: 8 "You have provided me with the Inquiry's formal 9 acknowledgment in respect of my submissions of 28th 10 November and 4th December. Both of which were concerned 11 with retainer of Professor Christophe Champod as expert 12 to the Inquiry. While the Inquiry was saying Professor 13 Champod's retainer was merely a proposal, it's very 14 clear that matters have gone beyond that. The Inquiry 15 is presently structured to proceed on the basis proposed 16 by Professor Champod as outlined by Gerry Moynihan QC. 17 It is my firm opinion that this Inquiry has been 18 deliberately steered to Professor Champod and that it is 19 already proceeding in accordance with his advice. For 20 my part, I have already shown cause why 21 Professor Champod is disqualified from acting as expert 22 to the Inquiry. 23 "Be that as it may, in response to my submissions 24 the position of the Inquiry may be summarised thus: 25 "(a) The Chairman has again signified that since my page 123 1 submissions contained allegations of a sensitive nature, 2 the Inquiry must be fair to those who are the subject of 3 allegations and that consequently it would not be fair 4 to publicise generally the content of my submissions; 5 "(b) The Chairman is only prepared to circulate my 6 submissions to Core Participants and other recognised 7 legal representatives when each such party has completed 8 individual confidentiality undertakings; 9 "(c) The Chairman requires me to provide the 10 Inquiry with a signed confidentiality undertaking, 11 together with identical undertakings signed by clients; 12 "(d) The Chairman has given notice that the future 13 practice of this Inquiry will be to circulate 14 submissions on the basis that their content remains 15 subject to the confidentiality undertakings, unless he 16 has made a direction to the contrary; 17 "(e) The Chairman has refused my application for 18 disclosure of the documentation listed in my letter of 19 4th December; that is to say, all letters, notes and 20 memoranda recording communication and contact between 21 Sir Anthony Campbell (Chairman), Ann Nelson (Secretary 22 and Solicitor to the Inquiry), Gerry Moynihan QC 23 (leading Counsel to the Inquiry), Professor Christophe 24 Champod, and Professor Jim Fraser; 25 (f) As to the serial coincidence by which this page 124 1 Inquiry is said to have stumbled across Professor 2 Fraser, who just happened to refer his legal team to 3 Professor Christophe Champod, the Chairman and Gerry 4 Moynihan maintained explanations provided during the 5 procedural hearing of 21st November and, in doing so, 6 have refused to provide me with any corroborative or 7 otherwise contemporaneous documentation." 8 I then set out these points. For reference 9 purposes, my response was said to incorporate all 10 previous submissions. I went on and said: 11 "I refuse to provide the Inquiry with 12 confidentiality undertakings and furthermore will advise 13 my clients, two participants and two witnesses, that 14 they must not under any circumstances sign 15 confidentiality undertakings. The Chairman's 16 determination that Core Participants and their 17 recognised legal representatives must provide 18 confidentiality undertakings that all future submissions 19 are to be regarded as confidential unless there is a 20 direction to the contrary are inappropriate, unwarranted 21 and wholly unreasonable." 22 THE CHAIRMAN: I don't want to be difficult but we have 23 really been through all the confidentiality points. I 24 think repetition is not going to assist. So if you -- 25 we have dealt with that, I have given my views on that page 125 1 so if you could deal with fresh topics that would 2 assist. 3 MR RUSSELL: Thank you, sir. 4 THE CHAIRMAN: Would it be convenient if I take the short 5 break now so that you can collect your thoughts and just 6 get, as I say, new points rather than repetition. 7 MR RUSSELL: Thank you. 8 THE CHAIRMAN: So I will sit, again at 3.00. 9 (2.47 pm) 10 (A short break). 11 (3.00 pm) 12 THE CHAIRMAN: Yes, Mr Russell? 13 MR RUSSELL: Sir, thank you. 14 Quoting again from the letter 17th December 2008 to 15 the Inquiry I took great issue as to the inappropriate 16 steering of the Inquiry by the legal team I also stated: 17 "In November I made an assorted submission 18 establishing beyond reasonable doubt that Professor 19 Christophe Champod was wholly disqualified to act as 20 expert to the Inquiry. In that same letter I made a 21 detailed submission wholly objecting to the Inquiry's 22 claim that he effectively and by serial coincidence 23 stumbled across Professor Jim Fraser who just happened, 24 by coincidence, to take the Inquiry to 25 Professor Champod. page 126 1 In my letter 28th November, I concluded the 2 Inquiry's legal team, led by Ann Nelson, solicitor and 3 secretary, failed to conduct due diligence inquiries in 4 respect of Professor Champod. However, the Inquiry's 5 actions to include explanations of serial coincidence 6 caused me profound concern. It was in those 7 circumstances that I wrote, again, to the Inquiry on 8 4th December requesting disclosure of (1) the minutes of 9 attendance recording the meeting with Professor Champod, 10 Sir Anthony Campbell, Mrs Ann Nelson and others; (2) a 11 minute or attendance note recorded in the meeting 12 between Professor Jim Fraser, Mrs Ann Nelson and others; 13 (3) copies of all correspondence between the Inquiry and 14 Professor Jim Fraser; (4) copies of all correspondence 15 between the Inquiry and Professor Champod; (5) copies of 16 any notes, papers ore reports (draft or otherwise) 17 submitted to the Inquiry by Professor Champod; (6) a 18 statement identifying the source of the proposal that 19 the Inquiry should proceed with a standard set of 20 images. 21 The only response on the part of the Chairman had 22 been to refer me back to the Inquiry transcript of 23 21st November that being the explanation of 24 serial coincidence and to state that he was "not minded 25 to provide me with any of the documents requested." page 127 1 I went on to say: 2 "Such (...read to the word...) undermines not only 3 the transparency of the statutory Inquiry but its 4 inherent integrity. In this connection I cannot and 5 indeed will not accept the explanation given by the 6 Inquiry as to the serial coincidence which led the legal 7 team to Professor Fraser and thence to 8 Professor Champod. I will go further, I do not believe 9 that the Inquiry's legal team led by Mrs Nelson merely 10 spoke to Professor Fraser conscious of his role in 11 forensic science at Strathclyde." 12 That was a reference to the transcripts of the 13 opening. I went on to say: 14 "I do not for one moment believe the account that by 15 coincidence Professor Fraser just happened to mention 16 Professor Champod. Not only do I reject that account 17 but in so doing I specifically alleged that this Inquiry 18 is being steered. 19 "That was why the decision was made to approach 20 Professor Fraser and Professor Champod even prior to the 21 opening hearing of the Inquiry on 20th October. Indeed, 22 even before we got to that opening hearing, the 23 Champod-linked Inquiry was a fait accompli, subject only 24 to rubber stamping. Indeed, two months later 25 Professor Champod was still not being excluded. page 128 1 Notwithstanding unequivocal evidence having been adduced 2 as to his ineligibility and the fact he is not qualified 3 to act as expert to the Inquiry." 4 I went on to state: 5 "In the circumstances I challenged the Inquiry's 6 account that Ann Nelson would have approached 7 Professor Fraser", in those circumstances. 8 I then went on to say: 9 "Thus the Chairman gave an assurance that all 10 members of the Inquiry, to include the legal team led by 11 Mrs Ann Nelson, were completely independent of 12 Government. In the circumstances I raised the following 13 matters all of which are concerned with Mrs Nelson's 14 state of knowledge and her role in the Scottish 15 Parliament and Scottish Government. Ann Nelson was 16 employed in the Scottish Office Solicitors, subsequently 17 the office -- 18 THE CHAIRMAN: Is this a repetition of what you were saying 19 at 2.45 when you went through the various individuals 20 because I really don't think repeating it adds anything 21 to it. 22 MR RUSSELL: I haven't given details but I had alluded to it 23 in all the circumstances -- 24 THE CHAIRMAN: You have gone into some detail and I think we 25 have your point. page 129 1 MR RUSSELL: My point is, sir, that at the time I gave 2 chapter and verse as to Mrs Nelson's role in the 3 Scottish Government and I have her down as probably the 4 third most senior solicitor in the Scottish Government 5 and that she was never paid by the Scottish Parliament, 6 she was on secondment from the Scottish Government. She 7 is a Scottish Government lawyer. Ronnie Flinn is a 8 Scottish Government lawyer or was when he wrote to me in 9 2005 in the case of Shirley McKie. 10 THE CHAIRMAN: I think we had those points just a few 11 moments ago. 12 MR RUSSELL: On 24th February 2009 Roderick Flinn, I 13 alluded, again to what I called the process of 14 considerable conflict of interest on the part of Gerry 15 Moynihan QC, senior Counsel to the Inquiry. I stated: 16 "The Chairman should not be asking whether there is 17 any objection to Mr Moynihan continuing as senior 18 counsel to the Inquiry but instead should be asking 19 whether this Inquiry can continue and, if so, on what 20 terms and whether he can or should remain as its 21 Chairman. For his part, in making decisions as to the 22 procedure and conduct of this Inquiry the Chairman had a 23 statutory duty to act with fairness pursuant to the 24 terms of section 17(3) of the Inquiries Act 2005." 25 I went on to say: page 130 1 "I must also raise the gravest possible concern in 2 respect of the Inquiry's delay in disclosing 3 Mr Moynihan's involvement as Advocate Depute in the 4 proceedings in Her Majesty's Advocate v David Asbury. 5 Having received the relevant papers (...read to the 6 word...) January 2009, the Inquiry failed to make 7 disclosure until 16th February 2009. What is of equal 8 concern is that on 3rd February, that is between 9 securing the Crown Office files on 23rd January and 10 making the disclosure in respect of Mr Moynihan on 11 16th February, the Chairman made and announced his 12 decisions on Professor Champod and related matters, all 13 of which were intrinsically linked to the proposals of 14 senior counsel to the Inquiry which is established by 15 Ann Nelson's letter of 3rd February. 16 "Furthermore, on the basis of Emma Gilpin's letter 17 of 23rd February, it was (...read to the word...) 18 Mr Moynihan's previous role as Advocate Depute in 19 proceedings in Her Majesty's Advocate v David Asbury on 20 28th January and that he thereupon considered the 21 (...read to the word...) on 29th January. 22 "In respect of such matters, I place express 23 reliance upon Mrs Nelson's letter of 3rd February 2009, 24 the transcript of the procedural hearing held on 21st 25 November 2008 and Miss Gilpin's letter of 23rd February. page 131 1 It is my submission that by 29th January at the latest 2 the Chairman should have made an order staying all 3 decisions, determinations and rulings if the Inquiry, 4 both procedural and otherwise. It's wholly unacceptable 5 that with direct knowledge of the gross conflict of 6 interest revealed on 29th January at the latest on the 7 part of Mr Moynihan, Senior Counsel to the Inquiry, the 8 Chairman should thereupon have made or otherwise 9 proceeded with the release of the decisions notified on 10 3rd February." 11 I went on to say: 12 "The matters disclosed in your letter of 16 February 13 2009 call into question the future of this Inquiry. 14 Indeed, I invite the Chairman to consider each and every 15 submission made by me, commencing with the one dated 16 14th November 2008." 17 I would then remind the Chairman my submissions 18 incorporated a letter dated 19th June 2007 to Jim 19 Brisbane the then Deputy Crown Regent, Crown Office and 20 Procurator Fiscal Service, Edinburgh. 21 In my letter to Mr Brisbane at Crown Office, I set 22 out at great length the facts surrounding the murder of 23 Marion Ross, the ensuing police investigation, and 24 instigation of the proceedings Her Majesty's Advocate v 25 David Asbury. I set out verbatim Mr Asbury's interview page 132 1 under caution by Strathclyde police officers. 2 Mr Moynihan had clearly studied my submissions to the 3 Inquiry and he would have read my letter to Mr Brisbane 4 at the Crown Office in its entirety. In the 5 circumstances, is the Chairman seriously asking me to 6 accept that in studying such material and, indeed, 7 discharging all of his duties as senior counsel to the 8 Inquiry Mr Moynihan did not at any time recall that in 9 1997 he had acted as Advocate Depute in the case of Her 10 Majesty's Advocate v David Asbury. Is the Chairman 11 seriously asking me to believe that when Mr Moynihan saw 12 the papers from Crown Office in January 2009 he had no 13 recollection of his involvement in the Asbury case? Is 14 the Chairman seriously asking me to accept that, even 15 now, Mr Moynihan has no recollection whatsoever of the 16 fact that he instructed Crown Office and Strathclyde 17 Police to indict David Asbury for murder or that he 18 advised (inaudible) that further enquiries should be 19 made to include that of the fingerprint evidence. 20 I go on to take, sir -- 21 THE CHAIRMAN: Can I just get the point that you are making. 22 I made a ruling about this, I made it public, about 23 Mr Moynihan continuing. You obviously didn't agree with 24 the ruling and is that not -- you have made your point 25 and perhaps we can move to something different. page 133 1 MR RUSSELL: Well, it would be nice to move to something 2 different if it wasn't so important, sir. Mr Moynihan 3 is senior counsel to this Inquiry; yes, you have ruled 4 upon it but I have come before the Inquiry today 5 because, having read Mr Moynihan's opening statement to 6 the Inquiry and having studied the way in which this 7 Inquiry has operated, I am utterly devoid of confidence 8 in the legal team and I think it is entirely 9 appropriate -- 10 THE CHAIRMAN: I think you were devoid of confidence from an 11 earlier stage from what you said. So nothing new has -- 12 MR RUSSELL: No, there is nothing new, sir, save for being 13 incredulous that someone an eminent Queen's Counsel can 14 say they entirely forgot that he was Advocate Depute for 15 the Crown in the highest profile case in Scotland. It 16 is simply unbelievable -- 17 THE CHAIRMAN: That is your opinion and I think it's noted 18 and if you would like to move to some other subject 19 because, as I said, I have dealt with this and I can't 20 see the point in going over it again. 21 MR RUSSELL: No, sir, the only point I was going to make 22 which is what I was just saying was the reverse of that 23 very point which is and I quote again: 24 "Equally, are we expected to believe that prior to 25 February 2009 no-one at the Crown Office recalled that page 134 1 Mr Moynihan had acted as Advocate Depute in the Asbury 2 case? Clearly Jim Brisbane would have been aware of 3 Mr Moynihan's involvement, as indeed would 4 Lord Duncansby, former Lord Advocate. It is equally 5 clear that in respect of successive enquiries (...read 6 to the word...) the Fingerprint Inquiry, the Crown 7 Office will have undertaken extensive review of the 8 files. Indeed, it could not be otherwise. 9 "It is equally clear that at an early stage it would 10 have been reported to Elish Angiolini QC (Lord Advocate) 11 that Mr Moynihan had acted as Advocate Depute in the 12 Asbury case. In writing to this Inquiry 13 on 14th November 2008, it was specifically reported by 14 Scott Patterson, Director of Operations, Crown Office, 15 that the Lord Advocate had given careful consideration 16 to all matters before electing not to make a submission. 17 That exercise must have entailed a reading of the Asbury 18 case papers. It could not have been otherwise. There 19 can be no doubt, therefore, that Crown Office were at 20 all material times aware that Mr Moynihan, senior 21 counsel to the Fingerprint Inquiry, had also been 22 Advocate Depute in the proceedings Her Majesty's 23 Advocate v David Asbury." 24 THE CHAIRMAN: Yes. 25 MR RUSSELL: I went on to say, sir, that Mr Moynihan's page 135 1 position as senior Counsel to the Inquiry was untenable. 2 I did ask you, sir, for a public hearing. I also asked 3 for Miss Angiolini to appear before this Inquiry and I 4 asked for the opportunity to examine her, to examine 5 Lord Boyd, to examine Mr Moynihan on this issue but you 6 decided -- as you said, you made a ruling and decided 7 that you wanted to deal with it on the written 8 submissions. 9 Now, unfortunately, those written submissions again 10 have never surfaced. They are not on the websites, 11 they've never been referred to. A hearing would have 12 enabled this matter to be dealt with and Crown Office to 13 give an explanation as to why they have failed to alert 14 this Inquiry that their Advocate Depute in the Asbury 15 case was senior counsel to the Inquiry. That was never 16 dealt with in public. 17 THE CHAIRMAN: Well, I read your submission and I have to 18 say I don't think there was anything more that could be 19 said than was said in your submission. 20 MR RUSSELL: But the interesting thing, sir, is what I say 21 to you and what you say to me is all very interesting 22 but it's not being said to the Scottish public who are 23 entitled to know what is going on and that is the point 24 I am making, the requirement of transparency, and that 25 all of this material could be in the public domain. The page 136 1 secrecy is entirely inappropriate. 2 I am pro bono so I have no interest in the financial 3 affairs of this Inquiry I have no interest in how much 4 is being paid to the lawyers. We come here at our own 5 expense. We go home at our own expense. We do the work 6 at our own expense so our only interest is in relation 7 to the issues, the facts and getting these facts before 8 this Inquiry and -- 9 THE CHAIRMAN: I do not accept that only advocates who act 10 pro bono are acting in a proper way in the course of 11 their professional work. I just find that unacceptable. 12 That is the inference of what you have just said, that 13 because you act pro bono more weight is to be attached 14 to your views than that of other people. That is just 15 not a comment I expect from a professional man. 16 MR RUSSELL: I am actually very happy to argue that point 17 but I will not do so because I don't think it is going 18 to assist the Inquiry or anyone else on that issue, but 19 I would be very happy to argue the point of what I have 20 to say to the Inquiry and what matters have not been 21 brought to this is Inquiry's attention and why such 22 omissions(?) now stand. 23 I did say, sir -- and you will be greatly relieved 24 to learn that I am coming to a close -- what I have said 25 is that I am, in writing to you, both very conscious page 137 1 that you would somehow construe what I was saying and 2 submitting to be a gross discourtesy and I very clearly 3 said I recognised your professional eminence, the fact 4 you previously served as Lord Justice of Appeal. I went 5 on to say: 6 "Nevertheless on the available evidence I am 7 entitled to maintain my challenge of directions and 8 indeed decisions. At the outset and prior to the 9 disclosure of Mr Moynihan's gross conflict of interest I 10 worked on the basis that you were being very badly 11 advised by your senior lawyers." 12 We have now got to the stage where the disclosures 13 were made. There's very little more I can say about 14 these matters but insofar as you indicate "bring them to 15 the Inquiry and we will deal with them", everything I 16 put to this Inquiry is no doubt there but it's not 17 surfacing and it's certainly not surfacing in anything 18 that Mr Moynihan had to say to this Inquiry and that 19 causes me profound concern because I read the 20 transcripts of the events at SCRO, Dunbar, Geddes, 21 McBride. They opened the door; they shut the door; they 22 looked at Y7; the wind was blowing; the light was on, 23 every minute detail of the work they did on Y7, and I 24 sit there and think of the McKie's expert, Malcolm 25 Graham, David Asbury's expert identified mark Y7 as page 138 1 being Shirley McKie's left thumb and Mr Swann is an 2 eminent expert. He did his work independently but there 3 is so little that comes before this Inquiry. 4 Just on a final point, sir, I refer to -- and this 5 is the issue which concerns me, another issue which 6 concerns me, is the way in which red herrings are 7 trailed before this Inquiry and I have referred to 8 Docherty, to strangers in the area, men seen passing by, 9 the police looking for someone else, and the assumption 10 that because someone was a suspect that they should 11 still be in the frame for the murder of Marion is 12 absolute garbage. Marion Ross was murdered by David 13 Asbury. 14 Now if Mr Asbury wants to have all this material in 15 the public domain I'm very happy to deal with the 16 evidence. What I don't want to have is Mr Asbury's 17 counsel telling this Inquiry that there was a stranger 18 who passed by, Docherty was in the frame, in 19 circumstances where material to include that of the DNA 20 issue involving Asbury or the evidence against Asbury is 21 being redacted and that does cause me concern. 22 I had extensive correspondence with Jim Brisbane at 23 Crown Office concerning the issue of blood on Asbury's 24 watch which matched the blood group of Marion Ross and 25 eventually I secured a response from Mr Brisbane on 21st page 139 1 August 2006 and at that stage we were fully prepared to 2 fund the DNA investigation. 3 THE CHAIRMAN: I appreciate that. You will understand that 4 I have ruled that, so far as this Inquiry is concerned, 5 I am dealing with only the fingerprint part of the 6 evidence that was against Mr Asbury. Also, I appreciate 7 what you have just said, that Marion Ross was murdered 8 by David Asbury. The position is that the Court of 9 Criminal Appeal in Scotland has quashed his conviction. 10 That is the matter in law, as you know. Whatever your 11 personal opinions may be, that is the position in law. 12 MR RUSSELL: It is not a personal opinion, sir. David 13 Asbury was carried along in a political decision by the 14 Lord Advocate and others. Evidence was not placed 15 before the Appeal Court, very simply there should have 16 been an application to apply for the retrial of David 17 Asbury and there was no such application made. He was 18 not acquitted: he was properly convicted before judge 19 and jury. The issue of the DNA has to be relevant 20 when Mr Smith for Asbury is trailing garbage stories 21 about Docherty and strangers in the area. They are 22 trying to run an alternative to Mr Asbury. If they want 23 to do that, then let's come back to the DNA issues and 24 let's also come back to the fact that there was a claim 25 that I think Mr Brisbane said on 21st August 2006: page 140 1 "However, I now advise you that what is referred to 2 in the outstanding issues section of the Mackay Report 3 has been resubmitted for DNA profiling. Forensic 4 scientists have re-examined the watch with a negative 5 result. They were unable to obtain a positive chemical 6 reaction for the presence of blood and so have no 7 material upon which to carry out any further testing. 8 In addition, there is no material left from the original 9 swabbing taken in 1997 upon which any DNA testing could 10 be carried out. Accordingly, the forensic scientists 11 have advised there is no possibility of carrying out any 12 DNA profile in relation to the watch." 13 In responding on 8th September 2006 -- 14 THE CHAIRMAN: I am not quite clear whether this is relevant 15 to the issues before this Inquiry. I have already ruled 16 that the question about blood on the watch is not a 17 matter which comes within my remit. 18 MR RUSSELL: On the DNA evidence and the requirement of the 19 production of the swabs which had not been tested and 20 which -- 21 THE CHAIRMAN: Yes, but could you just address the point I 22 am making? 23 MR RUSSELL: I beg your pardon, sir? 24 THE CHAIRMAN: This does not come within my Terms of 25 Reference and I am confined to those. However much I page 141 1 might be interested to know about other matters, I am 2 confined by the terms that I have been given. 3 MR RUSSELL: But then, sir, you refer to the Terms of 4 Reference as though they were sent down from heaven. 5 The Terms of reference were not sent down from heaven: 6 they were agreed between you and the Justice Minister 7 and you approved them between you. 8 When we came before you in the opening hearing and 9 the subsequent hearing, we made submission to you as to 10 other issues which ought properly to be addressed. If 11 you look at the transcript, you will see that you 12 indicated that you would give further consideration to 13 the issues I had raised on Asbury to include the fact 14 that Y7 and all of the other fingerprint marks were 15 primary exhibits in the McKie case and, so far as they 16 were, the matter was never revisited. So the issue of 17 what this Inquiry's Terms of Reference are does not lie 18 with the gods but it does, with respect, lie between you 19 and the Justice Minister who agreed those terms between 20 you and if I am wrong, I stand to be corrected. 21 But what I do say is when the DNA issue was raised 22 with Lord Boyd of Duncansby and a final deadline was put 23 to him, that deadline was 10.00 am on 5th October 2006. 24 Lord Boyd of Duncansby resigned effective 25 midnight 4th October 2006. He went ten hours before the page 142 1 deadline on the DNA Asbury evidence, sir. 2 THE CHAIRMAN: I still adhere to the view that I am not 3 investigating the question of blood on the watch. 4 MR RUSSELL: Sir, when you have issues which are not before 5 the Inquiry -- sorry, which you consider should not be 6 addressed as not coming within the Terms of Reference, 7 what I have difficulty in understanding is, simply 8 because you might consider them irrelevant, why are they 9 redacted and why is the Asbury legal team permitted to 10 raise these issues concerning an alternative murderer 11 when all of the evidence against Asbury is being 12 redacted? 13 THE CHAIRMAN: I do not regard that as relevant evidence and 14 I been more alert to it, I certainly wouldn't have 15 admitted it. 16 MR RUSSELL: Sir, thank you. I have nothing further to say. 17 THE CHAIRMAN: Thank you for your assistance. The only 18 matter I would like to mention to you is that of course 19 I am very anxious to have the benefit of the evidence of 20 Mr Swann in this Inquiry and of Mr Leadbetter, and I 21 know you have another person who may or may not be 22 available to give evidence, but I just want to stress 23 that I very much hope that they will give evidence and 24 be in a position to do so. 25 MR RUSSELL: Sir, Malcolm Ross is a Core Participant), Peter page 143 1 Swann is Core Participant. The reality is that we 2 really have no role to play as Core Participants. It is 3 not an issue to be argued. We will not sign your 4 confidentiality undertakings: so that is an end to the 5 matter. 6 What I would wish to make very clear, though, is 7 that those of my clients who are witnesses will, through 8 hell and high water, be witnesses to this Inquiry, they 9 will give their evidence to the Inquiry. John Berry, 10 who has cancer, may have to give evidence -- 11 THE CHAIRMAN: I realised that. I didn't want to mention 12 him by name. 13 MR RUSSELL: I have to say that because any reference to 14 "may or may not give evidence" will be seized upon on 15 the basis that they are backing off or something like 16 that. So I make it very clear that Martin Leadbetter is 17 not here today because he is recuperating from surgery, 18 John Berry is unable to give evidence personally to the 19 Inquiry because he has cancer, and Peter Swann is here 20 as a witness to the Inquiry. His evidence will be 21 placed before the Inquiry. His fingerprint charts will 22 be placed before the Inquiry. He will stand by his 23 evidence as Shirley McKie's fingerprint expert 24 identifying mark Y7 as her left thumb. That is not 25 going to change and he will appear before the Inquiry page 144 1 and deal with the matters accordingly. 2 THE CHAIRMAN: Thank you. I am sure he will co-operate 3 fully. Thank you. 4 It looks as if that really is as far as we can go 5 today because you have cancelled -- 6 MISS CARMICHAEL: Yes, I did not wish to keep the witness 7 waiting. So I am sorry we have lost a little time. 8 THE CHAIRMAN: We will sit tomorrow and continue with the 9 evidence tomorrow morning at 10.15. 10 (3.28 pm) 11 (Adjourned until 10.15 am the following morning) 12 13 14 15 16 17 18 19 20 21 22 23 24 25