page 1 1 Tuesday, 23rd June 2009 2 (10.15 am) 3 MISS CARMICHAEL: Sir, you recall that at the end of 4 business on Friday senior counsel was examining 5 Mr Padden. Yesterday senior counsel received a request 6 from the legal representative of Miss Scott, who you 7 will remember was to be called as a witness today, 8 requesting that if possible her evidence should be taken 9 first today because of professional difficulties that 10 she might have otherwise. 11 Mr Padden has been kind enough to indicate that that 12 does not cause him any inconvenience so clearly I am in 13 your hands, Mr Chairman, about that matter. But if that 14 course be satisfactory, I would propose to continue with 15 Miss Scott's evidence at this stage. 16 THE CHAIRMAN: Very good. 17 MISS CARMICHAEL: Senior Counsel has also suggested that in 18 order to complete that chapter of evidence, it might be 19 sensible to take Mr McKinlay straight afterwards before 20 returning to Mr Padden just on that particular chapter, 21 bringing it to a close for now. 22 THE CHAIRMAN: Whatever is convenient. 23 MISS CARMICHAEL: In that case, sir, the next witness would 24 be Marion Scott. 25 MARION SCOTT (sworn) page 2 1 THE CHAIRMAN: Could we have your full name please for the 2 record. 3 A. Marion Scott. 4 THE CHAIRMAN: Thank you very much. 5 Examined by MISS CARMICHAEL 6 Q. Now, Miss Scott, it's hard to hear people in this room 7 if they don't speak quite closely into the microphones 8 so do draw it close to you. Thank you. 9 Miss Scott, could you tell the Inquiry, please, 10 where you work? 11 A. I work at the Sunday Mail newspaper. 12 Q. And how long have you been doing that? 13 A. I've been a journalist for 34 years and at the Sunday 14 Mail for about 25 of those. 15 Q. Miss Scott, do you know a gentleman called Les Brown? 16 A. Yes, I do. 17 Q. How did you come to know him? 18 A. I had known him for a number of years as a senior police 19 officer and also involved with the Federation Against 20 Corporate Theft. And a number of years ago I contacted 21 him after I'd been doing a series of stories about a 22 case involving the death of an old lady called Annie 23 Davies. Because of Les Brown's experience as a police 24 officer I asked him if he would take an independent look 25 at the case and tell the family if there was anything page 3 1 untoward in what had happened to Annie Davis and this he 2 did and he was very helpful to the family. 3 As a result of that, Brian Davies and Les Brown and 4 I were all talking about how there were a lot of cases 5 like this where families, who had been left without 6 questions answered in cases like Annie Davies, needed 7 somebody to support them and help them and the two of 8 them set up an organisation, principally Brian Davies 9 with Les on board, they formed an organisation called 10 The Search for Justice. That was principally to help 11 people who had no other means of support and help and 12 this they did very successfully. 13 Q. Now, there came to be a time when you had some contact 14 with Mr Brown about the case involving Shirley McKie. 15 A. Yes. 16 Q. How did that come about? 17 A. Les Brown contacted me and asked me if I would be 18 interested in speaking to the fingerprint people and I 19 said to him, yes, I would, of course. Before this, he 20 had approached me and said that a friend of a friend, 21 some retired police officer in his bowling club, had 22 told him that in his opinion Shirley McKie had been let 23 into the murder house, Marion Ross murder house, by a 24 police officer who had fancied her and I said to Les at 25 the time there had been a number of rumours going round page 4 1 for many, many years regarding this case and unless 2 there's any actual factual evidence or proof, that's all 3 it is, it's rumours, gossip, talk, smears, whatever 4 complexion you would like to put upon it. 5 Q. If I could just stop you there, Miss Scott, just to be 6 quite clear, what was the first contact between yourself 7 and Mr Brown about the case involving Shirley McKie? 8 A. It was when he asked me about -- he mentioned to me 9 about his friend of a friend and after that he, some 10 time after that, he said to me that would I like to 11 speak to the fingerprint people. 12 Q. Just on the first contact, as best you can, please tell 13 the Chairman what Les Brown said to you on that first 14 contact about the friend of a friend of a friend. 15 A. He said that he had been speaking to someone in his 16 bowling club -- and I got the impression it was a 17 retired police officer -- and it was a friend of a 18 friend of his who told him that Shirley McKie had been 19 let into the house by a police officer who was on guard 20 duty at the property because the police officer fancied 21 her. 22 Q. Was this a telephone contact that Mr Brown made with you 23 or did you -- 24 A. Yes, I think it was in the first instance. 25 Q. When did that take place? page 5 1 A. I think a couple of weeks probably before the 2 fingerprint people came up. 3 Q. In that first telephone conversation, did you make any 4 arrangement to meet? 5 A. To meet with Les Brown? 6 Q. Yes. 7 A. No. I said to him if he or anyone had ever come up 8 with any factual information regarding the case of 9 course we would be interested but I did made it clear to 10 him there had been a number of stories, gossip, innuendo 11 over the years regarding this matter but unless there 12 was factual evidence it's not something we would take 13 up. 14 Q. Did you discuss with him in that conversation the 15 content of any of the rumour or innuendo that you're 16 telling us about? 17 A. Yes, I did say to him there'd been all kind of -- he 18 said, "What kind of rumours", and I said, well, it 19 ranges from, you know, Shirley was in the house, she 20 wasn't in the house, somebody had planted her 21 fingerprint in the house because they were jealous of 22 her, right down to there's been some kind of sexual 23 liaison in the house, also that she was a murder ghoul 24 and that was why she was in the house. 25 These stories have been circulating for a large page 6 1 number of years. They are well known in the media, not 2 just in the media but also I think if you'd walked into 3 any pub or in the back of a taxi you would hear stories 4 like this. 5 These were also issues that I myself and I know a 6 number of other journalists had personally raised with 7 Shirley McKie's father, Iain McKie, and nobody at any 8 time had ever found any evidence or any fact to back up 9 any of these stories. It wasn't a secret. It had been 10 out there for quite some considerable time. 11 Q. You said there was some further contact about meeting, 12 as you put it, the fingerprint people. 13 A. Yes. 14 Q. Who made that contact? 15 A. It was Les Brown contacted me. 16 Q. Again, was that telephone or -- 17 A. That was by telephone. He asked me if I'd like to come 18 to his house and meet with them and I got -- I'm not 19 really sure whether he contacted them or they contacted 20 him. I did get the impression that he had contacted 21 them. I'm not sure on that point. And as a journalist 22 of course I was interested in speaking to them so that's 23 why I went to see them. 24 Q. Did you in fact go to his house? 25 A. Yes, I did, yes. page 7 1 Q. Who was there? 2 A. Les Brown was there, his wife was there, Fiona McBride 3 was there and I think Alister Geddes was there and 4 myself. 5 Q. When did this happen? 6 A. I think it was the last week in February 2006. I think 7 it may have been a Thursday. But I'm just remembering 8 that -- it may have been a Thursday. It was either 9 Thursday or Friday, the last week in February. 10 Q. What did you understand the purpose of the meeting to 11 be? 12 A. Well, the SCRO people said that they had a number of 13 issues that they believed had remained unresolved and 14 they were obviously looking for someone to speak to them 15 about that and, as a journalist, of course I was happy 16 to speak to them and hear what they had to say and, you 17 know, that was the purpose of the meeting. 18 Q. What happened at the meeting? 19 A. Well, we all had a long talk. The fingerprint people 20 raised a number of grievances about the system, how they 21 felt they had, you know, they had come out of it. I 22 seem to remember that Fiona had said that she had felt 23 that her and the other officers -- I remember the 24 phrase -- had been hung out to dry over the case and 25 they had concerns about the future, I think. page 8 1 Q. Was the question of whether Shirley McKie had been in 2 the house discussed at that meeting? 3 A. I don't recall who had actually raised the issue, 4 whether it had been Les Brown saying again about his 5 friend of a friend, whether it was one of the SCRO 6 people or whether it was myself saying that these 7 stories have been circulating for years. I just can't 8 remember. 9 But the focus of the meeting was not that, the focus 10 of the meeting was to speak to the fingerprint people to 11 hear what they had to say. If there had been anything 12 that had been new or newsworthy in what they had said, 13 then of course we would have taken that up. 14 Q. How did the meeting come to an end? 15 A. Well, I had to go back to the office and it's my 16 recollection I think that I left first, I headed back to 17 the office, I was involved in another story and I looked 18 at some of the issues and finished off the other story I 19 was doing and started checking up on whether anything 20 the fingerprint people had said was, in fact, new or 21 different to what had been said before. 22 I recall that I think it was a Saturday I had called 23 Mr McKie to raise some of the issues that had been put 24 forward by the fingerprint people when we were talking 25 about the case and it became apparent that it was really page 9 1 nothing new. All the angles and all the things they had 2 been saying had in fact appeared in other papers before. 3 I said -- I remember distinctly saying to Iain McKie 4 the fingerprint people feel that they've been hung out 5 to dry in this whole matter and I distinctly remember 6 Iain saying, "If they think they've been hung out to dry 7 my daughter's life has been destroyed, her career has 8 been destroyed and she's still the subject of the most 9 horrible sexual innuendos", and I said to Ian, "They're 10 still claiming that stuff all the time". 11 We talked about another couple of points regarding 12 the case and I put the phone down, I spoke to the news 13 desk, we talked about the whole issue and the news desk 14 and the editor felt there was nothing new in anything 15 so, therefore, we weren't going to go ahead on the basis 16 of what I learnt from that meeting. 17 Some short time after that, Les Brown came on the 18 phone to me and said, "Are you going to do the story 19 about the fingerprint people", and I explained to him, 20 "No, Les, there's nothing new in anything that was 21 raised so, therefore, unless there's nothing new 22 there's, you know, there's no point in us going forward. 23 The news desk aren't interested". He seemed quite put 24 out by this and he said, "Well, what about the sexual 25 innuendo stuff", and I said, "Les, I've told you before, page 10 1 this is nothing more than innuendo, gossip, stories. 2 There's nothing factual to back it up". I think he put 3 the phone down. I don't think he was very happy that we 4 weren't going to be taking this up. 5 Q. When you speak about the sexual innuendo stuff, did you 6 understand him to be referring to the information he 7 said he had from somebody at the bowling club or to the 8 rumours that there had been some form of sexual liaison 9 at the house? 10 A. As far as I was concerned there was no factual evidence 11 to show that any of these points were anything more than 12 rumour and innuendo and gossip. There was no facts at 13 any time so I'm not really sure what he was particularly 14 meaning. 15 Q. Did you yourself take any notes at the meeting or of any 16 of your telephone conversations with Mr Brown? 17 A. At the meeting with the SCRO people? 18 Q. Yes. 19 A. Yes, I did, yes. I did take some notes. 20 Q. Do you still have them? 21 A. I don't think so -- not by this time. We only keep them 22 for a couple of years and given that we hadn't gone 23 ahead with the story there was no point really. 24 Q. Did you tape the meeting? 25 A. No. If there had been anything that came up during that page 11 1 meeting that I thought was controversial or I thought 2 was worth really following up in a very hard way, then 3 perhaps I would have. But on that occasion, no, I 4 didn't. We don't tape every single thing. It would be 5 utterly impossible for a journalist doing their job to 6 do that. 7 MISS CARMICHAEL: Thank you, Miss Scott. 8 THE CHAIRMAN: Just on that point I remember to ask you, 9 Mr Brown suggested that you do normally tape interviews. 10 Is that your practice? 11 A. Only if it's something that's contentious or 12 controversial or if I'm speaking to an official body and 13 perhaps looking for a comment from them and then in that 14 instance then we would tape somebody. But it's utterly 15 impractical. I would speak to sometimes in a week 16 hundreds of people. We couldn't possibly tape everyone. 17 I would spend my whole life listening to tapes rather 18 than doing my job. 19 THE CHAIRMAN: But it wouldn't be incorrect to say you very 20 often do tape interviews. 21 A. All journalists do. I'm sure you've seen it on the 22 television where you will see a posse of journalists 23 holding their tape recorders up to someone. It is a 24 practice that's done but in the instance where I was 25 meeting with the SCRO people, there wasn't -- it wasn't page 12 1 the kind of meeting where I would have taken out my tape 2 and taped it. 3 If something had come up that I thought, well, this 4 is worthy of perhaps pursuing then perhaps I may have 5 done you know but given that there wasn't there was no 6 need to in that instance. 7 THE CHAIRMAN: Are there any applications for leave to 8 cross-examine there is witness? 9 I will ask you first, Mr Holmes. 10 MR HOLMES: No, thank you, sir. 11 THE CHAIRMAN: Miss Galbraith. 12 MISS GALBRAITH: One matter, sir, it relates to allegations 13 made by Mr Brown in relation to the organisation Search 14 for Justice. 15 THE CHAIRMAN: If there is something about that, certainly 16 I'll let you ask it. 17 Cross-examined by MISS GALBRAITH 18 Q. Miss Scott, in his evidence to the Inquiry Mr Brown 19 implied that as a result of a phone call from Iain McKie 20 that the organisation you mentioned Search for 21 Justice ceased to exist the next day but for those 22 participants with LiveNote that was on day 11 at 23 page 89, line 20. 24 What is your understanding or do you have any 25 knowledge of that. page 13 1 A. I wasn't actually party to the phone calls between 2 Mr McKie and Brian Davies, the founder of Search for 3 Justice. It's only what I heard afterwards learned 4 afterwards from Brian Davies and Iain McKie. 5 Q. What was that? 6 A. That, firstly, Iain -- it's my understanding that Iain 7 McKie had received phone calls from a couple of other 8 journalists, at least one, perhaps a couple I'm not 9 really sure, and they had repeated the sexual 10 allegations as being fact. It's my understanding that 11 he asked who told him that and I understand that they 12 had said Les Brown and as a result of that I believe 13 that he had spoken to Brian Davies and Brian Davies was 14 quite horrified that Search for Justice was being 15 connected in any shape or form with what Les Brown had 16 been saying because the organisation was set up to help 17 ordinary people, not professional people who had a bevy 18 of lawyers, professional people to help them, and I 19 think in that instance for both reasons I think that 20 Brian Davies put a disclaimer on the Search for 21 Justice website distancing himself from what Les Brown 22 had been saying. 23 Before that Brian Davies had made it clear to Les 24 Brown, I understand, that he was not in favour of him 25 supporting the fingerprint people, but just for those page 14 1 reasons that it was there to help ordinary people and 2 not professional people. 3 Q. It may be evident from the evidence today Miss Scott but 4 did you believe there was any truth in the import -- 5 A. If there had ever been any truth I never found any 6 factual evidence to support any of those allegations or 7 gossip or innuendo we would have done this story. I'm 8 sure any other journalist would have done the story. To 9 this day to my certain knowledge, my own personal 10 knowledge, no-one in my office, certainly not myself has 11 ever found anything factual to support any of those 12 allegations and that's my belief at this point. 13 MISS GALBRAITH: Thank you. 14 THE CHAIRMAN: Thank you very much. 15 (The witness withdrew) 16 MISS CARMICHAEL: I think Mr McKinlay is in the hall and 17 able to come down to the witness box just now. 18 GORDON ALEXANDER McKINLAY (sworn) 19 THE CHAIRMAN: Your full name? 20 A. Gordon Alexander McKinlay. 21 THE CHAIRMAN: Take a seat please, Mr McKinlay. 22 Examined by MISS CARMICHAEL 23 Q. Mr McKinlay, we all need to speak quite closely into the 24 microphones to make ourselves heard here so it might 25 help -- page 15 1 A. Bring it in a bit. 2 Q. Bring it in. That's helpful. Thank you, Mr McKinlay. 3 Mr McKinlay, could you tell us what work you do? 4 A. I'm a golf professional. 5 Q. Where do you do that? 6 A. Troon Golf Courses in Ayrshire. 7 Q. What does that involve? 8 A. I'm a club professional which involves running a golf 9 shop and I teach. 10 Q. Do you know a gentleman called Les Brown? 11 A. I met him once, yes. 12 Q. How did that come about? 13 A. He came into my shop, I forget now, some time ago and he 14 said that he wanted to speak to me about the case 15 involving Ms McKie and the fingerprints. 16 Q. When was that? 17 A. I don't know. 18 Q. Did he say why he wanted to speak to you? 19 A. He said that he thought I had information with regard to 20 the case, with regard to the -- regarding a police 21 officer being outside the building where Ms McKie was to 22 go into -- she was to go into, yes. 23 Q. Did he tell you where he got the information to suggest 24 that you could help him? 25 A. No. page 16 1 Q. Could you tell the Chairman just to the best of your 2 recollection just exactly what he did say to you? 3 A. He came into the shop when I was dealing with customers 4 in the shop and he said that he would like to speak to 5 me with regard that. I said at this moment in time it 6 wasn't a proper time to do this. I found, actually, the 7 whole incident a bit unnerving. 8 After that, he asked me if I knew a police officer 9 who was involved in it and I said I didn't know any 10 police officers involved in it and he reckoned or said 11 to me that he knew of somebody that I had been talking 12 to that I'd said I did. 13 Q. Did he say who he thought the police officer was that 14 you might have known? 15 A. No. 16 Q. What did you say to him? 17 A. After a while I asked him to leave -- that's my 18 recollection. As I say, this maybe was a year ago. He 19 said if I knew a name of a police officer who was 20 involved, would I phone him or get this police officer 21 to phone him and he gave me a card. 22 Q. What was your response to that? 23 A. I didn't get back to him because I know of no police 24 officer who was involved in the case of Ms McKie. 25 Q. Did you tell him you might get back to him? page 17 1 A. I can't recall. 2 Q. Mr Brown has suggested that you may have offered to get 3 a police officer to call him. What's your response to 4 that? 5 A. I said that earlier, that he asked me if I knew of a 6 police officer to get him to call him. 7 Q. Why did you not just tell him, "Look, I don't know 8 anything about this"? 9 A. Because this was all hearsay, it was all, say, corner 10 shop gossip. The case was obviously of a high profile 11 and with that there was lots of chat involved. 12 Somewhere along the line, obviously, the Chinese 13 whispers had got out from corner shop gossip that we 14 had. 15 Q. Had you been involved in gossip at the golf club, say, 16 about the case? 17 A. Yes. 18 Q. Had you spoken to any police officers about it at the 19 golf club? 20 A. No. 21 Q. Do you know any police officers who work at Kilmarnock? 22 A. No. 23 Q. Did you know any at the time that Mr Brown spoke to you? 24 A. No. 25 Q. Mr Brown has given an account to the Inquiry that he page 18 1 said to you, "If you do not know what I'm talking about 2 say so and I am out of here"? 3 A. Mm-hm. 4 Q. Do you remember him saying that? 5 A. No, I don't remember him saying that. 6 Q. May he have said that? 7 A. He may have said that. I don't remember. 8 Q. Do you personally know anything of substance about the 9 Shirley McKie case and, in particular, about anybody who 10 might have let her into the house? 11 A. I know nothing about the case as off the television and 12 the newspapers at the time. It was a high profile case, 13 obviously, and of local interest and at some juncture in 14 the last ten years or whenever the case was -- I can't 15 recall -- I've obviously been involved with chat. But 16 as far as any officers involved in the case, I know 17 none. 18 Q. Have you ever spoken to anyone who has claimed to have 19 personal knowledge of the question of whether Shirley 20 McKie was let into the house? 21 A. No, I've not spoken to anyone. 22 MISS CARMICHAEL: Thank you, Mr McKinlay. 23 THE CHAIRMAN: Does anybody wish to seek leave? 24 MR HOLMES: Just one question, sir, about the source of the 25 gossip that this witness has mentioned. page 19 1 THE CHAIRMAN: The source of the gossip? 2 MR HOLMES: Yes, he mentioned there was rumour and 3 speculation at the golf club but he said that he doesn't 4 know any police officer. I'm just wondering who it 5 was who was speculating about the case. 6 THE CHAIRMAN: Have you any recollections? 7 A. Again, it was maybe -- when did the case start, sir? 8 Ten years ago? So it was maybe chat. We have thousands 9 of people who come into the shop and with that there's 10 obviously been some chat and this chat has been 11 escalated into something that it isn't. 12 THE CHAIRMAN: I see. Thank you very much, Mr McKinlay. I 13 am sure it is a busy time at Troon and thank you for 14 coming and assisting. 15 (The witness withdrew) 16 GREG PADDEN (continued) 17 THE CHAIRMAN: Thank you for agreeing to having your 18 evidence interrupted. It is very helpful, thank you. 19 Examined by MR MOYNIHAN (continued) 20 Q. Mr Padden, if you would feel more comfortable, feel free 21 to take off your jacket. 22 A. Thanks. 23 Q. I will come back to the question of the blind test and 24 the comparator machine in a second when we come to look 25 at that but I want to begin with some questions with you page 20 1 in relation to your possible involvement with the 2 fingerprint XF. 3 A. Yes. 4 Q. If you look below the comparator screen just on the 5 floor there are two sleeves there, one purple and one 6 green. 7 If you look inside one of those, you may find, 8 actually, a copy of the photograph of XF. 9 A. Yes, I can see it. 10 Q. Just put that down. Have a look at it yourself because 11 I want to ask some questions about that. For others on 12 the system, it's CO1987. 13 Can you just look at the computer screen and confirm 14 what you are looking at is in front of you in paper copy 15 is what is on the screen. 16 A. Yes, that's correct. 17 Q. What I want to begin with is in paragraph 3 of your 18 statement you tell us that looking at the document that 19 you were shown, which for us is CO1987 (the one on the 20 screen), you recognise possibly that one of your 21 initials is on that photograph but you say you are not 22 100 per cent sure? 23 A. Yes. It's not exactly like how my current signature is 24 but, looking at it again, I'm pretty sure it is mine. 25 Q. You say pretty sure it is yours. You mean that you page 21 1 personally have initialled this photograph at one stage? 2 A. It looks like it. As I say, I've got a very simple 3 signature. It is susceptible to change depending on the 4 day, so I'd say looking at it I'm pretty sure it is 5 mine. 6 Q. For identification purposes on the photograph on the 7 screen we should look to the word "screen" and beneath 8 that there is a line of initials beneath that the date 9 "21/01/97"? 10 A. Yes, that's correct. 11 Q. Your initial or initials would be maybe the last in the 12 series? 13 A. Yes, they would. 14 Q. Just that is highlighted on the screen now. 15 A. Yes. 16 Q. I have not brought the photograph for this purpose but 17 nonetheless since you have the photograph in front of 18 you would you just have a look at the original and make 19 sure it makes no difference to you. 20 A. Yes, I'm pretty sure it's my signature. 21 Q. What is the significance of your initial appearing on 22 that photograph? 23 A. What it means is that I would imagine that Hugh 24 Macpherson, who's the first signature there, has put 25 that impression on the comparator which is what we have page 22 1 beside us here. He's asked a number of people to 2 examine that impression. 3 Q. If I can stop you because it is important, perhaps if 4 you move the microphone over to your left-hand side. 5 A. Is that better? 6 Q. Ys, anything that helps, so people can hear your 7 evidence. 8 So you think Mr Macpherson has put the photograph on 9 the comparator machine? 10 A. Yes. That's what it looks like to me. He'll have then 11 requested the other officers to examine the impressions 12 that are on the comparator and if those examiners have 13 agreed with the identity of XF then they've signed for 14 doing so. 15 Q. The word "screen" that's above the line of initials, 16 what's the significance of that word? 17 A. It means the impression, rather than perhaps being 18 passed to an individual, was originally housed on the 19 comparator. I would say it doesn't necessarily mean to 20 say that the person's involved, the four signatures 21 there, necessarily carried out the examination on the 22 screen. If you're looking at an impression on a 23 comparator and you feel in any way it is perhaps a 24 particularly difficult mark you would take it away to 25 your desk. You would examine it and compare it in the page 23 1 normal fashion using your magnifying glasses. You would 2 then return it to the screen and sign it. It's a way to 3 house those signatures. It's a central point where 4 those signatures could be recorded. 5 In relation to working practice today we have got a 6 diary page and what we do now is after each examination 7 and after each person's conclusions they record those 8 conclusions on the diary page so that becomes the 9 running notes of how that identification is progressing. 10 But back in '97 it wasn't uncommon for the signatures to 11 be recorded on the impression itself. 12 Q. We will look shortly at how a comparator machine works 13 and we have brought it through today for that purpose 14 but what I want to begin with is, looking at the series 15 of initials and the understanding that yours is the 16 fourth and that you have personally written your 17 initials? 18 A. That's correct, yes. 19 Q. Would I understand that, therefore, it would seem likely 20 that you were the fourth person to have checked XF? 21 A. That's correct, yes. 22 Q. At some point from the way it's completed it means that 23 your initials have been written on the comparator 24 screen? 25 A. That's correct, yes. page 24 1 Q. Would it be possible, as the fourth person checking the 2 print, that you viewed it only on the comparator screen? 3 A. That's possible. 4 Q. What I would like you to do is we will come back and 5 look in some more -- in fact, if I could perhaps just 6 spell out the date as 21st January 1997, what would that 7 date signify to you? 8 A. It was the date of examination. It was the date all 9 four signatures have been put on that impression. 10 Q. If you go, please, to the second page you may want to 11 turn over the photograph you have, the actual photograph 12 you have in front of you, just keep that out of the 13 wallet just now. 14 What you see on the computer screen is in fact what 15 you can see on the back of the photograph; is that 16 correct? 17 A. Yes, that's correct. 18 Q. So written at the top is: 19 "21/01/97 PC Kirkland informed of ident info being 20 passed on to DI McAllister"; is that correct? 21 A. That's correct. 22 Q. What would you understand by that note? 23 A. What I would understand by that note is I believe the 24 writing would be Hugh Macpherson's. I could be wrong 25 about that but Hugh is obviously wanting to get the page 25 1 information to DI McAllister particularly and he has not 2 been available at that point so he has spoken to another 3 officer on the understanding that he would pass that 4 information on. 5 Q. We'll look at the other parts that are written on that 6 in a moment. But can you tell me what the practice was 7 in 1997 regarding writing details or recording details 8 on photographs? You have spoken of officers writing 9 initials on a comparator screen. 10 How did things come to be written on the photograph? 11 A. To be honest, I'm struggling to remember specifically if 12 it was common practice. It doesn't seem unusual to me 13 for it to be there but whether or not it happened on 14 every occasion, my recollection isn't that clear on 15 specifically 1997. Certainly, again, if I refer to 16 current practice, it would always be recorded on the 17 diary page but we didn't always have that facility then. 18 So as a means to record it, a physical means to record 19 it, it is there somewhere. 20 Q. So it doesn't come to any surprise we would find on one 21 of the images of the fingerprints in this case some 22 handwriting to record the officers who have been 23 involved in identification? 24 A. No, it would not be a surprise, no. 25 Q. We will look at the paperwork shortly that exists. page 26 1 Immediately beneath what we've just read there is a line 2 and then below that some writing that seems to be 3 something "imp", and then some I can't read, "checked 4 against arrest form, okay." 5 Can you read it any better than I can on the 6 original? 7 A. I can't actually read the second word after "impression" 8 but I know what it's implying, if you would like me to 9 explain. 10 Q. I think it has been suggested to me from whispers to my 11 left it says "impression overleaf checked". Is that 12 possible? 13 A. Quite possible, yes. 14 Q. Can you then just interpret what's written for me, 15 please? 16 A. What happens when a person carries out an examination is 17 that we retain a number of forms for that individual in 18 our files. It could be that a person has got five, six, 19 seven previous forms in our system. We are at liberty 20 to use any of those forms to get our identification. 21 What we do require though when it goes to court is a 22 form specifically in relation to that crime. That form 23 has to be -- sorry, the identification itself has to be 24 provable against that current form that relates to the 25 crime. So what that's saying is that this impression page 27 1 has been checked against a form that's been taken in 2 relation to the crime and it contains sufficient detail 3 to allow it to be progressed as an ident for court 4 purposes. 5 Q. If I add in a detail that's known to me and that is that 6 Mr Asbury was detained on 22nd January. So that's the 7 day after the day that's marked and that fingerprint 8 ten-print forms were taken from him that day. 9 A. Okay. 10 Q. That would be consistent with your understanding that an 11 initial identification may have been done by reference 12 to one set of forms -- 13 A. That's correct. 14 Q. -- then when his arrest forms become available it is 15 rechecked against the arrest forms? 16 A. That's correct, it's rechecked. 17 Q. The reason for mentioning the date is if I factor in the 18 date of 22nd January there would not appear to be on 19 that photograph a record that you were involved on any 20 day other than 21st January? 21 A. That's correct, yes. 22 Q. I take it, Mr Padden, that other than for the fact that 23 your initial is on XF you now have no recollection of 24 this at all? 25 A. No, I don't. page 28 1 Q. The final detail that is on the back of the photograph 2 is "reversal requested from IB". Can you again 3 interpret that for us? 4 A. That's a bit more difficult to explain. What it means 5 is the impression itself as it's been laid down, what 6 happens occasionally, depending on the pressure that's 7 applied to that, it can reverse the images so what we 8 would see normally as being black on the known 9 impression becomes white and what is white becomes 10 black. So you're actually looking at a negative image. 11 So what your doing is looking at -- you have the known 12 form with the fingerprint impression as it's been rolled 13 but the fingerprint impression taken here will be a 14 negative image of that, so you're looking at what would 15 be a ridge ending on the known may be a bifurcation on 16 the unknown. So to get the two the same so that allows 17 you to make the best comparison what we would do is 18 request the Identification Bureau perform -- it's 19 basically flipping it, it goes from negative to the 20 correct way, so therefore the examination is then 21 carried out against two impressions that are identical 22 in the format. 23 Q. Why would reversal be studied after some officers have 24 signed the identification on the photograph that you 25 have before you just now? page 29 1 A. The reason for that is it's not necessarily a hindrance 2 to the identification. It can be but if you've got a 3 reasonably clear impression you can go ahead and carry 4 out a comparison against a reverse mark without too much 5 difficulty. 6 Q. But would calling for a reverse suggest some 7 reservations about the quality of the original 8 photograph that you have in front of you? 9 A. No, it's just best practice to be looking at like 10 against like. You know ultimately you're going to be 11 going to court at that time you would produce an 12 enlargement. I'm sure an enlargement was produced in 13 relation to this impression. We demonstrated those 14 enlargements to members of the jury and the jury members 15 may have struggled to understand that we were looking at 16 one impression that was negative of the other, so for 17 consistency, for presentation, it makes more sense to 18 have two similar impressions. 19 Q. If we bring up CO1988 and it may just by coincidence be 20 in the same envelope. Try 1986 perhaps. 21 Do you have the reversal in the envelope? I can't 22 remember whether we brought it through or not? 23 A. I would suggest that this is it here. 24 Q. Is that what you can see on the screen as well? 25 A. No, I would say that's the image before it's been page 30 1 reversed, possibly. It's hard to tell the way it's 2 coming up. The image on the screen is the reversed 3 image. 4 Q. So the image on the screen is the reversed image? 5 A. Yes, the one here I'm looking at has been reversed. So 6 it's the true image. 7 Q. If you look in the envelope there is in front of you, if 8 you can see if we've brought through from Edinburgh the 9 reversal or not? 10 A. Yes, that's it here. 11 Q. That's it? 12 A. Yes. 13 Q. The one on the screen is just the original? 14 A. That's the original. 15 Q. We will find the computer reference in a moment but so 16 far as the reversal is concerned, just looking at the 17 original in your hand, is there any record there of the 18 individuals who may have studied the reversal? 19 A. No. 20 THE CHAIRMAN: Is it more for presentational purposes rather 21 than for rechecking or both? 22 A. Both. If you have got a particularly difficult mark, a 23 mark that requires a lot of examination, you obviously 24 always want to be looking at like against like wherever 25 possible because you have to factor in area if you're page 31 1 looking at reversed against non-reversed image. 2 THE CHAIRMAN: I see. 3 MR MOYNIHAN: I am sorry, if we could look at CO1989. I 4 apologise, I have now at long last found the reversal 5 that you have in front of you. If we look at the next 6 page perhaps of the computer version ... perhaps there's 7 nothing because it's blank on the reverse. 8 What we've got then is, it would seem as far as the 9 photographs are concerned, a record, because your 10 initial is on it, of you having seen the original image 11 on 21st January? 12 A. Yes, that's correct. 13 Q. I will come back and look at some more of the writing on 14 the original screen just now but if I can take you 15 through various bits of paperwork and we will see what 16 is happening. 17 We've looked at the image, which was CO1987. If I 18 could ask you to be shown on the screen DB0002 you'll 19 see that that's something described as a major incident 20 diary page and if we go to the first page of the 21 text ... just stop there. 22 Do you recognise this sheet? 23 A. That was the diary pages that we used at that period of 24 time. 25 Q. What was the purpose of keeping this diary sheet? page 32 1 A. At that period of time we didn't have what we now have, 2 which is an office management system, which is a means 3 to record the impressions received in a case, the number 4 of suspects and other information in relation to a case 5 that had been received at that point. A lot of that 6 information was recorded on that form. At the top 7 right-hand side you can see the box with a number of 8 figures in it. That's detailing some of the information 9 that I'm talking. They've got the number of marks, the 10 number of eliminations, the number of suspects, the 11 number of marks that have been insufficient in the case. 12 So that, first of all, details the content case, if you 13 like. The top of the form details the crime reference 14 number, the date it was received and the type of crime 15 it was and the locus, what we occasionally would have on 16 the left-hand side there, where it says "summary", is, 17 as it suggests, a summary of what the crime was and what 18 happened. 19 Below the top, the bottom line of the top third of 20 the page, this was the running note of what had been 21 going on in that case. 22 Q. If I just stop you before we look at the running note, 23 to the right of the box summary there is in fact a 24 summation that has totals 428, et cetera, some 25 information that -- page 33 1 A. That's correct. 2 Q. Can I take it that information is information that would 3 have been completed at the end of the process? 4 A. What happens is you get a number of what we call 5 additional impressions. At any time during a case, 6 there's different articles being examined all the time. 7 So what we have is we start off with a certain amount of 8 impressions to look at and that would be added to over 9 the course of the inquiry. 10 Q. Then it must be though this particular box is completed 11 at the end so we know that in the end result there were 12 428 impressions completed? 13 A. To be exhaustive it would have to be done at the end. 14 Q. Then what is set out below in the narrative is that a 15 contemporaneous narrative day-on-day? 16 A. Yes, it would be. 17 Q. If we look at the foot of that page, for 21st 18 January 1997, do we have an entry that would correspond 19 to what is written on the photograph, the last line, "DI 20 McAllister informed of ident for D Asbury"? 21 A. That's consistent with what's written on the back of the 22 impression. 23 Q. So far as this diary page -- we will turn over just in a 24 moment -- there is no record there of the four 25 individuals who had made that identification; is that page 34 1 correct? 2 A. No, there isn't. 3 Q. Do I take it from what you said in your statement that 4 it would not have been the practice at that time to keep 5 detailed records beyond what, by chance, is on the 6 photograph here of who were involved in the initial 7 identification? 8 A. There's another circumstance as well where signatures 9 are recorded. The envelopes that we had in 1997 10 actually had a lot of this information on the front of 11 them and they had places for signatures on them as well. 12 So often the signatures in relation to an identification 13 were recorded on the envelope. 14 Q. We will look at the envelope in a second but if I can 15 complete this particular sheet and then come back to the 16 envelope. I will look at the envelope. Could you look, 17 please, at the next sheet of this particular document. 18 We have here a continuation of the sheet just to 19 make sure, in fact, the sheet does not record the 20 details of the individuals who were involved in the 21 original identification. 22 Can you just check through and make sure that is 23 indeed the case. 24 A. I can't see any note of the individuals involved. 25 Q. Again, that causes you no surprise? page 35 1 A. Not at that time, no. 2 Q. The next item I wanted to look at on this particular 3 sheet is, if we look down to 27th January 1997, it 4 refers to "duplicate copies of FP ...", is it "FP"? 5 A. Fingerprint, yes. 6 Q. "... [Fingerprint] form David Asbury received. 7 Descriptive form faxed up. David Asbury identified on 8 imps ..." is it? 9 A. "Imps", short for impression. 10 Q. "... WB", it would be a fingerprint impression, would 11 it? 12 A. Yes, it would be. 13 Q. "... message left at incident room with a Constable 14 Blane." 15 A. That's correct. 16 Q. Again, if we take it some form has been looked at on 17 27th January 1997 and we were looking at this record 18 there would be no means of knowing whether you were 19 involved at that stage? 20 A. No. 21 Q. If you don't know the answer just indicate. Could you 22 indicate why a duplicate copy of a fingerprint form 23 would be studied at all? 24 A. No, I wouldn't be able to comment on that. 25 Q. Again, if you look in, perhaps it's in the other, the page 36 1 green envelope, if we bring up please on the screen 2 SG0351 you will find in the envelope in front of you a 3 set of fingerprint forms. If you look through them you 4 will find one -- first of all, one of them has something 5 marked on it that there's something wrong with the form, 6 I think, is the writing at the top. The second one has 7 a rather obscure date and then the third one is a very 8 clear date of 26th January 1997. 9 Do you have one with a very clear date, 26th 10 January 1997? What I'm looking for is the one that 11 corresponds to one on the screen. 12 A. Yes. 13 Q. Do you have that? 14 A. Yes. 15 Q. The reason I'm wanting to look at that is I want a 16 demonstration of how a comparator screen works so I need 17 to find a form. So what we'll use is the one that 18 corresponds to what's on the screen just now. First of 19 all, it appears to be dated 26th January 1997. 20 A. 26th, yes. 21 Q. What you actually have in your hand just now, does that 22 appear to be a photocopy? 23 A. Well, there's no back to it so ... no, it doesn't have a 24 very high quality photocopy but it's difficult to say 25 actually. page 37 1 Q. But whatever it is, because it bears the date 2 26th January 1997 and you were studying something on the 3 21st, we can be sure you did not compare XF -- 4 A. That's correct. 5 Q. -- image against that print form? 6 A. X12? 7 Q. XF. 8 A. XF -- aye, yes. Sorry, that's correct, yes. 9 Q. With that imperfection, what I would like to do is 10 therefore simply to ask you to demonstrate to us how a 11 comparator machine operates. What we will use -- and 12 this is the reason for bringing the envelopes through -- 13 if you could use the original XF (that's the one with 14 the writing on it, that's correct) and the form which 15 we've just looked withe the 26th January 1997, if that's 16 the one that's on the screen what we may have to do is 17 turn the comparator machine round so it's facing people 18 and we may have to adjust to see if we can find a way 19 for people to view it. I don't know if there's anyone 20 here to take a photograph. Yes, there's someone here to 21 take a photograph. 22 If you want to turn the machine round and just set 23 it up ... 24 A. Facing? 25 Q. I'm not sure how this is going to operate best. page 38 1 THE CHAIRMAN: Maybe a little further round, now nobody can 2 see it. 3 MR MOYNIHAN: If we set it up first, sir, it might be a 4 question of people -- 5 THE CHAIRMAN: I think if we all move to positions so we can 6 see. 7 MR MOYNIHAN: Just set it up as you would normally, please. 8 A. The scene of crime mark on the left-hand side, raise the 9 arm and place it on trying to capture the relevant area 10 in the small screen in the top here. 11 THE CHAIRMAN: I wonder if we could move your 12 microphone ... if you would just like to say that again. 13 A. What we do is we take the scene of crime impression, we 14 place it on the left-hand side of the comparator, we 15 place the square that you might not be able to see on 16 the top here is the relevant area that will be blown up. 17 You look for the relevant area on the impression and 18 place it face down. You lower the arm down and that's 19 designed to keep it in place. 20 You then take the equivalent area on the fingerprint 21 form and you place that ... 22 MR MOYNIHAN: Mr Padden, I will help. I'm not going to ask 23 you to make a comparison but the area we are looking at 24 is the forefinger and by coincidence I'm not aware of 25 the identification of this print being disputed, hence page 39 1 why we are not worried about the detailed comparison. 2 If you could put it on the right forefinger that 3 will demonstrate for us how it works. 4 A. So I would be sitting or the examiner would be sitting 5 in front. This is an older machine so you switch it on 6 from down the bottom and the buttons we have here 7 increase the intensity of the light and we can change 8 that. 9 THE CHAIRMAN: It may be better for us to come and stand 10 round it. 11 A. So ... (Photograph taken) 12 MR MOYNIHAN: We should be giving you a felt pen ... 13 A. It's just to demonstrate anyway so it's fine. You would 14 be sitting in front of the comparator. You would start 15 off by -- what you're trying to do is find a 16 characteristic in common on both and you would mark that 17 accordingly. Then what you then would do is mark on the 18 relevant information that's there, which is the 19 characteristics themselves, and you're on this side 20 doing the equivalent. 21 What you're doing all the time is looking to see 22 that the characteristics and the sequence you agree with 23 and there's nothing you disagree with. You always look 24 to see if there's something suggesting it's not the same 25 person. So what you do is look at all the information page 40 1 that's there, you mark all the information that's there 2 and you make sure that information is replicated on the 3 other side, on the known impression. If there's enough 4 information there, you can then make a decision as to 5 whether or not the two are identical. 6 Q. And when you are putting the mark on -- let's say on the 7 XF image from the crime scene, do you put lines through 8 it or do you simply -- 9 A. It's a simple dot on the characteristics. The ridges 10 themselves are not continuous. They form bifurcations 11 and they form ridge endings and the sequence which they 12 occur is what makes the fingerprints unique. So you're 13 looking for that unique detail to be replicated on both 14 sides. 15 Q. So you are simply marking a dot on a characteristic you 16 thought significant and then you would check it's 17 present on the other one? 18 A. Not necessarily significant -- any characteristic that's 19 there. That's the evidence you've got. So it has to 20 be -- the equivalent characteristic has to be on the 21 other side as well, on the known. So we talk about an 22 unknown and a known. We know where this came from; we 23 don't know where this came from, and we're trying to 24 establish who made that impression. 25 Q. You're working on the comparator screen looking for page 41 1 minutiae characteristics which -- 2 A. It's minutiae we're talking about. 3 Q. Which of the two do you begin with in looking for 4 minutiae to compare? 5 A. It's always the scene of crime mark we concentrate first 6 because we know this impression. We don't want to be 7 influenced in any shape or form by this form. So that's 8 why, looking at a comparator first is not always ideal. 9 You want to look at this impression in isolation and 10 look and discover all the characteristics that are 11 there. Once you've done that and only once you've done 12 that do you think about moving on to the known 13 impression. 14 Q. But if you are doing it on a comparator, particularly if 15 you are the fourth checker, in which order would you be 16 looked at the matter? 17 A. Always the same. It's always the scene of crime 18 impression first. But I would emphasise it doesn't mean 19 to say that -- because your signature's on the 20 comparator, it doesn't mean to say you have only looked 21 at it on the comparator. You can do it for very clear 22 marks when there's absolutely no issue and there's 23 plenty of information you can do it only on a comparator 24 but normal practice would be to remove the mark and 25 carry out a proper examination using glasses. Then we page 42 1 would come back and put a signature to it at a central 2 point to record who has examined the particular 3 impression. 4 Q. Was there a practice to put a signature on one screen or 5 the other? 6 A. My memory it was the top right-hand side. 7 Q. So it would be on the top right-hand side of the screen 8 for the known? 9 A. Yes, and it was the first -- it would be the first 10 examiner at the top and as it comes down. 11 Q. When you were mentioning the blind test, you mentioned 12 that when you arrived to effect a comparison there were 13 markings on the screen? 14 A. That's correct, yes. 15 Q. One possibility was that the machine may have been 16 jolted. 17 A. These arms are very, very fragile, very sensitive. They 18 really move very, very simply. The fact of getting up 19 or sitting down can move the table and that's moved, it 20 knocks the impression slightly to the left or right and 21 therefore they are no longer set on the characteristics 22 that have been marked. So it's always why you would 23 clear the screen before you carry out the examination. 24 Q. We'll just go back to our seats and I'll ask you some 25 more questions. page 43 1 I will come back and ask you about the comparator 2 and the exercise later. If we could just continue, 3 please, by looking at some of the paperwork and ask you 4 to comment. 5 The next document I would ask you to look at is 6 SG0467, something called the Serious and Noteworthy 7 Crimes Bulletin. Perhaps we could move to page 3 of 8 that. 9 Do you recognise this type of document? 10 A. Yes, I do. 11 Q. What is that? What is it? 12 A. When we get an identification in relation to a 13 particularly serious crime we generate one of these 14 forms and it goes to -- there's a mailing list of people 15 that goes to. 16 Q. Again, this relates to the impression XF and it gives 17 some narrative but we again see that absent from this is 18 any detail of who viewed it and what opinion they 19 formed. 20 A. No, that's information is never recorded in this type of 21 form. 22 Q. The next document I am looking at is DB0003. The 23 description here is a "Mark worksheet BY31". 24 By coincidence you are the first person I can ask 25 about this. The abbreviation BY31: does that have any page 44 1 significance for you or is this coincidental, perhaps 2 put on by someone else? 3 A. I don't know what that means. 4 Q. You don't know what that means. That's fine. So it may 5 be it was related to a later police investigation. 6 So the mark worksheet, if I could ask that you look 7 please at page 14. This is a sheet that relates to, 8 among other marks, XF? 9 A. Yes, it does. 10 Q. Can you explain to us what the purpose of this 11 particular sheet would be? 12 A. We would receive this type of form from what was then 13 the Identification Bureau and it details the impressions 14 that we were receiving in the office in relation to a 15 particular case. So the writing you've got on where 16 they find an article tends to be filled in by the 17 identification officer -- the Scene of Crime Officer, 18 sorry. You will then have the mark that it refers to, 19 the date we receive the case, which is the date received 20 to SCRO, and the result part is the disposition of what 21 has happened to that particular impression after our 22 examination. 23 Q. So the dates that are there, which are 13th January, 24 would be the dates that it is received into your office? 25 A. That's correct. page 45 1 Q. And we know the forms we've seen so far suggest the 2 identification was, in fact, carried out on 21st 3 January? 4 A. That's correct, yes. 5 Q. Can you explain what is written against XF. It says 6 "number 2"? 7 A. Well, it says "number 2,". There's been one entry and 8 it's been superseded by another one. So if I read the 9 first entry, it says number 2 eliminated is David Asbury 10 and in brackets "(elim suspect)". That has then been 11 changed to "identified against ..." and the reference 12 number that you see there is the URN (unique reference 13 number) in relation to that individual. 14 Q. Number 2, that description, does that correspond to a 15 digit? 16 A. Sorry, that's the right forefinger fingerprint. 17 Q. So, as I understand it, it's a right forefinger that's 18 been identified? 19 A. That's correct, yes. 20 Q. Can you explain the significance in the black originally 21 then superseded by the red? 22 A. All I would say is that I would imagine that the 23 individual was originally quoted as elimination in 24 relation to the inquiry and that status has then changed 25 to a suspect. page 46 1 Q. If I tell you that as at 21st January Mr Asbury was 2 simply one of a number of people involved in the 3 building work in the house whose prints still had to be 4 eliminated, he was not then a suspect in relation to the 5 crime, he did though become a suspect and was detained 6 and, indeed, arrested. 7 Would that be consistent with the double marking 8 here? 9 A. Yes, it would. 10 Q. We will come back and look at that later when we come 11 back to the photograph, but again this particular form 12 records no detail of the officers involved in the 13 identification? 14 A. No, it doesn't. 15 Q. Is that, again, normal practice? 16 A. In 1997, yes. 17 Q. Again, just looking at this document, would you be able 18 to tell me whether that change in writing from him 19 originally being eliminated as a person with a known 20 legitimate reason to be on the premises to a suspect 21 results from a separate comparison of forms or just from 22 the original comparison? 23 A. I would suggest -- and it would only be a suggestion -- 24 it's nothing to do with that, it would be from 25 information received. page 47 1 Q. So it doesn't necessarily indicate a second comparison? 2 A. No. 3 Q. Can we proceed through then to the next document which 4 is CO1444. 5 Again, this is an elimination page numbered 2 and if 6 we proceed through it -- if we could go back, please? 7 We're looking at page 5 of the document. 8 First of all, do you recognise this style of 9 document? 10 A. Yes. This was the form that was used to record 11 eliminations compared in a case at this period in time. 12 Q. For reasons of protecting privacy of others who were 13 involved in this particular matter rather a lot of the 14 detail has been blanked out but we leave one name, that 15 of David Asbury, highlighted. 16 Would this be the form that would be completed for 17 all the individuals who were at the time thought to have 18 some involvement with the house whose fingerprints 19 therefore might be legitimately at the house and had to 20 be eliminated? 21 A. That's correct. 22 Q. If we look at the column for marks A4 to C6, do we see 23 that there's a lot of detail completed against each of 24 the individuals for comparison marks? 25 A. That's correct, yes. page 48 1 Q. Can you explain to me how that -- I'm just using it 2 because the one I'm interested in for XF is XD to XY, so 3 the third column and it's simply scored out. It's 4 scored out on this particular document but what I want 5 you to do is simply explain to me how would someone like 6 yourself carrying out an elimination complete this form? 7 If we use the column A4 to C6 because it happens to be 8 completed to show the process. 9 A. As I mentioned earlier on we received impressions in 10 different batches depending on those examinations, when 11 those examinations took place from the Identification 12 Bureau. So they would come in in a particular range. 13 The marks that we've got at the top here is the 14 particular range. So in relation to the first column 15 there it's marks A4 to C6 and every impression between 16 A4 and C6 will be compared. 17 On the left-hand side you would have the names of 18 elimination forms of the suspects -- sorry, the 19 elimination forms that have to be compared against that 20 range. Once that's been done you would sign your 21 initial and you would date when you carried out that 22 examination. In all special cases everything is 23 second-checked so that's why you have an initial 24 signature and a subsequent signature. 25 Q. So the two columns at the top, again using the batch A4 page 49 1 to C6 as the example, you would have written at the top 2 is it "comp"? 3 A. Compared. 4 Q. And then the date. 5 A. The date. 6 Q. So those would be initials of an officer who has 7 compared that mark against a known individual? 8 A. Correct. 9 Q. And he initials it with the date of his comparison? 10 A. Correct. 11 Q. And then there's a second checker who also initials and 12 dates? 13 A. That's right, yes. 14 Q. In the case of XF we see from the photograph that there 15 were four individuals, you were the fourth of four 16 people. 17 Is there any significance in the fact that the 18 standard form assumes two checkers, whereas what 19 actually happened here, it would seem, is that four 20 individuals checked? 21 A. Well, they are slightly separate areas you're talking 22 about. This is -- all outstanding impressions are 23 double-checked. Identifications have a different 24 criteria. With suspects they get at that time four 25 checks. I believe in this case eliminations were also page 50 1 getting four checks. 2 Q. That is what I want to ask you about. Do you know why 3 in this case eliminations were getting four checks? 4 A. No, I don't. 5 Q. But you understand that they were getting four checks? 6 A. I believe so only because I know four people signed 7 articles. 8 MR MOYNIHAN: Sir, that might be as convenient a point to 9 stop. There are more questions in relation to this 10 but it leads on to another topic. 11 THE CHAIRMAN: We will rise now until 11.50 but if there is 12 anyone sitting in the public benches who has not had an 13 opportunity to see the comparator, they can have an 14 opportunity to do that during the break. So 11.50. 15 (11.30 am) 16 (A short break) 17 (11 .50 am) 18 MR MOYNIHAN: If we could return to the document which was 19 on the screen CO1444. We were talking -- 20 THE CHAIRMAN: Is the microphone on? 21 MR MOYNIHAN: Thank you, sir. 22 I am just going to return to the elimination form, 23 CO1444. For completeness we'll come back to this for 24 conversation shortly, if I can give you the 25 corresponding sheet for suspects which is CO1446, we see page 51 1 it's been marked up by the Mackay Inquiry as elimination 2 suspect pages and there are three in number. It should, 3 in fact, now blanked out in all probability. 4 If you flick through the sheets and stop there for 5 comparison purposes, we see a number of names would have 6 been on the sheet and it is specifically marked 7 "suspects"? 8 A. That's correct, yes. 9 Q. So can I take it you did have a separate form for 10 suspects as opposed to ordinary eliminations? 11 A. Yes, there was. 12 Q. Again, do we see similar columns with marks for an 13 original comparator and a second checker? 14 A. That's correct, yes. 15 Q. Can you tell me why in relation to the suspects there 16 would not be four columns for four checks? 17 A. This is in relation to all marks being checked. It 18 includes marks that have been compared negative against 19 any one of those suspects, which only requires two 20 checks. 21 Q. What if one is a suspect and, indeed, is identified by 22 reference to one of the prints, what would happen then? 23 A. That would be recorded on the case envelope. 24 Q. We will come to the case envelope shortly. 25 Now, we have used so far and we will come back in a page 52 1 moment to Mr Asbury, the other form, we have used so far 2 A4 to A6 column. 3 Now if we look at the one that corresponds XF would 4 that be the batch XD to XY, the third column? 5 A. Yes, I believe so. 6 Q. In fact, in relation to this particular page, it would 7 appear that that batch has only been compared against 8 two individuals and then it's otherwise marked with a 9 very significant cross. 10 Can you explain what the cross would indicate? 11 A. I would suggest there's a couple of reasons for that, 12 possible scenarios. One is that there could have been 13 instruction from the officer not to compare specific 14 marks at that time. What's also possible is that every 15 impression in that range has been accounted for. 16 Q. In other words all the impressions in that batch -- you 17 used the word "range"; I'm using the word "batch" -- is 18 that a similar term? 19 A. Yes, it is. 20 Q. -- has been accounted for and therefore it's unnecessary 21 to proceed further down the list? 22 A. There's nothing left to check. 23 Q. So if -- and this is just a convenient way of looking at 24 it -- an officer looking at an impression attains a 25 match -- and I'll use the word match as generic because page 53 1 I to come later to ask about eliminations and 2 identifications -- if he has obtained a match does he 3 simply stop at that point and not go on and consider the 4 possibility that there might be two individuals with a 5 similar range of minutiae? 6 A. On one impression? 7 Q. Yes. 8 A. No, because the point is that you would have to convince 9 yourself without any doubt that the impression you're 10 looking at belongs to that individual; so, therefore, 11 it's that individual, end of. 12 Q. Then you would stop. 13 If we could look back then to the elimination page 14 CO1444, and we look at the column that corresponds to 15 XF, namely the column XD to XY, we again see that 16 there's a cross through the entirety of that column even 17 including the name David Asbury. 18 Can you explain why that might be the case when we 19 know from the photograph of one of the impressions in 20 that batch has been identified in relation to Mr Asbury? 21 A. This doesn't show what has happened in disposition of 22 any of those impressions. All it shows is if there's 23 anything outstanding to be compared. So the same 24 principle would apply that there's nothing to compare if 25 that's indeed the reason why it's been crossed out. page 54 1 Q. What I'm interested in is in relation to the line 2 corresponding to Mr Asbury. We know four individuals, 3 yourself included, have compared his known print against 4 the impression XF. 5 Why is there no initials on that sheet relating to 6 the first two people who actually carried out that 7 comparison? 8 A. I'm not sure. 9 Q. Ought there to be? 10 A. It's difficult to say because it all depends on the 11 time-frames when particular individuals were checked. 12 It could be that that batch, the majority of impressions 13 in that case could have been insufficient for comparison 14 and perhaps there was only one left and that one has 15 been identified against David Asbury. That could have 16 happened right at the start. So, therefore, that -- 17 hence the cross but, to be honest, as I wasn't 18 specifically working on that case, I couldn't really 19 comment as to why that happened. 20 Q. The final document that you have been mentioning is the 21 case envelope and if I could ask that we bring up 22 DB0529. 23 Do you recognise that as a case envelope? 24 A. Yes, it is. 25 Q. I think in the original it is white? page 55 1 A. Special cases were white. Volume cases (which are 2 house break-ins, car crimes) are brown. 3 Q. Is it simply an envelope not, in fact, dissimilar in 4 size to what we see on the screen? 5 A. It's round about that size, yes. 6 Q. In relation to this particular instance, do you 7 recognise this at least by references as the white case 8 envelope that would correspond to the case of Mr Asbury? 9 A. Yes, it is. 10 Q. If I look, we see that coming down really from the top, 11 the locus is 43 Irvine Road, Kilmarnock, and a date of 12 10th January 1997. 13 A. That's correct, yes. 14 Q. What would the date 10th January 1997 correspond to? 15 A. That would be the date the initial impressions were 16 received in relation to the case. 17 Q. Then the next line has "manual/2H" then "(i)" written in 18 manuscript "suspect", with a tick. 19 Can you explain that for me? 20 A. We achieve identification from a number of different 21 sources. The boxes there signify what source a 22 particular identification has been achieved, how it's 23 been achieved. The tick against the suspect shows that 24 there was a quoted suspect and that's an identification. 25 Q. And the next line has written in manuscript, I think page 56 1 it's "(ii), 11 ident" and a tick with next to that 2 box -- whether it's coincidental or not -- "HW". 3 Again, can you interpret that for me, please? 4 A. I believe "HW" is handwriting but I could be wrong about 5 that. It's not something -- in fact, the whole envelope 6 is very much different today but "elim ident" is 7 elimination ident. What we'd occasionally get is 8 individuals to compare that were somewhat between the 9 two camps, if you like, of elimination and a suspect. 10 So we may have received a form in relation to the 11 individual as an elimination form but subsequent 12 information suggested that it perhaps is to be treated 13 as a suspect. 14 Q. So we have perhaps -- can I summarise it like this -- we 15 have one genuine suspect ticked? 16 A. Correct. 17 Q. And then one that's, in some senses, a hybrid, perhaps 18 an elimination, perhaps an identification? 19 A. That's correct. 20 Q. Do we then see the detail of that in the table below, 21 number 1, the suspect, the name of Mr Asbury, a 22 reference, and then the prints or the impressions that 23 have been identified as corresponding to him? 24 A. That's correct, yes. 25 Q. The one that we have been discussing for most of this page 57 1 morning is XF. 2 A. Yes, that's correct. 3 Q. And then what follows with (ii), is that the digit? 4 A. That's the right forefinger print again. 5 Q. We also have seen earlier a reference to the impression 6 WB and is that in the marks identified column? 7 A. Yes, that's the impression immediately after XF. 8 Q. And digit number 6? 9 A. Is the left thumb. 10 Q. Then in relation to (ii), the hybrid, do we see that 11 there is, in fact, an entry corresponding to that for 12 Marion Ross? 13 A. Yes, there is. 14 Q. You will be aware that she was the deceased? 15 A. Yes, I am. 16 Q. Then under the unique reference number there is written 17 "elim.ident". Can you explain that? 18 A. In relation to this series, no, I can't. 19 Q. If I suggest to you this and just put this for your 20 comment: plainly Miss Ross as the deceased would be 21 someone who would be normally eliminated? 22 A. Yes, that's correct. 23 Q. If a print were thought to have been found on an item in 24 the accused's possession (so, in other words, not in her 25 own house) might that be a situation in which it would page 58 1 come to an identification rather than an elimination or 2 do you not know? 3 A. I don't know. 4 Q. I will leave it there. 5 Beneath the first table we see "ident by", and we 6 are not greatly assisted by the tear in the old 7 sellotape. That would seem to be Mr Macpherson's 8 signature? 9 A. That's correct, yes. 10 Q. And a date, 14th March 1997? 11 A. Yes. 12 Q. Would that be the date on which this envelope's been 13 completed? 14 A. Yes, I believe it would be. 15 Q. Did you understand or at least have you since learned 16 that Mr Macpherson was the Lead Fingerprint Officer for 17 this case? 18 A. Yes, that's consistent. 19 Q. Beneath his signature there is written "comparator by" 20 and it says "see photographs". Can you explain that? 21 A. What that refers to will be any impressions that were 22 put on the comparator, the signatures of the individuals 23 who carried out those comparisons would have been 24 recorded on the photographs and that is referencing 25 those impressions. page 59 1 Q. So for any photograph that was put on the comparator 2 there would be a note on the back of the photograph to 3 say who had checked it using the comparator? 4 A. That's correct. 5 Q. Then we have next on that same line written "MK for 6 court", is that correct, it's a bit obscured by the -- 7 A. Sorry, which line are we talking about? 8 Q. In the second line immediately after "see photographs", 9 there's "MK". 10 A. That's "marks for court". 11 Q. Is this the preparation of the enlargements? 12 A. Yes, it is. It would be the one that had been deemed to 13 be enlarged. 14 Q. So of the total list that had been identified for 15 Mr Asbury as the accused a decision has been taken to 16 enlarge XF? 17 A. That's correct. 18 Q. As far as the deceased is concerned, a decision has been 19 taken to make an enlargement of QI2 or part of it? 20 A. Yes, it is but I would say that that's not absolutely 21 hard and fast. It could be that when it actually comes 22 to the enlargement, the officers who got it for court 23 may decide that there's another impression they want to 24 enlarge. 25 Q. So this is at least an initial thought that these two page 60 1 marks might be enlarged but it may be that others turn 2 out to be enlarged? 3 A. Quite possibly. 4 Q. A reason for spending so much time on this is you were 5 mentioning that the case envelope might come to be 6 signed by another officers and we see on the next line 7 "checked by". 8 If I understand it correctly, that's Charles 9 Stuart's, the first signature? 10 A. Yes, it is. 11 Q. Alister Geddes? 12 A. Yes, it is. 13 Q. Anthony McKenna? 14 A. Yes, it is. 15 Q. And beneath "checked", I think Ms McBride? Maybe you 16 don't know the initials? 17 A. It's quite difficult to read that one. 18 Q. That's fine. We have other evidence to suggest that it 19 is Ms McBride. 20 The fact is we don't see on that your signature? 21 A. No, I don't. 22 Q. Can you explain why it would be that your signature 23 doesn't feature on the case envelope even though you 24 were one of the original four who identified XF? 25 A. It's probably because that impression has been page 61 1 referenced. Where it says "see photographs" my 2 signature has been recorded there. The people that tend 3 to sign the envelope would tend to be the ones that were 4 going to go to court with it. I was somebody who was 5 drafted in for one particular impression. So it 6 wouldn't have been myself that would have been going to 7 court and preparing the evidence; whereas, it's the 8 people who have signed it are more likely to. 9 Q. That then leads to the consequential question: if we 10 take just as a sequence that we know XF had been 11 identified on 21st January, we know some other marks 12 were being identified later, when in the process would 13 the case envelope be completed? 14 A. It's actually quite difficult for me to remember how 15 that would happen because it does seem -- well, it's 16 quite difficult to ascertain. I would guess it's 17 certainly towards the end of the case because it does 18 change, as I mentioned we had a number or we would have 19 a number of impressions being received all the time and 20 that would change in regards to the number of 21 impressions that have been identified against any one 22 individual. 23 Q. So practice varied too much that you couldn't really -- 24 A. It's quite difficult for me to remember how exactly that 25 worked. page 62 1 Q. What I want to do then is go back to a point that I'd 2 left over. 3 If we could bring up please, again CO1987. That is 4 the photograph of XF. 5 If it assists use the original, if it assists you. 6 A. It's here somewhere ... it's not actually the original. 7 Q. Oh, sorry. It's been drawn to my attention it's still 8 on the comparator. That's my mistake. I think this 9 explains why we use computers rather than bits of paper. 10 A. Do you want me to retrieve it? 11 Q. Yes, please. 12 We can work from the computer but since we have the 13 original it may assist you so you are confident in what 14 you are saying by reference to the original. 15 What I want to ask you about is at the centre at the 16 foot of the photograph there is something corresponding 17 to what we saw on one of the forms: black writing was 18 superimposed red. 19 A. Yes. 20 Q. If we could just talk about that. If I understand it 21 Mr Asbury, as I said to you, as we see in the forms, 22 started out as someone to be eliminated as a workman who 23 had a legitimate reason to be there then came later to 24 be a suspect. That would correspond to the difference 25 in writing? page 63 1 A. Yes, it would. 2 Q. It happens that the entry that relates to you (that's 3 the screen with the four initials) is simply written in 4 black. Would that be consistent with you having been a 5 person who viewed it at a time when he was simply an 6 elimination? 7 A. No, not to my recollection. I don't remember. We 8 probably marked things red for identifications and 9 things black. It was just a means to record who had 10 examined the impression. 11 Q. I suppose this is a more direct question I want to ask 12 you about: I understand there to be a difference between 13 an elimination on the one hand and an identification for 14 court purposes on the other. 15 Am I correct in that understanding? 16 A. At that period in 1997 we did have a difference in the 17 way that impressions were identified. We required 18 16 points in sequence and agreement to be presented for 19 court for a suspect. For a mark to be eliminated, it 20 was 12 characteristics to be present to allow the mark 21 to be eliminated. 22 Q. I am very grateful to you because I think there is one 23 point I should clarify: I am going to ask all of my 24 questions of you in relation to 1997, practice then. I 25 will come at the end to ask you if anything significant page 64 1 has changed. So it is implicit in all I say I am asking 2 you about 1997. 3 Your recollection is a threshold of 12 was used for 4 an elimination? 5 A. At least 12 characteristics, yes. 6 Q. We have had some other contributions in written 7 statements to suggest perhaps a lower threshold for 8 elimination of ten maybe even as low as eight? 9 A. My recollection is 12 was the recommended number. 10 Q. Let us assume your number is the correct on, that is 12. 11 Assume that you have seen in an image, a known and an 12 unknown, 12 common points, there would have to be no 13 points of unexplained difference as well? 14 A. That's correct. 15 Q. If you have observed 12 points in common, therefore 16 a match, with what degree of certainty would your 17 opinion be that those are unique to the one known 18 individual? 19 A. I know you mentioned you are talking about 1997 but it's 20 quite difficult without referencing current practice. 21 At the time in '97 we had a numeric standard and it 22 meant we had to work to numbers. That has been removed 23 now, so what we have now is the correct way where we 24 have -- you look at the information present in a print 25 and you either have enough information to allow you to page 65 1 make a decision as regards identity or not. 2 If you have got an impression that's got 12 3 characteristics but the characteristics are extremely 4 clear, there's great ridge detail, there's absolutely no 5 issue with that at all; it's an identification. You can 6 do it on a lot less but we had to stick to these 7 arbitrary figures at that point. An identification that 8 had 12 characteristics in common in sequence and 9 agreement and one that had 16, they're not better 10 identifications. They are both identifications. 11 Q. I am sorry, perhaps I should be more straightforward 12 with the question: there might be, in some disciplines, 13 the possibility that someone would say, "Well, I think 14 that these two propositions are correct", that's one 15 range; "It's probable that these two propositions are 16 correct", is middle range; then the top of the range is 17 absolutely certainty 100 per cent. 18 When you were making an identification in 1997 where 19 did you believe your opinion to be on that range if you 20 made an identification? 21 A. It's the same as it is now. Three possible outcomes and 22 that's it. It's either identification, it's not an 23 identification or there's insufficient detail to allow 24 you to make a decision. It has to be one of those 25 three. page 66 1 Q. But when you are saying it's an identification, are you 2 saying that in your opinion that it's 100 per cent 3 certain? 4 A. Correct. 5 Q. Again, if you're not comfortable in your recollection of 6 practice in 1997 just say. We have at the moment two 7 possible numbers: 12 for an elimination and 16, for 8 court purposes, an identification. All other things 9 being equal, if you saw 12 points in a mark on a known 10 print would you be able to say 100 per cent that that is 11 unique identification, even at 12? 12 A. Yes. 13 Q. Therefore, going to the standard of 16, why was it 14 required to go to the standard of are 6? 15 A. 16 was a figure that, basically, was decided in 1953. 16 It was an arbitrary figure. As far as I and most other 17 fingerprint experts are concerned it was a figure that 18 really stopped you doing your job the best way you 19 could. 20 We don't really like to work to numbers in that 21 regard. You have to go by the volume of evidence, the 22 volume of information that's contained within the print. 23 That's it. If it contains enough information to allow 24 you to make a decision you make that decision. If it 25 doesn't then the marks are fragmentary and insufficient page 67 1 for comparison then you don't offer an opinion on it. 2 Q. We will come, as I said to you, to current practice a 3 little bit later. 4 Again, I don't want to press you beyond your memory, 5 but looking at what we see in the photograph if I add in 6 the piece of information that at the time on 21st 7 January when you may have viewed this Mr Asbury was 8 simply one of a pool of people to be eliminated, is 9 there anything that either on this photograph or in your 10 recollection that would tell me to which of the two 11 standards you were working, whether it was 12 as an 12 elimination minimum threshold or 16 a court 13 identification? 14 A. No. However, I would say that it doesn't really matter 15 because I've looked at that, I've examined the evidence 16 contained within the print and I've come to a 17 conclusion. 18 Q. Forgive me please because that's what I was trying to 19 stress. So far as you personally are concerned at a 20 minimum of 12 points that are common with no unexplained 21 differences you are satisfied 100 per cent as to a 22 unique identification? 23 A. Correct. 24 Q. Therefore, that the court standard of 16 was, in a 25 sense, an added safeguard, a belt and braces exercise? page 68 1 A. Yes, it was. 2 Q. Would that be true or would there be any difference in 3 moving from Mr Asbury as an elimination then 4 transferring to Mr Asbury as a suspect? 5 A. Well, as I mentioned, for court purposes you required 6 16. However, in certain cases we had what was called a 7 "dire and crucial" and that meant that evidence could be 8 presented in courts with less than 16 characteristics. 9 Q. If I understand dire and crucial -- let us, again use 10 your number 12 -- but you would be satisfied at 12. If 11 the prosecution regarded the mark as dire and crucial 12 they might accept an identification to a lower standard 13 ie 12 not 16 points? 14 A. One of the problems we have is when people talk about 15 lower standards, that's what we're trying to get away 16 from. It's not a lower standard. It is an 17 identification it just happens not to have 16 18 characteristics on it. 19 Q. I will try and find a more neutral phrase. Perhaps if I 20 refer to it simply as the 16-point standard and your own 21 officers' practice, fingerprint practice, if you had 22 worked to the fingerprint practice and had not satisfied 23 the 16 points, you would at least have to tell the 24 prosecution that you had not achieved the 16 points. 25 A. Not every case. On these -- it only would be in page 69 1 reference to the more serious crimes. It was only 2 relevant to more serious crimes. 3 Q. What I want to look at is a case where the proposal is 4 to use 12 points because only 12 points can be seen but 5 the prosecution view this as a dire and crucial 6 identification. So the prosecution's already envisaging 7 departing from the full legal standard of 16, you would 8 require to explain to the prosecution that you could 9 only find 12 points? 10 A. My recollection is that it would be brought forward to 11 the head of unit at the time, the head of the bureau, 12 and he would make the decision as to whether or not that 13 was going to be progressed judging by the circumstances. 14 If we got the approval, then it would then be put 15 forward as an identification with the caveat that it's 16 not reaching the full court standard. 17 Q. Okay. 18 As you say, the caveat that it's not reaching the 19 full court standard would need to be explained by the 20 Head of Bureau in turn to the prosecution? 21 A. No, it would be explained by the officers that were 22 taking the case to court. 23 Q. But would nonetheless require to be explained and 24 someone would require to be persuaded to depart from the 25 legal standard of 16? page 70 1 A. The head of the department is my understanding. I can 2 stand corrected on that but I believe that was the ... 3 Q. I'm sorry, this is taking me rather a long time to get 4 to the point. 5 If you were viewing Mr Asbury on 21st January as 6 simply an elimination, it may be that you yourself saw 7 only 12 points that would be sufficient for your 8 purposes? 9 A. Possibly, yes. 10 Q. However, other things being equal, and there's no 11 suggestion here of a conversation having taken place 12 that this required to be a dire and crucial elimination, 13 if someone is speaking to the police and to the 14 Procurator Fiscal Service of the suspect as having been 15 identified, it must be that the fingerprint officers 16 have worked to the full legal standard of 16 points? 17 A. Not if the head of the department has already given 18 approval for it to be progressed as a dire and crucial. 19 Q. Sorry, if I take that out, that I've not heard any 20 suggestion in this case that this print was viewed as 21 dire and crucial. So XF is looked at as simply in the 22 ordinary stream of identifications, as I would 23 understand it, to the legal standard of 16 points. Do 24 you understand? 25 A. Sorry, could you say that one again? page 71 1 Q. I am not aware of any conversation relating to XF that 2 it be regarded as a dire and crucial fingerprint to be 3 put forward for court purposes to anything other than 4 the court standard? 5 A. Right, understand, yes. 6 Q. So therefore it has been put forward as one on which 7 officers are prepared to identify and have been able to 8 identify 16 points? 9 A. That's correct, yes. 10 Q. But there's nothing on this photograph to indicate that 11 you yourself did view it in that light as something that 12 required to attain the court standard of 16 points, if I 13 factor in that Mr Asbury was at that time viewed as one 14 of the general population of eliminations? 15 A. Well, there's nothing to signify that, no. 16 Q. Do you have any recollection of having viewed that XF 17 was something that you would have to attain the legal 18 standard or not? 19 A. As I mentioned in my statement, it came as a surprise to 20 me that my name was on it: full stop. So I certainly I 21 don't have any recollection around that period. 22 Q. I'll not take your memory any further than that, 23 Mr Padden, thank you. 24 If I can turn to a different topic, you very 25 helpfully at the beginning of paragraph 9 of your page 72 1 statement told us of working practices at the time. I 2 want to pick up just some of those comments from you 3 and, again, I'm still in the mode that says we're 4 talking about 1997. 5 In paragraph 9, one of the first things that you 6 highlight, and we have seen it on the paperwork, that 7 there was no running note taken of characteristics found 8 by individual officers. Is that the case? 9 A. I've actually read that back and it's not what I meant. 10 What I explained to the person taking the precognition 11 is it was actually in relation to the individuals 12 recording the identifications that they made, ie checker 13 1 going to the diary page and writing their findings 14 followed by checker 2, checker 3. It's not a running 15 note of characteristics, it's a running note of those 16 individuals that have carried out the identification. 17 Q. Perhaps -- and please forgive me because I don't wish to 18 tie your hands by reference to the statement -- if there 19 are any inaccuracies, this is the opportunity to correct 20 them. 21 But whether again an individual, like yourself, has 22 seen 12 or somewhere between 12 and 16 points or more, 23 there would simply be no record. The practice at that 24 time was simply to keep no record of such a detail? 25 A. No. Well, perhaps an individual did do that. I page 73 1 wouldn't like to say it never happened, but I'm not 2 aware of that. 3 Q. And you didn't? 4 A. I didn't. 5 Q. The next item you mentioned is that a diary page tended 6 not to be used. What do you mean by the "diary page"? 7 Is that the sheet that we saw earlier -- 8 A. Yes, it is. 9 Q. -- that's simply the narrative? 10 A. It was used in special cases which is where this case, I 11 believe, would have been dealt with. But if you look at 12 it, if you actually went back to it -- I think you have 13 it up earlier on -- a lot of the entries aren't signed. 14 Q. If you give me just a second, then I will bring it up 15 for you to assist you. The diary page is DB0002.? 16 A. As I say, it's obviously with the benefit of hindsight 17 because we've got very tight quality assurance 18 procedures now, you would look back and say, "Well, 19 people haven't signed for the entries they've made". 20 That's just something that you'd think, well, perhaps 21 should have happened. 22 But I would say that good practice evolves and 23 that's all it was. It's just at that particular period 24 in time that wasn't done. 25 Q. As I say, I'll deal with separately the question of page 74 1 what's done today. I simply want to see what the 2 practices were at the time of the events that we are 3 primarily concerned with. 4 So the diary pages when you say weren't necessarily 5 completed, what you mean is that they weren't signed or 6 initialled. 7 A. They weren't there at all. 8 Q. We have also seen that the entry that corresponds to 9 21st January 1997 at the foot is, if I may put it this 10 way, very sparse. It simply is that the information was 11 phoned down to the police about the identification of 12 Mr Asbury. 13 A. Yes. But I would say that it does contain the relevant 14 information. 15 Q. I then move to a third point, and this is perhaps the 16 more important point. Again you've spoken about and you 17 have demonstrated for us the comparator machine. In 18 paragraph 3 of your statement, if you could look at 19 that, please, we've already covered the part that it's 20 your initial, you believe, and you're happy to accept 21 that. You were surprised to find your initial because 22 you have no recollection of involvement in this case and 23 then it's the next sentence, "On further 24 consideration... " Do you see that sentence? It's just 25 below halfway down paragraph 3 in the middle of the page 75 1 line: 2 "On further consideration ..." 3 A. Sorry, what number is it? 4 Q. Paragraph 3 of your statement. 5 THE CHAIRMAN: Page 2. 6 A. Yes, I can see that. 7 MR MOYNIHAN: Halfway down in the middle of the line: 8 "On further consideration ..." 9 If you want to read down to that point so you get 10 the context. 11 A. Yes. 12 Q. What you then say is: 13 "On further consideration I would deduce that it is 14 perhaps not that surprising as in the office at that 15 time it was not unusual for staff who were involved in a 16 case to examine an impression on a comparator purely 17 because they happened to be available to do so." 18 A. I think that should actually read "not involved". 19 Q. So it should read: 20 "... It was not unusual for staff who were not 21 involved in a case to examine an impression on a 22 comparator ..." 23 A. Yes, that's correct. 24 Q. That would be your position, if I understand it. You 25 were not primarily involved in the Marion Ross murder page 76 1 case? 2 A. No, not to my recollection. 3 Q. We already covered this but I just want this to be 4 quite, quite clear: it may be that someone who is 5 checking the marks, such as yourself, would view it only 6 on the comparator? 7 A. That's possible, yes. As I say, though, as I mentioned 8 earlier on, the comparator was used as a means to record 9 the staff that had seen that examination or carried out 10 that examination and come to the conclusion it was an 11 identification. It was a central place where those 12 signatures could be recorded. 13 Q. But the point is that someone such as yourself called in 14 to check an identification or an elimination -- a match, 15 if I use that generic term -- might in fact view it only 16 on a comparator if you thought it clear enough? 17 A. Yes. 18 Q. Then the other feature which is mentioned in particular 19 in paragraph 4 -- go to paragraph 9 of your statement -- 20 I'm sorry. We've already discussed the second sentence 21 which is: 22 "One example is that there tended not to be a 23 running note of characteristics taken when examining a 24 mark." 25 The next sentence you say: page 77 1 "Other examples included fingerprint officers 2 passing identifications to others to check -- which is 3 not good practice as it should be at random." 4 What do you mean by that? 5 A. Well, the way it worked in 1997 is you would perhaps 6 have, if I could use this as an example here, the 7 material I have in front of me, somebody would perhaps 8 pass you a fingerprint form and an impression and ask 9 you to check it. Again, I can only refer to current 10 practice because we just -- we wouldn't do that now. We 11 like to -- we put a covering sheet on it which gives a 12 certain amount of anonymity who the previous checker was 13 and people take cases at random. There's nothing 14 sinister about it but I think, from a QA point of view, 15 it's perhaps best not to hand somebody an identification 16 and ask them to check it. 17 Q. When you said -- we're taking only XF. All I'm 18 discussing today is XF I'm as the example -- and that's 19 what you had in your hand -- was the original photograph 20 and the ten-print form. 21 The practice in 1997 would be that Officer A would 22 pass to Officer B the image and the ten-print form and 23 ask him to confirm or check an identification or 24 confirm? 25 A. Check an identification. page 78 1 Q. Would Officer A (that's the first one who's done it and 2 is passing it to Officer B) go further and be more 3 specific and say (we know with David Asbury we're 4 talking about the right forefinger) would Officer A say 5 to Officer B, "Would you check the right forefinger 6 against this mark?" 7 A. Well, it tended -- as you can see from this impression, 8 it actually tends to have an arrow with the finger 9 number that it refers to on it. 10 Q. If I bring up on the screen again, sorry, CO1987. So on 11 the photograph what you are indicating is, again fairly 12 central at the foot of the photograph, a black arrow 13 number 2? 14 A. Correct. 15 Q. And we know the number 2 to correspond to the right 16 forefinger? 17 A. Yes, it does. 18 Q. So you would have expected the first person who has made 19 that match to have marked on it the arrow and the number 20 2? 21 A. Yes, they would. 22 Q. And that individual, the first one I'm choosing to call 23 A, passes to B that photograph with the ten-print form 24 and asks him to check and it would therefore be clear 25 that this second person has been asked to check -- page 79 1 A. The right forefinger -- 2 Q. -- the number 2 digit against the mark? 3 A. Yes, it is. 4 Q. Going on in your statement -- again, you're now talking 5 about the comparator -- going on in paragraph 9: 6 "We also would ask other officers to look at things 7 on comparators for their own opinion with the original 8 officer's marks and initials still on the screen." 9 A. Correct. I would emphasise that the instruction was 10 that all comparators were cleared of marked impressions 11 before the next person sat down. It's just occasionally 12 it wouldn't happen. 13 Q. So the proper practice in 1997 would have been for the 14 screen to have been wiped? 15 A. Yes, it would. 16 Q. But in fact it did happen from time to time -- 17 A. Occasionally, and it's again nothing sinister about it, 18 it's just people would stand up and go away and the next 19 person would sit down before they started and the mark 20 might perhaps still be there on occasion. 21 Q. In fact, again by coincidence in this particular case, 22 when you carried out -- when you were involved in the 23 blind test you did in fact find markings on the screen? 24 A. Yes, that's correct. 25 Q. Whether that was due to the screen being jolted or the page 80 1 fact you didn't agree with the points that the points 2 that were on the screen did not seem to correspond to 3 features in the mark? 4 A. I sat down at the comparator and before I really get 5 into any kind of examination, I thought that one or two 6 of the characteristics looked as if they weren't 7 sitting on the -- sorry, the points weren't sitting 8 correctly on the characteristics that we were obviously 9 going to be marking and I mentioned that to Mr Dunbar 10 straight away, as I say. But this is before I carried 11 out any kind of examination myself. There's certainly 12 no comment on the previous markings. Mr Dunbar said 13 something along the lines of, "That shouldn't be there, 14 it must have been Terry. If you just wipe that off and 15 start again" which is what I then did. 16 Q. If I move to the final point that you're discussing and 17 move to paragraph 12, in paragraph 12 you're discussing 18 the possibility of pressure being applied. If I 19 understand what you're writing in paragraph 12 -- and 20 please take time just to read it and be clear -- what 21 you're saying is there would certainly never be any 22 overt pressure by one officer on another. 23 A. No. 24 Q. However, do you describe a situation in which perhaps if 25 not pressure then some subconscious influence might be page 81 1 brought to bear? 2 A. What I'm actually talking about is perhaps it's just 3 your own levels of confidence when you're newly 4 qualified, that you may be asked to check a case and, 5 because of your lack of knowledge and experience, you 6 may not be able to reach -- at that point we had the 7 16-point standard. You had to get to 16 points. It may 8 very well be that you can get 14/15 characteristics and 9 you're absolutely happy that that belonged to the 10 individual concerned; however, you can't get 16. 11 In that situation, that identification, if it's the 12 only mark in the case, would not have left the office. 13 That potentially is a crime that would go undetected. 14 So you would then maybe take that to the first checker 15 who is absolutely confident that there's more than 16 enough information there and say, "I can only see 15". 17 Well, that means that you have stopped that 18 identification from leaving the office. 19 So looking back again you will say perhaps you can 20 understand why there might have been an eye rolled or an 21 exasperated noise that somebody had made because you've 22 actually stopped an identification going out the office. 23 So it certainly wasn't overt pressure in any way, it's 24 just perhaps the level of confidence that you had as an 25 individual to maybe make that decision that you know page 82 1 that you might be stopping an identification leaving the 2 office because you don't at that point have the 3 knowledge and experience to see it was 16. 4 I would say that we don't have that scenario now 5 because we don't have the 16 points standard. 6 Q. We will come on to the practice today in a moment. 7 First of all, perhaps take what's in paragraph 12 8 and then we'll come back to what we were talking about 9 just now. If I understand what you are -- in fact, if I 10 simply read what you're saying in paragraph 12: 11 "As far as pressure in the office was concerned at 12 that time, in general a system that people passed 13 identifications to others for confirmation is not good 14 practice in my view for very experienced fingerprint 15 officers to pass an identification to a very junior or 16 recently authorised officer to confirm it." 17 A. That's quite a difficult one because you're a qualified 18 fingerprint expert and you should be able to look at the 19 information and reach a decision. It was perhaps just 20 me that felt occasionally that, in my mind, it was 21 difficult for me to say that I didn't perhaps agree -- 22 not to identity, never to identity -- but whether or not 23 an impression reached 16 points to allow it to progress. 24 Q. Again, I don't want to personalise this to any one 25 particular officer because I want to look at practice. page 83 1 Mr A, who can just be anonymous just now; you are Mr B, 2 you are the second person to look at this. What you are 3 talking about here is that there are certain risks, let 4 me put it this way, if Mr A is a every senior officer, 5 more senior than you as Mr B? 6 A. Risk, sorry? Could you ... 7 Q. I will start again. 8 Are you indicating that it wasn't good practice for 9 a very experienced officer to be the first one to check 10 and then to pass it on to a junior officer? 11 A. Again, I'm going to have to refer to our current 12 practices because we have a level of anonymity and we 13 don't tend to do it that way. So to me now, knowing the 14 way I work now, I would suggest it's perhaps not best 15 practice. Again, there's nothing particularly bad about 16 it but I just think if you're talking about best 17 practice it's maybe not ideal. 18 Q. Well, let's be specific here. If you look at CO1987, 19 the photograph of XF that you have in front of you, if 20 we assume that the initials below the word "screen" 21 correspond to the order in which they were examined, if 22 I understand it correctly, the first set of initials are 23 those of Mr Macpherson? 24 A. That's correct. 25 Q. Then Mr Geddes? page 84 1 A. Correct. 2 Q. Then Mr McKenna. 3 A. Correct. 4 Q. And then you? 5 A. That's right. 6 Q. Again, I'm not wanting you to criticise Mr Macpherson, 7 but Mr Macpherson I understand to be one of the most 8 senior officers in the bureau? 9 A. Yes, he was. 10 Q. With a particularly high reputation within the bureau? 11 A. Yes, he had. 12 Q. Again, I put a proposition to you for your comment: 13 there might be perceived to be a difficulty if someone 14 who is of very high reputation, believes there to be 15 16 points and then goes to a very much more junior 16 officer that the more junior officer would wish to 17 associate himself with the view of someone as well 18 regarded as Mr Macpherson. That might not be overt 19 pressure, it might be a subtle, unconscious influence on 20 the junior to agree and associate himself with the man 21 who is regarded as a leader in the field? 22 A. I don't think so because I certainly remember it 23 happening. 24 Q. Sorry? 25 A. I certainly remember it happening. I remember myself, page 85 1 not on this occasion, but taking an idents 2 (identifications) to Mr Macpherson and the other senior 3 officers and saying that, you know, I didn't quite see 4 this, could you perhaps explain more to me. So it 5 happened. It might have been a feeling inside you what 6 you've articulated it, but it didn't stop you doing it. 7 Q. Well, what I'm struggling then is to understand what you 8 mean here about it being "bad practice". First of all, 9 did it occur (as perhaps the order suggests here) that a 10 comparison may have been carried out by the senior man 11 and then passed down the line to juniors? 12 A. Well, it's just based on what personnel are available at 13 the time and that's the only reason why it's gone in 14 that order. 15 Q. To return to what you were saying yourself earlier, 16 which I've not properly understood, if you are that 17 junior person, as you were relative to Mr Macpherson at 18 the time, and let us just assume for the sake of 19 argument that you have looked at it under linen glass, 20 you have looked at it on the comparator screen and you 21 are seeing 14, maybe 15, points. As we've already 22 established, you are already now certain of the 23 identification because you are certain at the level of 24 12. So you are certain that this is a unique 25 identification; you have simply not attained the page 86 1 standard required in the courts of 16 points. 2 Are you indicating that there is a source of 3 unconscious influence to try to encourage you to do what 4 others have termed "tease" the points; in other words, 5 just to assume that there is that 16th point there that 6 would enable you to allow that identification to go out 7 of the office? 8 A. You would go the extra length, the length of time you 9 were carrying out your examination. You would try 10 everything you could to get to 16 points. But if 11 16 points aren't there, then they're not there for you 12 because ultimately you've got to go to court and you've 13 got to defend that identification and that quite 14 possibly would involve enlarging that impression. That 15 impression required 16 points. So if you didn't have 16 16 points at that stage, then you know that down the 17 line you would be causing problems for yourself. 18 Q. Is that influence greater if you were the fourth person 19 looking at this and the three people who preceded you 20 are senior to you and have already signed up to this as 21 a 16-point identification? 22 A. I'd say there would be a certain amount of unconscious 23 pressure, but I would reiterate that people did question 24 and people with the fourth signature did say no. 25 Q. One minor point of detail and then we will bring page 87 1 ourselves up-to-date and leave 1997. Forgive me, this 2 is a very, very short point. 3 We have had evidence from a Mr Wilson, a Scenes of 4 Crimes Officer, who looked into the office on one day, 5 12th February, and saw some officers check another 6 print, Y7. He reports that he is able to identify only 7 one or describe only one of the officers as a small man 8 with glasses and a beard. Does that conjure up anyone 9 in particular to you at the time? 10 A. I couldn't say for definite who that could be. 11 Q. That is fine. Let us leave it there. 12 If you can then come to today -- 13 A. Okay. 14 Q. -- and if we again use paragraphs 9 and 12 as the basis 15 for discussion of this, the order in which I have 16 written them down in my page here is the order -- I will 17 just go through them: first of all, no running note 18 taken of characteristics. What's the practice in the 19 SPSA today? 20 A. Well, as I mentioned earlier on, I understand that my 21 statement was referring to the recording of 22 identifications, not characteristics. Practice is today 23 that every case we've got contains a diary page and 24 pertinent information in relation to that case is 25 recorded on that diary page. What you will get page 88 1 occasionally as well is an expert discussing any areas 2 of difficulty that they've had on a print and how they 3 resolved it. Even on occasions people draw diagrams on 4 the diary page to help clarify the position. 5 So, in relation to current practice, a diary page in 6 every case is filled in by every examiner. 7 Q. But would you -- again, let's just assume and I 8 appreciate you work to the non-numeric standard but just 9 assume for the sake of argument that you as an officer 10 have observed 16 points in a particular mark -- just for 11 the sake of argument. Would you, as a matter of 12 routine, record in any way the location of those 13 16 points? 14 A. No. 15 Q. Would you even record as a matter of routine the fact 16 that you found 16 points? 17 A. No. 18 Q. Now, of course, today you work by the non-numeric 19 standard and, if I understand that correctly, that means 20 there's no minimum number of common features? 21 A. That's correct. 22 Q. So do you in any way record the number of 23 characteristics that you have found? 24 A. No. 25 Q. Do you record anything about the quality of the page 89 1 characteristics that have enabled you to say with a 2 number lower than 16 that you can nonetheless attain 3 100 per cent certainty? 4 A. It can be done and it is done, but not as standard. 5 Q. When might it be done? 6 A. Well, it would be done if a particular individual felt 7 that they wanted to explain it to themselves more than 8 anything else because, as I've said before, the 9 conclusions that you make when you have an 10 identification you may have to defend in court down the 11 line. So it's important to record any information that 12 you feel as if may be pertinent when you're asked about 13 identification in court. 14 Q. The diary page you've indicated is completed now with 15 signature or initials for entries? 16 A. Yes, it is. 17 Q. Is it signature or initials? 18 A. Sorry, it is signatures. 19 Q. In this particular case, if XF were to be identified 20 today, the diary page -- which we can bring up again so 21 that you know what we're all looking at -- the diary 22 page is DB0002 and it's again the entry in the very last 23 line, 21st January 1997. 24 The corresponding entry would be signed today? 25 A. Yes, it would. page 90 1 Q. Would it contain any more detail? In other words, would 2 it record the number of officers who've actually viewed 3 them and the identity of the officers? 4 A. Not in that particular line because that would be a 5 separate entry. The recording of the officers involved 6 would have been done subsequent to that and it would be 7 higher up on the diary page. 8 Q. It would ... sorry? 9 A. It would be higher -- previous to that entry, you would 10 have each officer as they carried out their examination, 11 they would then record their findings and sign it. You 12 wouldn't obviously phone out an identification until it 13 had the full checks from what is now three individuals. 14 At that point, the identification would be phoned out to 15 the relevant officer and it would be recorded. 16 Q. Again, associated with this, my point number 3 that we 17 will pick up what you just said was the passing of marks 18 from one officer to another. I understood you to say 19 the practice today would be that it would be anonymised? 20 A. Well, it's a degree of anonymity. It's not completely 21 anonymous. What we do is we put it in a package. We 22 have the fingerprint form, we have the impressions, we 23 have a case envelope, we have a diary page, we have all 24 pertinent information and that's put in a plastic 25 folder. But at the top of that folder we have what we page 91 1 call a QF290, which is basically a white form detailing 2 the crime reference number and each officer as he 3 carries out an examination, he will fill in the diary 4 page but he will stamp the date that he carried out the 5 examination. 6 Q. Sorry, did you say he "will" fill out the diary page? 7 A. The diary page will still be filled out but contained 8 within this package. 9 Q. If I assume that you are the first person examining XF 10 today, you would fill in the diary page, would you? 11 A. Yes. 12 Q. Would you fill in the diary page to say that you've 13 identified XF as the right forefinger of Mr Asbury? 14 A. Yes. 15 Q. And that diary page would be in the envelope that would 16 be passed to the next individual? 17 A. That's what I mean by "degree of anonymity". The 18 covering form that goes with this package has only got 19 stamps on the front to signify that somebody has looked 20 at it. You don't know who that person was. 21 Q. But if I'm the second person in the office looking at 22 this and I open up the envelope -- 23 A. You will find -- 24 Q. -- I will find the photograph, I will find the ten-print 25 form, I will find the diary page that says that you have page 92 1 preceded me and you have identified the right forefinger 2 as that of David Asbury? 3 A. That's correct. What you've got is the first person 4 will use this form, they will put it in a particular 5 tray and the idents pile up in that tray. Somebody 6 comes along and will just take one at random. They will 7 take the next one available and, as they take that, they 8 won't actually know who it is who has carried out that 9 examination. Certainly when you go back to the desk, if 10 you wanted to, you could open up the diary page and see 11 who that first examiner was. But at the point when 12 they're taking a case, they're not aware of who it was. 13 Q. Sorry, I was thinking about the next question. Could 14 you just run that by me again, please? 15 If you have as the first identifier been looking at 16 a batch which includes XF, XD to whatever, say a batch 17 of 20, I understand the practice in 1997 to have been if 18 XF is identified by someone, it's taken out of the batch 19 so that there are only 19 remaining to be identified. 20 Is that correct? 21 A. Yes, that's correct. 22 Q. And is that still the case today? 23 A. Well, no. As I say, it would be passed round in the 24 format that I've mentioned. It wouldn't be passed to 25 anybody in that way. It would be still be put together page 93 1 as a package. Even though it was maybe one mark that 2 was being requested to be checked, it would still have 3 this 290 over the top of it. 4 Q. But then if XF was the only one of the batch of 20 5 that's been identified, the other 19 remain to be 6 eliminated, the checker number 2 would know by looking 7 at the diary page that you have identified or matched in 8 some way XF? 9 A. That's correct, yes. 10 Q. And he only requires to then eliminate -- well, first of 11 all, he requires to check XF? 12 A. He requires to check everything. 13 Q. But insofar as he is checking XF, he knows he's 14 confirming or not your identification? 15 A. Yes, he did. That's correct. 16 Q. And for the other 19 he knows that he has to do a full 17 elimination of those against the whole pool of 18 individuals? 19 A. Well, it's not an elimination. It would just be compare 20 those impressions against the relevant suspect 21 elimination. 22 Q. So far as the final piece in relation to this 23 photograph, are photographs still marked up in any way 24 today? 25 A. They have a sticker on them now which takes away the page 94 1 handwriting aspect which you're able to identify who the 2 person was. But they still signify which impression it 3 is that's been identified. 4 Q. So if we bring up again CO1987, where again there are 5 two bits of writing we've been talking about: the one 6 central at the bottom with number 2, the arrow, and in 7 red at the side and then the screen writing, are you 8 indicating that now instead of someone writing directly 9 on to the photograph a sticker would be placed on 10 photograph? 11 A. Yes. A pre-printed number 2 sticker would be placed 12 there. 13 Q. Would there be any form of arrow? 14 A. No, it's placed underneath the impression it's referring 15 to. There is pre-printed arrows as well if that's 16 required because sometimes impressions can have quite a 17 lot of information on it, a number of impressions, and 18 if it's required to particularly signify which one it is 19 it's referring to then an arrow can be placed there as 20 well. 21 Q. So there would be a number 1 to again to correspond to 22 the particular digit? 23 A. We've got pre-printed stickers 1 to 10 and we would put 24 them on. 25 Q. So you would simply put on as appropriate in this page 95 1 particular case sticker number 2? 2 A. Yes. 3 Q. Below the relevant impression if there happen to be a 4 number on the photograph? 5 A. Below the relevant impression, yes. 6 Q. So in the package then that goes from you as the first 7 comparison person to a second officer, there would be 8 the photograph with the appropriate sticker if a match 9 had been found, there would be the diary page that would 10 complement that by giving the name of the officer and 11 some more detail, and then there would be the ten-print 12 form? 13 A. Yes. 14 MR MOYNIHAN: I am grateful to you, Mr Padden, because I 15 think others don't know you sat here all Friday waiting 16 to be called and were only called at 2.50. So thank you 17 for your patience both on Friday and today. 18 THE CHAIRMAN: Are any applications? Perhaps I should take 19 you first, Miss Galbraith. 20 MISS GALBRAITH: Yes, sir. I do have a number of areas that 21 I would like to address with Mr Padden. I am conscious 22 of the time and wonder if -- 23 THE CHAIRMAN: Well, would you like to reflect on it and 24 tell me after lunch what matters you want to cover? 25 MISS GALBRAITH: I would be obliged. page 96 1 THE CHAIRMAN: And then everyone else can do the same. Just 2 while I remember and we have a moment or two available, 3 if you are the second person (now I'm talking about 4 today), you know that you are checking somebody else's 5 finding? 6 A. Yes, that's correct. 7 THE CHAIRMAN: But in fact you've got to satisfy yourself so 8 you are certain. 9 A. Absolutely. 10 THE CHAIRMAN: Therefore, you don't need to know that you're 11 checking somebody else's work because you are really 12 doing it over again to your own satisfaction. 13 A. People sometimes talk about second-checking or 14 third-checking. It's not. It's carrying out your own 15 examination and coming to your own conclusion. It's 16 nothing to do with what's gone on before you. 17 THE CHAIRMAN: That's what leads me to ask. Would it not be 18 better if it came to you just as if nobody had ever 19 formed any view about it? So, rather than lifting it 20 out of a tray where somebody else has clearly reached a 21 conclusion, it came to you through some more central 22 system so you wouldn't know whether you were doing it 23 anew or -- and I appreciate your reluctance to use the 24 word "check" -- but so you don't know somebody else has 25 already formed an opinion about it? page 97 1 A. Yes, that's a completely anonymous process that you're 2 talking about. Now, in an ideal world that would be 3 what should be happening. 4 However, practically it could never happen because 5 if you look for example like this, we've got a case with 6 473 marks, dozens of suspects, dozens of elims; you've 7 got absolutely no indication what was identified. You'd 8 have to start from scratch. 9 So the only reason that we put the identifying 10 finger number on it is to try and narrow down 11 the comparison; otherwise, you wouldn't know it was that 12 person, you wouldn't know what finger and you'd have to 13 start again and with the volume of work that we've got 14 in the department, unfortunately that's not something 15 that we can do. 16 THE CHAIRMAN: What I was wondering if there was some 17 central person who just handed them out and then kept 18 your results and collated them. 19 A. Well, we do actually use clerical support. We've got 20 two officers who provide clerical support for us who 21 record findings for us. But as regards the way 22 identifications are passed, they are kept in a separate 23 area and, as I say, you don't know who has done it 24 previously. 25 But if what you're talking is to have absolutely no page 98 1 indication of what was identified, if I was the second 2 checker I would have to do the case from scratch and 3 that is extremely time-consuming. 4 THE CHAIRMAN: The only reason I'm asking is that, as I 5 explained or you explained a moment ago, is it doesn't 6 make any difference that somebody else has -- 7 A. It makes no difference, no. Absolutely. 8 THE CHAIRMAN: -- reached a conclusion because you have got 9 to reach your own conclusion. 10 A. Absolutely. 11 THE CHAIRMAN: So therefore the risk of being influenced at 12 all by the fact that somebody else has been satisfied 13 would be eliminated. I appreciate that might be an 14 ideal world, but it would make it completely clear that 15 you're not checking but you're actually forming your own 16 independent opinion. 17 A. It has been explored but, unfortunately, with the volume 18 of work that we do have it's just not practical. 19 THE CHAIRMAN: The other matter I just wanted to ask you 20 about is: this mark XF, can you express any opinion 21 about the quality of that mark? 22 A. No. As I say, I was quite surprised that my signature 23 appeared. So certainly I'm not in a position to comment 24 on the quality of it. 25 THE CHAIRMAN: Thank you very much. We will resume again page 99 1 then at 1.50. 2 (1.00 pm) 3 (Luncheon Adjournment) 4 (1.52 pm) 5 THE CHAIRMAN: Miss Galbraith, you first. 6 MISS GALBRAITH: Thank you, sir. I do have a number of 7 various things I would like to ask this witness about. 8 Broadly initially I would just like to ask his views 9 and opinion on blind testing as a procedure and I have 10 one matter in relation to the use of the comparator. 11 Then I would like to ask him about the actual blind 12 testing of Y7, the circumstances of the testing and what 13 knowledge he may have as to the identity of others 14 involved in the test. 15 I would then like to ask him about some 16 inconsistencies between his oral evidence and his 17 written statement to the Inquiry. 18 I then have a couple of questions regarding the 19 standard elimination that he has given some evidence 20 about, the 16-point standard, and I'd also like to ask 21 him very briefly about the form 13B which the Inquiry 22 has already heard evidence about. 23 THE CHAIRMAN: Yes, all right. I am sure you won't cover 24 ground that has been covered already. 25 MISS GALBRAITH: I shall endeavour not to, sir. page 100 1 Cross-examined by MISS GALBRAITH 2 Q. Mr Padden, can I firstly ask you some questions about 3 the procedure of blind testing. From what we 4 understand, both from your own evidence and from other 5 evidence the Inquiry has heard, this was an ad hoc, 6 unusual procedure that had not been used either before 7 or after; is that correct? 8 A. That's correct, yes. 9 Q. In terms of the use of a comparator, you say in 10 paragraph 5 of your statement that a comparator is never 11 the starting point for examination of a mark. 12 A. That's correct, yes. 13 Q. Do you have a copy of your statement? 14 A. Yes, I do. 15 Q. You go on to explain at paragraph 8 that the comparator 16 is an aid, not a means of identification. I wonder if 17 you could just explain to us please what you mean by 18 this. 19 A. Well, what you want to do when you're making a 20 comparison is to examine the print itself first of all. 21 In an ideal set of circumstances what you would be doing 22 is looking at the print and you'd be looking for very, 23 importantly, perhaps, digit determination. You are 24 looking to see where the print is laid down in relation 25 to what has gone on around that print. It could be that page 101 1 you have got a couple of smudges to the left and right 2 of it. There may be very little ridge detail in those 3 smudges but they may lead you to understand based on 4 your experience it is, perhaps a right middle 5 fingerprint and the two around it would be the right 6 fore and the right ring. So you get to know the print 7 before you go to making a comparison and that's what I 8 was trying to get across in my statement. 9 Q. The feeling I get from your statement is there's a wider 10 range of information that you would like to have ideally 11 before starting a comparison exercise? 12 A. That's right. Perhaps on the lifted impression you 13 would have information as to what the impression had 14 been lifted from which just for an example, again, it 15 may be a curved surface and that may perhaps influence 16 you as to how that print has been laid down. If you 17 knew it was taken from a curved surface it might affect 18 the way the ridges are appearing but if you don't know 19 that information going into a comparison then it's a 20 piece of information you haven't got before you make 21 your comparison. 22 Q. In relation to the blind testing exercise that you were 23 involved in, from the terms of your statement would we 24 be correct in having the impression you were not 25 comfortable with this exercise? page 102 1 A. I don't consider it the correct way to carry out the 2 examination. 3 Q. Why is that? 4 A. Well, as I explained, it takes away the first couple of 5 steps that you would normally have as an examiner, which 6 is a familiarisation with the print, where it's from, 7 where it is in situ in relation to the rest of that 8 impression you're having those steps removed and you've 9 just gone straight to the comparison. 10 As I explained earlier on as well when you're 11 looking at something on a comparator it's only a 12 specific area that's enlarged. So, again, it's stopping 13 you -- allowing you to see everything in relation to 14 even that impression itself because we're talking about 15 say a thumb, for example, thumbs are often very high and 16 very wide but it could be the way it's captured it's 17 only capturing a certain area so you wouldn't have that 18 pre-knowledge that perhaps you might be looking at a 19 thumb, for example. 20 Q. You indicate that on that evening you looked at the mark 21 on the comparator machine that you were due to finish 22 your shift at 8.00 at night. 23 A. That's right. 24 Q. And that the request came to you from Mr Dunbar about 25 7.30? page 103 1 A. It was late on; it was late on. I've said 7.30 but I 2 don't think I can be that specific but it was certainly 3 late on in the day. 4 Q. And you understood a response was required there and 5 then? 6 A. Yes, that's tight. 7 Q. Did you also understand that you were not going to be 8 given any opportunity to look at the mark again? 9 A. Well, I wasn't sure what was going to happen. I said to 10 Mr Dunbar that I'd prefer to look at it the next day 11 using my glasses and Mr Dunbar said well he'd really 12 rather have an answer there and then if possible and I 13 said I wasn't in a position to do so, so that was that. 14 Q. In circumstances such as this, to be told by a senior 15 officer with half-an-hour to go before the end of your 16 shift that an answer was required, the feeling may be 17 that you were put under a degree of pressure to give an 18 answer. 19 A. No, because when I made my comment about preferring to 20 look at it the next day there was no follow-up question 21 telling me an answer had to be given there and then. It 22 was agreed that was -- I wasn't able to give an opinion 23 so that was the end of the matter as far as it was 24 concerned. 25 Q. Do you recall giving a precognition, Mr Padden, to a page 104 1 lady called Jillian Nelson in September 2003? 2 A. I'm aware I've given precognitions previously. 3 Q. I think this particular document was shown to you when 4 you gave your statement to the Inquiry. 5 A. Yes. 6 Q. If I could ask you to have a look at it please it's 7 document reference SG0198. If we could go to the second 8 page, please. 9 If we look at the second paragraph, you say 10 there -- I think you have made some marks further down 11 the page which you explain in your Inquiry statement. 12 Can we take it from that that you have been given an 13 opportunity to look at this precognition and comment on 14 it? 15 A. I have been but I wasn't happy with what was written 16 down at the time. You've seen my -- 17 Q. We see that note, that's right? 18 A. Yes, but generally that isn't -- I know what you're 19 going to ask next, which is that I felt under pressure. 20 Certainly that's not the line -- the next line was 21 relevant one, I felt as if -- I wasn't happy about the 22 whole circumstances of giving the opinion. It wasn't 23 under pressure to give an answer. 24 Q. So your reference under pressure referred to the whole 25 situation and -- page 105 1 A. The whole set of circumstances, I just felt it was not 2 conducive to carrying out an examination in the way that 3 I normally would. 4 Q. I have finished with that document now, thank you. 5 Can you recall what you were told about the 6 exercise? 7 A. I wasn't told anything. I was told it was a quality 8 assurance exercise, I was going to look at it on the 9 comparator and to see what I thought, what my opinion 10 was of it. 11 Q. A quality assurance exercise? 12 A. A quality assurance exercise. 13 Q. Now, we understand that there were others involved in 14 this procedure that evening. 15 Are you aware of anybody else that was involved? 16 A. I'm only aware of Mr Foley because, as I say, when I 17 mentioned it I'd noticed characteristics being what I 18 thought were perhaps w wee bit off. I've mentioned 19 perhaps the comparator being bumped. I mentioned to 20 Alan and Alan had said, "That shouldn't there. I think 21 that was Terry. Just rub that off and start again". So 22 that would be the only way I knew that Terry had been in 23 previous to me. 24 Q. You say in your statement that there was a degree of 25 secrecy about this test. page 106 1 A. Yes. 2 Q. Could that be a reason as to why at that time you 3 weren't aware of anybody else being involved in it? 4 A. Possibly, possibly. My recollection is that people have 5 been asked to go into Mr Ferry's room. I didn't know 6 why and I didn't know what they were doing. That was my 7 recollection. 8 Q. The reason I ask, Mr Padden, is that there would appear 9 to be a number of officers who remain unidentified that 10 may have considered mark Y7 that evening. 11 Can you recall, even broadly, how many officers you 12 would have been working with? 13 A. No. 14 Q. Can you give us a ballpark? 15 A. It's very difficult to try and think of personnel 16 numbers at that time. 17 Q. Certainly for myself are we talking say 10 or 50 or can 18 you ...? 19 A. It's difficult to say. I couldn't say with any kind of 20 degree of certainty. 21 Q. Can you say with a lesser degree certainty just to give 22 us -- 23 A. No. 24 Q. Not at all? 25 A. Not at all. I genuinely cannot remember. page 107 1 Q. Did you work in teams at that time? 2 A. Yes, we did. 3 Q. Did teams cover different police divisions and areas? 4 A. Different geographical areas, that's correct. 5 Q. Are you able to remember how many people would have been 6 in your team? 7 A. Specifically, no, but I would assume it would be round 8 about five or six because that was the normal sort of 9 numbers we had. The normal kind of numbers is about 10 five or six, I would imagine, at that time. 11 Q. How many teams were there? 12 A. Again, I couldn't break it down specifically. No, I 13 wouldn't be able to break it down, sorry. 14 Q. I suppose if we were to consider how many police 15 divisions there were at the time, you may be able to 16 carry out that exercise -- 17 A. No, because several police divisions were amalgamated 18 into different teams, so one team would cover several 19 so ... 20 Q. If I can just take you back to a comment you just made, 21 please, Mr Padden, you mentioned the bump which you have 22 told us about in oral evidence. 23 Can I ask you please to look at your Inquiry 24 statement you have there. It's paragraph 10. If this 25 could be put on the screen, please. Your statement is page 108 1 FI0008. This is page 6, paragraph 10. What you say 2 there is that: 3 "For the blind test in Ferry's room the comparator 4 screen was already marked, from memory in blue ink, with 5 the previous officer's markings. I don't think that was 6 done deliberately, it was just a bit sloppy. I had a 7 quick look at the markings on the screen, and said to 8 Alan Dunbar that I didn't think all the characteristics 9 that had been marked were correct." 10 Is it correct you don't mention anything there about 11 this bump? 12 A. Yes, correct. 13 Q. Is it possible that the marks had been put there by 14 whoever looked at the mark before you and you quite 15 simply didn't agree with the marks that had been made? 16 That's another explanation, isn't it? 17 A. No, as I've said further down it's was before I got -- I 18 think it says here -- before I got to any considered 19 opinion, unless it was just me, as a starting point 20 looking at the screen very, very quick look and not 21 using all the information that was there to come to a 22 conclusion. I certainly wasn't intending it to come 23 across as if I was talking about anybody else's 24 characteristics. 25 Q. I'm not trying to suggest that you made an absolute page 109 1 disagreement with a previous officer but in terms of the 2 initial looking at the mark, a bump is one explanation 3 you have given us today but another explanation is that 4 you may not simply agree with the points marked by an 5 earlier officer. Is that correct? 6 A. Possibly, it's obviously extremely complex marks, the 7 idea I would sit down and see them all falling into 8 place is very unlikely. My recollection was that they 9 didn't seem to be sitting quite right on the -- the 10 points didn't seem to sitting quite right on the 11 characteristics they were referring to and that's what 12 I'm meaning by saying it looked immediately as if they 13 perhaps were -- I said off wrong ... so I, as I say, 14 made the point and started from scratch then. 15 Q. Thank you, I have no further questions on that. 16 In terms of the working practices in 1997, you 17 mentioned that in your statement and I think you 18 clarified with Counsel to the Inquiry this morning that 19 you didn't agree with what had been written in your 20 statement. 21 A. Yes, that's correct. 22 Q. Specifically, it was noted there that there tended not 23 to be a running note of characteristics. 24 A. Yes. 25 Q. Your evidence is today is that you don't agree that page 110 1 that's what you said. 2 A. Yes. 3 Q. It was a running note of -- 4 A. The officers involved in the identification. 5 Q. The officers involved. Obviously, that's not something 6 you picked up prior to signing the statement. 7 A. That's correct, yes. 8 Q. But would I be right in my understanding of the evidence 9 that you then went on to agree with Counsel to the 10 Inquiry that, in fact, there was no running note of 11 characteristics kept in 1997 so that's -- 12 A. Of ... sorry. 13 Q. So what is written here is actually accurate? 14 A. What it is accurate but there's no running note 15 characteristics today either. It's not something that 16 happens. That's why it doesn't really make any sense. 17 Q. We can take it that what has been written here is 18 accurate and what you seem to have been explaining to 19 the Inquiry statement taker is something really quite 20 different? 21 A. I was trying to emphasise the point that where an 22 examiner carries out a comparison now they immediately 23 record their findings and that's done as it passes on 24 between each examiner. 25 Q. I think that they are obviously quite different? page 111 1 A. They are. Characteristics you wouldn't keep a running 2 note. I don't even know what that means. You may 3 reference one or two characteristics, as I explained 4 earlier on, that had presented some sort of difficulty 5 and areas that caused difficulty but not a running note 6 of characteristics. 7 Q. Can I go on to ask you about another -- I was unclear 8 about your evidence as it matched with your Inquiry 9 statement. In paragraph 12 of your statement -- could 10 we have that on screen please, page 7 of the document -- 11 I know that Counsel for the Inquiry did go over this 12 with you but I have to say I still remain a little 13 unclear. 14 If I can just take you to paragraph 12, please, what 15 you say is: 16 "So far as pressure within the office was concerned 17 at that time, in general, in a system where people 18 passed identifications for others for confirmation it 19 was not good practice in my view for very experienced 20 fingerprint officers to pass an identification to a very 21 junior and recently authorised fingerprint officer to 22 confirm it." 23 In fact, I think earlier in your statement you 24 explained that this did happen. 25 A. Mm-hm. page 112 1 Q. Are you saying that you are changing your view on that? 2 A. Sorry, can you -- 3 Q. Is this accurate? You're talking about pressure within 4 the office and go on to say that it was not good 5 practice for very experienced fingerprint officers to 6 pass identifications to more junior fingerprint officers 7 and that could create an atmosphere of pressure. 8 A. As I said earlier on, I don't think it's best practice 9 to have that path, if you like. 10 Q. I think you clarify that by saying a junior officer 11 would be not inclined to doubt a more experienced 12 officer's work, quite naturally. 13 A. Well, it presents a situation for yourself to think, as 14 I've mentioned further down, you know that you're 15 dealing with very experienced officers and maybe you 16 just realise you don't have the same level of knowledge 17 and experience. That's what that's referring to. 18 Q. You go on to say that one other officer shared that view 19 and there was a general feeling that one or two people 20 were not happy if their identifications were not 21 confirmed by others. 22 Can I ask who you were meaning by that? 23 A. No, it was just a general feeling. I wouldn't want to 24 specify individuals because I can't remember specific 25 incidents. page 113 1 Q. You can't remember a specific incident yourself where 2 that happened? 3 A. No, I can't. 4 Q. You gave quite a full explanation of your approach to 5 the standard of elimination, I think, elimination being 6 at that time you would use 12 points and then go on to 7 16 points for court purposes. 8 A. That's correct, yes. 9 Q. On Friday afternoon you gave evidence that in this case, 10 in this murder inquiry, the eliminations were being 11 checked by four fingerprint officers. Do you recall? 12 A. Yes, that's correct, yes. 13 Q. And certainly there is evidence to indicate that these 14 checks were being done, all of them were being done, to 15 the 16-point standard. Is that something you were aware 16 of? 17 A. I've heard it in evidence around this case but not 18 specifically as being a member of staff, if you like. 19 Q. Office chat; is that -- 20 A. To be honest I think it's information I might have 21 gathered from the Internet or whatever in relation to 22 the case. I'm not aware of it being specifically 23 office-based chatter where it came from. 24 Q. We understand that there was a very high volume of 25 fingerprints in this case. page 114 1 A. Yes, there was. 2 Q. For all of the fingerprints to be eliminated to a 3 16-point standard and checked with four officers, was 4 that the normal procedure, as you understood it? 5 A. I'm not sure. Looking back it seems to me to be quite a 6 high standard, as if it's been really -- I think the 7 expression earlier on was used is belt and whatever it 8 is -- 9 Q. Belt and braces? 10 A. -- and it's absolutely covering it from every single 11 angle. It's probably consistent with the people 12 involved wanting to make sure it was done to the nth 13 degree. 14 Q. Are you in a position to say whether this process using 15 four officers to confirm to a 16-point standard, whether 16 that had been done in other investigations? 17 A. I don't know. 18 Q. Can we also take it that you're not in a position to say 19 who would have instructed the examination to that 20 standard and for what reason? 21 A. No, I couldn't do that. 22 Q. Going back to your statement to the Inquiry, you explain 23 in paragraph 14 a little about the feeling within the 24 office of SCRO and you say that there seemed to be a 25 general feeling that the case would be upheld or the page 115 1 identifications of the SCRO personnel would be upheld. 2 If I can ask this to be put on the screen please, 3 this is at page 9, the top paragraph. You say halfway 4 down there that: 5 "Our belief came from the fact that we had been told 6 by others in the past that we were the best fingerprint 7 bureau in the world ..." 8 Can I just ask you, please, Mr Padden, where you 9 understood that comment to have come from? 10 A. The chiefs at the time, the police officers who were in 11 charge of the office at the time. 12 Q. So it was within the SCRO office? 13 A. Yes. 14 Q. How long had you been qualified in 1997? 15 A. Two, perhaps, two, two and a half years. 16 Q. You go on to mention that you had heard about the 17 training of the American expert involved in the case. I 18 assume you are referring there to a gentleman, Pat 19 Wertheim? 20 A. Yes. 21 Q. At that time did you know anything about Mr Wertheim's 22 knowledge, experience or training? 23 A. No. 24 Q. This was something you had been told from within SCRO? 25 A. It was -- well, certainly not in any official capacity page 116 1 but it was again what you would call workplace chatter 2 that Mr Wertheim had had a two-week training course. I 3 believe that was the information. 4 Q. The Inquiry may hear from other witnesses a little bit 5 more about Mr Wertheim. 6 A. Absolutely. 7 Q. I can just lastly ask you briefly -- and it's not a 8 matter that has been raised with you up until now -- the 9 Inquiry has heard evidence about a form 13B which, if we 10 can have it on screen, please, the reference number is 11 DB0251. Is that a form that you would recognise? 12 A. Yes. 13 Q. You will see there's an annotation written about halfway 14 down the form in between asterisks. It says "ident 15 required for deceased". 16 A. Yes, I see that. 17 Q. In terms of the word "ident", obviously 18 identification -- 19 A. Yes. 20 Q. -- what would you understand that instruction to mean to 21 you as a fingerprint expert? 22 A. To be honest, I'm not sure. It's not something that I 23 would expect to see. 24 Q. Is that an instruction or a comment that you have seen 25 written before, on a form before? page 117 1 A. I've not aware of seeing that before, no. 2 Q. You're not aware of seeing that before. 3 A. No. 4 Q. Have you seen this particular form? 5 A. I haven't seen this particular form but I've read the 6 evidence from previously, the Scene of Crime Officer I 7 believe put it there. For me, it's not something I 8 would expect to see. 9 Q. Can you assist us at all with what your interpretation 10 would be if you were to receive a form like that? 11 A. I'm not sure what the person's trying to get across. In 12 any case like this, the deceased would be the first elim 13 that would be checked. It's that person's house so that 14 person would be checked against all marks. So I'm not 15 really sure why that would be there. 16 THE CHAIRMAN: If the item was found in somebody else's 17 house ... 18 A. Again, that's the information we receive. You can see 19 there's not a lot on it. For me, personally, it's just 20 not something I'm familiar with. 21 MISS GALBRAITH: Thank you very much. 22 THE CHAIRMAN: Miss Grahame, do you have any questions of 23 the witness? 24 MISS GRAHAME: No, thank you, sir. 25 THE CHAIRMAN: Mr Macpherson. page 118 1 MR MACPHERSON: No, thank you, sir. 2 THE CHAIRMAN: Mr Holmes? 3 MR HOLMES: Thank you, sir, there are four areas I would 4 like to cover with the witness. The first relates to 5 the training of the SCRO officers; the second relates to 6 practice in 1997 by comparison with practice today; the 7 third relates to his involvement with mark XF; and the 8 fourth relates to his involvement in what has become 9 known as the blind test. 10 THE CHAIRMAN: Yes, very good. 11 Cross-examined by MR HOLMES 12 Q. Mr Padden, if I can cover with you first the training 13 that you went through in order to become an officer at 14 the SCRO, you say in your statement that you undertook a 15 period of five years' of training. Is that correct? 16 A. That's correct, yes. 17 Q. What did that involve? 18 A. It involved mostly on the job training. You worked 19 quite closely with a senior more experienced officer who 20 would check your work. You sat examinations. Me, 21 myself, I went to Durham National Training Centre as 22 well and you ultimately then sit a final test, a final 23 examination, covering various aspects of what it means 24 to be a fingerprint examiner in which you would be 25 tested on comparison and you would be tested on your page 119 1 courtroom skills. 2 Q. So it's a significant undertaking. It's a long time and 3 it's a lot of exams that you have to sit? 4 A. Yes, it is. Previous to myself it was actually seven 5 years and when I was training it was five years. 6 Q. When that period of training ends, that's not it, is it? 7 A. No. 8 Q. There's continuing assessment after that. 9 A. Absolutely. If you imagine a situation where you're 10 identifying a case, you're passing it on to other 11 individuals to check and those individuals are checking 12 your work so you're being tested all the time. Other 13 people are looking at your work all the time. 14 Q. So on a daily basis your work's peer reviewed because, 15 as you say, all the identifications that you make are 16 checked by other fingerprint officers. 17 Is there other training in addition to that? 18 A. Well, the likes of me, myself, I went to Durham again 19 for a course in third level detail training. We had 20 days here and there. Mr Mackenzie ran a course in 21 relation to palm -- identifying palm impressions. So 22 there was various inputs we have throughout our career 23 to keep yourself up to speed and refreshed. 24 Q. Can I firstly check with you: Durham, is that the 25 national training centre? page 120 1 A. Yes, it is. 2 Q. Secondly, the Mr Mackenzie that you referred to there; 3 is that Roberts Mackenzie? 4 A. Yes, it is. 5 Q. And Mr Mackenzie was responsible for what within the 6 bureau? 7 A. Well, he was the deputy head; he was the boss basically. 8 Q. So are we to understand it was Mr Mackenzie who was 9 responsible for the training that was put in place for 10 fingerprint officers? 11 A. To be honest, I'm not a hundred per cent sure how it was 12 decided, as a trainee or whatever you would just know 13 you're being put forward for particular courses, or 14 days, or inputs or what have you. 15 Q. Were the tests that were set within the Glasgow Bureau? 16 A. In relation to ...? 17 Q. Assessments. 18 A. We currently sit an independent assessment every year. 19 The first one, however, that we ever sat was designed by 20 Mr Mackenzie and it's then been taken over by an 21 independent organisation. 22 Q. Do you know if the tests themselves were ever reviewed 23 by outside organisations? 24 A. I believe that the first test that Mr Mackenzie put 25 together was reviewed by the FBI. page 121 1 Q. Do you know what their view of that test was? 2 A. I would defer to Mr Mackenzie but I believe that the 3 opinion was it was too hard, if you like. It was too 4 high a standard. 5 Q. It was too hard? 6 A. It was too hard. 7 Q. Coming from the FBI that's quite an accolade. 8 A. Yes, it is. 9 Q. Did the officers within the Glasgow Bureau regard the 10 training is fairly stringent as well? 11 A. Yes, it is. 12 Q. So it's not done from within the SCRO but from outside 13 agencies that the training has been approved? 14 A. Yes. If I can make one point on that subject: the 15 nature of the area that we cover is Glasgow and the 16 surrounding areas and by definition we have to deal with 17 a huge amount of very serious crime. We deal with a 18 huge amount of murders, attempted murders. That's not 19 unusual for us; that's our daily workload, so I would 20 just like to make the point that the people involved who 21 have worked in this area and currently work in the SPSA 22 are dealing with high level, very serious cases on a 23 daily basis. 24 Q. So is there a need then for them to be amongst the best 25 trained fingerprints experts available? page 122 1 A. Yes, absolutely. I don't know if I can mention this, 2 Mr Chairman, but I did take a snapshot this morning of 3 the current workload our special case section deals 4 with, as the name suggests the more special cases, and 5 just as an example of what we've got today, the team 6 leader from that section gave me that, we're currently 7 working on 9 murders, 12 attempt murders, 14 serious 8 assaults, amongst many other cases. That's just a 9 normal day that we have at one section. 10 So I think it's important to -- I feel as if I 11 wanted to get across to the Inquiry the level of 12 knowledge and experience that the people involved in 13 this case have. 14 Q. There's clearly quite a level of skill involved in 15 fingerprint comparison work; is that fair to say? 16 A. Yes, it is. 17 Q. Because it's a lengthy training period and it's 18 something that takes a long time to learn to do? 19 A. Yes, it is. 20 Q. Are there individuals that you would regard within the 21 bureau as having been particularly skilled? 22 A. I think there's, like any walk of life, you've got 23 individuals that excel, that are more of a natural. You 24 can look at sport; you can look at anything. I think 25 it's fair to say that within the department there have page 123 1 always been a couple of individuals who have been held 2 in very high regard based on their work and based on 3 experience. 4 Q. I think you mentioned this morning that one of those 5 individuals was Mr Macpherson? 6 A. I think Mr Macpherson was generally regarded as the top 7 person in the bureau? 8 Q. Is there anyone else who was particularly highly 9 regarded around that time? 10 A. I would suggest all of the staff that were involved in 11 this Inquiry, Mr Mackenzie, Mr Dunbar. They're all very 12 experienced and knowledgeable officers. 13 Q. Is it fair to say that the test of those skills comes 14 not in the routine identification work but perhaps when 15 the conditions for comparison are not as favourable as 16 you will like? 17 A. Could you expand on that please? 18 Q. You will get occasionally marks which are very easy to 19 identify; is that correct? 20 A. Yes. But the situation is that it's not unusual to have 21 a scene of crime mark that's actually better quality 22 than the ten-print form that you're looking at. On 23 occasions that happens and it's great. It's not the 24 standard though. What normally happens is you're 25 looking at impressions that are subject to all sorts page 124 1 of -- sorry, a number of factors that enable you to look 2 at that clearly being reduced and that would be where 3 it's been taken off the donating article, if its dirty, 4 if it's sweaty, if it's moved, if the person has double 5 touched the impression as they're laying it down. 6 There's any number of factors that have been taken into 7 account when you are looking at a scene of crime 8 impression, the important point being that it was not 9 intentionally. It was left accidentally. The person 10 didn't mean to do it. It wasn't taken under 11 ideal circumstances, so the skill as a fingerprint 12 examiner is to look at this information and to try to 13 come to a conclusion as to what happened? Is this the 14 same person? But it's a difficult job. When you're 15 talking about specifically poor quality marks, it's a 16 difficult job. 17 Q. So as in any walk of life the skills that you have taken 18 the time and trouble to develop come into play when 19 faced with those difficult marks? 20 A. Absolutely. That's when your training kicks in. 21 Q. If I can move on from the training to the practice that 22 was in place in 1997, we've heard a lot about standards 23 for court and what was recorded after the examination 24 took place. I wonder if you could say a bit about what 25 the actual physical process of conducting a comparison page 125 1 involves. 2 A. In any circumstance? 3 Q. In any circumstance. 4 A. Well, what you would do is you -- to take it back a bit 5 further, we receive work from the Scene of Crime Unit, 6 Scene Examination Unit I should say. They deliver 7 batches of work. That work is logged in our reception. 8 We've now got an office management system that also logs 9 all the details in relation to the specific case. A 10 case envelope is allocated. Diary pages are allocated. 11 The case is then passed to the team that deals with that 12 relevant area. Individuals, on the instructions of the 13 team leader, will then take whatever category of work 14 they decide is most relevant. You've got a number of 15 categories of work, you've got eliminations to complete, 16 you've got suspects to compare, you've got marks. Cases 17 come in where there's no elims and no suspects and 18 therefore they have to be assessed and by "assess" I 19 mean trying to determine what digit created them and the 20 are launched on our ID 1 system, which is a computerised 21 searching system. 22 But if we take the example of a suspect case, you 23 would take the case and you would have your fingerprint 24 form, you would have your photographed impressions. 25 First of all, you would look at the photographed page 126 1 -- sorry, first of all, you would make sure you had 2 everything that you should have, which is all the 3 necessary information. We've got what is called a Log 4 Card Sheet which is generated from the Scene Examination 5 Unit and that's got all the relevant details in relation 6 to that crime, where it happened, how many marks should 7 be received, et cetera. 8 You check your information's all correct, you check 9 you have got everything you should have. That's already 10 been done at reception but you double check it again. 11 You then take the impressions and you start an 12 examination of those impressions before you look at any 13 known impression. You look at those impressions and 14 decide first and foremost if there's sufficient detail 15 to enable you to go ahead and make any kind of 16 comparison or assess it for the ident 1 system. 17 If you are happy that there's enough friction ridge 18 detail present that will allow you to ultimately make an 19 identification on that you would then go ahead and if 20 you had, for example, a suspect you would then look at 21 the suspect. 22 What you would do initially is look at the 23 fingerprint impression from the scene of crime and you 24 would look at the fingerprint detail that's present 25 there. You would have in your head -- you be doing page 127 1 this, what I mentioned earlier on, which is digit 2 identification, so you would be trying to have -- 3 THE CHAIRMAN: I think if you could go a little more slowly. 4 You are going very quickly at the moment. 5 A. Sorry. 6 What you would do -- sorry. 7 THE CHAIRMAN: Sorry, to interrupt you. You said you would 8 have a digit determination -- 9 A. A digit determination is where you are trying to narrow 10 down to what finger donated that impression. That would 11 be the first step so if you're looking at an impression 12 and you're thinking, going by all the evidence there, 13 "That looks to me like a right thumb", you've got your 14 suspect and the first place you're going to look at is 15 his right thumb. 16 If you don't identify it's his right thumb go on and 17 look at everything else anyway but what you're trying to 18 do is narrow down your search, you're trying to home in 19 on where you believe that impression came from. 20 The actual act of making a comparison, you would 21 have your two magnifying glasses, you have what we call 22 pointers, some people call picks, and you're picking out 23 information that you have already identified on the 24 unknown and you're looking for that information on the 25 known. So where perhaps you find a characteristic, what page 128 1 we call a bifurcation (which is a ridge deviates) where 2 you find that in a particular geographical area on that 3 impression perhaps to the left of what we call the delta 4 (which is a corner point) you would look for that 5 equivalent area on the known, you look for that 6 characteristic to see if it exists in that area. If it 7 exists it you would then move on to the next 8 characteristic you can see on the unknown and you would 9 see if it's there and shown and replicated on the known. 10 After that, it's a matter of looking and following the 11 characteristics to see if they are all there. If they 12 are all in sequence and agreement and, most importantly, 13 that there's nothing in disagreement. 14 Once you've got to that entire volume of information 15 on that impression, everything is in agreement, 16 everything's consistent with the relevant area on the 17 known, then you're happy to say that those two 18 impressions were made by the same person, this is 19 identical. 20 MR HOLMES: Thank you, sir. 21 It's the actual physical process of comparison that 22 I'm interested in. You have said that you will look for 23 detail within the mark that you've been given and then 24 you will proceed to compare it with the known mark. 25 Is there anything that differs in that process page 129 1 between what happened in 1997 and what happens today? 2 A. No. 3 Q. We've heard a lot of mention of how many points of 4 comparison are required for an identification or for an 5 elimination, but when you are examining a mark is what 6 you are fundamentally trying to do to attribute 7 ownership of that mark? 8 A. That's it. 9 Q. Once you have done so, do you then go on to tally up the 10 number of points that you can see in sequence and 11 agreement? 12 A. I'll speak personally. I'm moving further and further 13 away from that. It was my training to look, to count. 14 That's not relevant any more. It's all about enough 15 evidence. So I'm actually, in my own mind, I don't have 16 that running tally any more. It's something you would 17 perhaps bear in mind but it's not the driving force the 18 way it used to be. 19 Q. So the process is not a simple case of point 2, 3, 4 to 20 16 identification? 21 A. No, certainly not. 22 Q. It's you looking at the mark and, in your expert 23 opinion, deciding whether that is a match to the known 24 mark? 25 A. Yes, absolutely. I think it's important to mention as page 130 1 well that I mentioned the course I attended which was a 2 third level detail course. Third level detail is beyond 3 characteristics. Its a finer detail again. It refers 4 to the ridges themselves are made up of individual 5 blocks that form the ridge. The way that those ridge 6 blocks are put together is unique as well. If the 7 print's clear enough you can use detail on the ridges 8 themselves to help you to come to that conclusion. That 9 was never put forward as part of your identification 10 because all it was was thinking about numbers. But 11 that's an example where you use all the 12 information present to reach your conclusion. It's 13 nothing to do with counting numbers; it's to do with 14 unique characteristics within that print. 15 Q. Is that to do with the shape of the individual ridges if 16 you were to see them magnified to a huge degree -- 17 A. If they are very clear you can use that information as 18 well. But it's a bit like a line of bricks. It looks 19 at first appearance to be running nice and smooth but 20 actually if you look at it in detail the bricks 21 themselves don't form equally, they come up and down, 22 they go in certain paths and that information itself, 23 again it's just something else you would use when you're 24 coming to your conclusions. It's certainly not just 25 about trying to get this magic figure. page 131 1 Q. And would the officers in 1997 have been doing the same 2 thing? 3 A. They would have been doing the same thing but it wasn't 4 articulated the same way. We didn't think of it in 5 those terms. Third level detail is something that's 6 come up more recently, not that recently now but 7 certainly 1997 everybody would have been doing it but 8 there perhaps wasn't the terminology there that we are 9 talking about today. 10 Q. So is it fair to say the process of examining a 11 fingerprint and identifying it as that of a known donor 12 is exactly the same, it's just the way that that is 13 explained to juries that differs from those days? 14 A. Yes, I think that's a big factor, the way it's 15 explained, the paperwork's quite different now. 16 Q. If I can move on then, there is a difference between 17 1997 and now, you mentioned earlier on, as to anonymity, 18 when the mark was forwarded to you by another officer. 19 There is not, as I understand your evidence, 20 completely anonymity nowadays; is that the case? 21 A. That's correct, yes. 22 Q. When was anonymity brought in? 23 A. I would struggle to give a date on that one. 24 Q. Do you know whose instruction it was that anonymity was 25 brought in in the first place? page 132 1 A. It would certainly be a decision from the top but 2 specifically who it was I'd struggle to ... I think it 3 was in relation to one of the many inquiries we had, it 4 was felt this was the ideal way to go. So, I think, if 5 I remember correct, we tried to make it work as best we 6 could and what we ended up with was an approximation of 7 anonymity. 8 Q. When it was first brought in was there an attempt 9 to achieve complete anonymity between officers? 10 A. Yes, there was. 11 Q. How long did that go on for? 12 A. As I mentioned earlier on, and Mr Chairman mentioned it, 13 it's something that was tried but it just wasn't 14 successful. It requires an enormous amount of manpower 15 to make it work successfully. 16 Q. As a result of the enormous amount of manpower that was 17 required you have reverted to a system whereby you can, 18 if you wish, identify the officers that have gone before 19 you in examining marks that you are now looking at? 20 A. Not at the point that you take the case, which I think 21 is quite relevant. It's in a tray. It's got a covering 22 sheet on it. It doesn't indicate who that officer was. 23 You take that case and you go back down and sit at your 24 desk. You can then go into it and then find out who 25 that first officer was, certainly. page 133 1 Q. I think what you said is that although you used to have 2 a way of knowing what officers had gone before you, even 3 if those officers were very experienced officers you 4 have, on occasion, gone back to them and intimated that 5 you could not find 16 points? 6 A. Yes, absolutely. 7 Q. So in reality, even under a system where there was no 8 anonymity whatsoever, it made no difference who had gone 9 before you were still giving your expert opinion? 10 A. As I say, I think I've covered that. Genuinely, there 11 was people -- there was questions of senior examiners 12 and what I was trying to get across is it maybe didn't 13 feel very comfortable to me to do that but I would do it 14 and so would other people. 15 Q. If I can move from practice in general to your 16 involvement with this particular case, you have been 17 shown a set of initials on a photograph, which I think 18 relates to mark XF, and I think you said that those may 19 be your initials but you're not 100 per cent sure. 20 A. Well, I think I mentioned this morning I can't really 21 see any other conclusion to come to apart from it's 22 mine. 23 Q. There's nobody else whose initials would be P, is there? 24 A. No, that's -- that's not mine. 25 Q. I think you were asked in relation to a document CO1444 page 134 1 at page 5, the third column in that relates to the marks 2 XD to XY and it appears simply to have been scored out. 3 You were asked whether there was any explanation for 4 those boxes being crossed rather than being signed off. 5 That's the columns next to the mark. 6 You said at the time and for those using LiveNote 7 it's at page 51, line 9, the question begins, you said 8 it was difficult to say but one explanation could be 9 that the boxes had been crossed through because all the 10 marks in that one had been dealt with. Is that correct? 11 A. It was a possible explanation, yes. 12 Q. I wonder if you could have a look at CO0209, please, 13 page 14. First of all, can you tell me what that 14 document is? 15 A. Again, that's the major incident worksheet that details 16 the impressions received and where they were recovered 17 from and the right-hand side shows the disposition in 18 relation to what happened with those impressions. 19 Q. The marks are identified in the fourth column on that 20 page; is that correct? 21 A. Yes, that's correct. 22 Q. Marks XD to XT are shown on that page. 23 A. To XU. 24 Q. To XU, sorry. Those would be the same marks or some of 25 the same marks that were covered in the column of the page 135 1 previous document? 2 A. Yes, that's correct, sir. 3 Q. Is it apparent from that document that all these marks 4 have either been identified, eliminated or determined to 5 be fragmentary and insufficient? 6 A. There's no outstanding marks there. 7 Q. So does that offer an explanation as to why that has 8 been crossed out? 9 A. Yes, it does. 10 Q. Thanks. 11 In relation to your involvement with the blind test, 12 as it has now become known, you said on Friday you were 13 given no reference whatsoever as to what you were to do 14 during that test; is that fair? 15 A. That's my recollection, yes. 16 Q. In fairness to you your statement says that you were 17 asked to look at a scene of crime impression against a 18 known impression and to give an opinion as to whether 19 they were identical. 20 A. Yes. 21 Q. So no guidance was given to you apart from being told 22 what the objective of the exercise was? 23 A. Sorry, that doesn't make a lot of sense. There was 24 guidance that would go in and carry out an examination 25 but, as to anything around that, no, I was given no page 136 1 information. 2 Q. You have said that you had had a conversation with 3 Mr Dunbar at the start of that exercise and you had seen 4 some markings on the comparator machine when you had 5 gone in. Is that right? 6 A. That's correct, yes. 7 Q. The conversation you had with him went along the lines 8 of Terry must have left those on. 9 A. Mmm. 10 Q. You took that to mean Mr Foley; is that correct? 11 A. Yes, I did. 12 Q. If evidence is heard that perhaps it wasn't Mr Foley who 13 looked at the comparator machine directly before you, 14 could that be incorrect? 15 A. It's my recollection that that was the conversation. If 16 somebody tells me that maybe wasn't the conversation I 17 would take that on board but I'm pretty sure that that's 18 what it was. 19 Q. If you were looking at marks on the comparator machine 20 was it uncommon to find the markings made by the person 21 who had been before you? 22 A. It happened occasionally. 23 Q. When it happened occasionally, I think you explained 24 this morning you simply removed those marks from the 25 screen image? page 137 1 A. Yes. 2 Q. I take it you made no conclusions of your own based on 3 the marks that were already there? 4 A. No, definitely not. 5 Q. Because, as you have already explained, if you are going 6 to sign off an identification, then it's got to be you 7 that explains the 16 points that you yourself have 8 discovered? 9 A. Yes, I did mention that before as well about having to 10 defend your identification in a court of law down the 11 line. You have to be absolutely familiar or happy that 12 what you've said is, indeed, the points that are there. 13 Q. So any suggestion that you would have been influenced by 14 anyone who had gone before is incorrect because it would 15 be hazardous for you to do so? 16 A. Correct. 17 Q. Could I just have a moment. (Pause) 18 I have one more question. It is slightly out of 19 order in relation to XF. You were asked this morning 20 how you knew that you were looking for 16 points in 21 relation to XF. 22 In 1997, if you were the fourth checker on any 23 comparison, how many points would you have been looking 24 for? 25 A. If this is in relation to a suspect or elimination case page 138 1 is that? 2 Q. Yes. 3 A. Well, you wouldn't normally be asked to look at an 4 elimination form on a comparator. If you were, it's my 5 understanding -- my recollection, sorry, is that a 6 suspect is 16 and an elim is 12. 7 Q. What I'm asking is if you were the fourth checker on any 8 comparison would you be looking for 16? 9 A. Yes. 10 Q. Why is that? 11 A. Because that was the court standard. 12 Q. Eliminations were checked by how many people? 13 A. At that time, if it was a special case, it would have 14 been normal to be two people. 15 Q. So if you are the fourth checker you're not looking at 16 elimination, you're looking at suspects? 17 A. Yes, that would be correct. 18 MR HOLMES: Thank you. That is all the questions I have. 19 THE CHAIRMAN: Do you have any questions? 20 Re-examined by MR MOYNIHAN 21 Q. Yes, sir. 22 Just to tidy one point up in connection with the 23 print XF and other comparisons -- I may have been 24 looking at the wrong sheet -- if we could bring up 25 CO1444.3, you have been asked, Mr Padden, about page 139 1 comparison with the batch or you call it range that 2 included XF, which is the column XD to XY. 3 A. Yes. 4 Q. I have, in fact, brought up now page 3 on the PDF, which 5 gives us, as the first elimination, Marion Ross, who was 6 the deceased. Do you have that? 7 A. Yes. 8 Q. In fact, on this particular page do we see a number of 9 entries completed for the batch XD to XY? 10 A. I see that, yes. 11 Q. So far as what is written in manuscript above the word 12 "name" at top, order in which to proceed with numbers 13 down, for example, Marion Ross is, if I understand it 14 correctly, number 1? 15 A. Yes. 16 Q. So would that be that looking at any batch Marion Ross 17 would be the number 1, the first person to be compared 18 for elimination purposes? 19 A. As it's her house the most likely explanation for the 20 impressions you'd find would be the householder. 21 Q. So, in fact, by looking at a later page which I will 22 come to just in a moment I may have given a misleading 23 impression about the lack of reference for XF being 24 checked but do we see on this page that XF in that 25 batch, if it's assumed to be in that batch, has been page 140 1 checked against a number of individuals? 2 A. Yes, that's correct. 3 Q. Perhaps, if we look at the next page, which is page 4, 4 do we see, in a sense, the interest has petered out in 5 the batch because they may all have been dealt with 6 before? 7 A. They have been accounted for. 8 Q. For some reason Mr Asbury appears on the PDF page number 9 4. Do you see that? 10 A. I see that, yes. 11 Q. With no comparison again against the batch XD to XY? 12 A. Yes, I see that. 13 Q. Again, the page I looked at before was, in fact, page 5, 14 where for some reason Mr Asbury appears for a second 15 time. Is that correct? 16 A. Yes. 17 Q. What I'm interested in, he appears to be numbered 56 or 18 57 in this. 19 A. Yes. 20 Q. Just in fairness now you can see some comparisons can 21 you explain to me why there's not something more 22 comprehensive in respect of XF if Mr Asbury's down at 56 23 or 57 on this list? 24 A. I can't, no. 25 MR MOYNIHAN: It was my mistake not to have shown you the page 141 1 earlier pages, I do apologise. 2 THE CHAIRMAN: There is just one matter I want to ask you 3 about. You joined the force, according to your 4 statement, in 1988 and then you qualified about 1993. 5 A. Round about, yes. 6 THE CHAIRMAN: As a fingerprint officer? 7 A. Uh-huh. 8 THE CHAIRMAN: Then you could carry out investigations, sign 9 reports and so on. So you would have been, I think as 10 you said, about three or and a half years -- 11 A. I said two and a half but it would have been about three 12 and a half. 13 THE CHAIRMAN: Nearer three and a half, I think. 14 A. Yes. 15 THE CHAIRMAN: Then you go on, you say upon qualifying you 16 were around various areas of fingerprint or special 17 cases, fraud, drugs and volume crime. 18 A. Yes. 19 THE CHAIRMAN: This would be a special case? 20 A. This would be a special case. 21 THE CHAIRMAN: So there was no reason why you wouldn't be 22 dealing with it like any other officer? 23 A. No. No, sorry, can you -- 24 THE CHAIRMAN: All I was trying to see was whether -- there 25 was no bar to you being engaged at this particular page 142 1 crime. 2 A. No, it's just coincidence where you're sitting. 3 THE CHAIRMAN: It was just the fact that you had only been, 4 as it were, the fourth person, XF, it made me wonder 5 whether you were not engaged in that type of work fully 6 at that time but you would have been. 7 A. Yes. 8 THE CHAIRMAN: There's no reason why not? 9 A. No. 10 THE CHAIRMAN: Thank you very much and thank you for 11 accommodating the other witnesses who were saved waiting 12 around. 13 A. No problem. 14 THE CHAIRMAN: Now the timing is just right, 3.00. 15 (2.50 pm) 16 (A short break) 17 (3.02 pm) 18 MR MOYNIHAN: Thank you, sir. Maybe it will assist, sir, if 19 I repeat for the others what I have just indicated to 20 you. I have reviewed the order of witnesses in the list 21 that we have and we had spoken last week amongst 22 ourselves about perhaps cancelling next week, which 23 seemed too much of a luxury and too much of a risk. 24 Having reviewed my list of witnesses, the decision 25 has been taken to cancel Tuesday of next week but the page 143 1 remaining days are still allocated for sittings. 2 Mr Foley is the next witness. 3 TERENCE FOLEY (sworn) 4 THE CHAIRMAN: Your full names please? 5 A. My name is Terence Foley. 6 THE CHAIRMAN: Thank you very much. Take a seat, Mr Foley. 7 Examined by MR MOYNIHAN 8 Q. Good afternoon, Mr Foley. 9 A. Good afternoon. 10 Q. I owe you an apology. I think you were here on Friday 11 as well so you have been a long time waiting. 12 If I begin to ask something, just to understand the 13 way in which a fingerprint officer would express the 14 experience he has had, your career started in 1983 as a 15 trainee fingerprint officer? 16 A. That's correct, yes. 17 Q. I picked up on some occasions the possibility that if 18 you are asked to quote a number of years' experience you 19 would begin from the day on which you started training 20 as opposed to the day on which you qualified. Which 21 would you tend to do yourself? 22 A. Experience, I would quote the day I actually started my 23 service, basically the day I started training. 24 Q. So if I look at you started training in 1983 and, 25 therefore, by the events I'm primarily concerned with in page 144 1 your case, 1997, you would be somewhere between 13 and 2 14 years experienced? 3 A. That's correct. 4 Q. However, you qualified in 1989. 5 A. Yes, that would be correct because as well as the five 6 years' service at that point there was a minimum age of 7 25 years of age as well. 8 Q. So by 1997 you were qualified but for eight years? 9 A. Yes, that would be correct, yes. 10 Q. But you would say your experience, counting your 11 trainee-ship, was something of a minimum of 13? 12 A. Yes. 13 Q. By the time of your involvement in the events we are 14 concerned with, you were a senior fingerprint officer? 15 A. That's correct, yes. 16 Q. And, as such, the head of a team of other officers? 17 A. That's correct, yes. 18 Q. How many people would have been in your team? 19 A. I believe it would probably be approximately five or six 20 in my team, including myself. 21 Q. As a senior fingerprint officer, what would your duties 22 entail? 23 A. My duties would entail the delegation of work, 24 availability for the team, sick leave, annual leave, the 25 processing of the case load and supervisors' meetings. page 145 1 Q. Supervising what, sorry? 2 A. Supervisors' meetings -- sorry -- attending team 3 leaders' meetings and anything else, basically, that 4 fell into the remit of a team leader. 5 Q. Was there a rank above senior fingerprint officer at 6 that stage? 7 A. At that stage there was Assistant Principal Fingerprint 8 Officers, at that time. 9 Q. Among the individuals we have involved in this case do 10 we have some Assistant Principal Fingerprint Officers? 11 A. Involved in this case you would have Mr Hugh Macpherson, 12 Mr Charles Stuart. I believe that's the two. 13 Q. If I take them as examples, would they have teams of 14 their own or would they tend to be supervising a number 15 of teams? 16 A. If I recall correctly at that time there was, I believe, 17 maybe five teams, five geographical teams, each 18 Assistant Principal Fingerprint Officer was responsible 19 for up to two teams. They were the likes of my line 20 manager above me, they were overseers for both teams. 21 Q. In addition to management responsibility you were still 22 doing, on a day-to-day basis, fingerprint comparison 23 work? 24 A. Yes, that's correct. 25 Q. And still appearing in court on a regular basis at that page 146 1 stage? 2 A. At that stage, yes. 3 Q. If I move to a different topic, do you have your witness 4 statement? 5 A. Yes, I do. 6 Q. Is this the statement you have had a chance to read 7 yourself? 8 A. Yes, I have, yes. 9 Q. And you signed it? 10 A. Yes, I have. 11 Q. Are you content that it's an accurate record of the 12 evidence? 13 A. Yes. 14 Q. If we will go through it and if there are matters that 15 are not correct or not properly expressed, then please 16 indicate because I am more interested in your correct 17 evidence than holding you to a prior statement. 18 A. Okay. 19 Q. If I could ask you please to look at paragraph 6 and 20 what I'm interested in is the appropriate order in which 21 you would carry out your work. 22 Now, we start with the simplest, if a mark, a crime 23 scene mark, contained insufficient detail for comparison 24 purposes you would eliminate that, exclude it? 25 A. Exclude it, yes. page 147 1 Q. Sorry, eliminate is the worst of all words to have used. 2 You would exclude it as being insufficient for 3 comparison? 4 A. Yes, that's correct. 5 Q. Let's leave those excluded and let's look at a mark that 6 you have determined has sufficient minutiae or 7 characteristics -- which word d you prefer, minutiae or 8 characteristics? 9 A. Well, probably characteristics but overall it's the 10 level of detail, you know, available in the mark. 11 Q. I'm happy to use any of these three words: minutiae, 12 characteristics or detail. 13 A. "Detail", I would prefer to use "detail". 14 Q. That's fine. A fingerprint that's got enough detail for 15 comparison purposes, dealing with that now. You explain 16 in your statement at paragraph 6, the last four lines, 17 an order of proceeding, beginning halfway into that 18 line: 19 "The procedure was then to assess ..." 20 Do you have that? It's page 3. 21 A. Page 3, sorry, yes. 22 Q. The last four lines, halfway into the fourth last line: 23 "The procedure was then to assess ..." 24 A. Yes, I see that, yes. 25 Q. "The procedure was then to assess the mark for quality", page 148 1 and that's what we've covered. 2 A. Yes. 3 Q. It may have insufficient detail for comparison. 4 You then say: 5 "Elimination comparison, suspect comparison, AFR 6 search and if it still outstanding after that process 7 consider the mark for manual search of the fingerprint 8 collections of regional offenders." 9 Is that the order in which you would proceed or 10 would you proceed in a different order? 11 A. No, that would generally be the order that you would 12 proceed with the case. 13 Q. What I'm interested in is that when you say generally 14 the order in which you proceed, might there be a 15 different order in which you would proceed? 16 A. It possibly could be if a case was an urgent nature, 17 required an urgent comparison against a suspect, you 18 would go to the suspect. Then obviously that would 19 probably be the priority based on the request from the 20 SIO involved in the case. If there was no suspects or 21 elims (eliminations) with the case they may look for an 22 urgent result on a particular mark then that step would 23 be to go down to EFR search. It's just a case of doing 24 it to the request of the SIO, but with a normal 25 procedure that would be the framework of the workload. page 149 1 Q. Leave aside for the moment the question of an urgent 2 request. In an ordinary case, let's assume for the sake 3 of argument in a case such as this that a murder is 4 committed in a house, there are a number of persons 5 requiring possible elimination. 6 A. Yes. 7 Q. If I may use a pejorative term, innocent third parties 8 requiring elimination. You also have a list of 9 potential suspects. 10 Are you indicating that with a mark you would 11 generally proceed through all the eliminations, that's 12 the thought to be innocent third parties, before you 13 would compare against any of the suspects? 14 A. Generally with a, what we call, special case is what we 15 are referring to here, a murder or an attempt murder, 16 there is communication with the investigation team, with 17 the SIO. So the work we carry out is primarily based on 18 what they prioritise as objects recovered or marks 19 recovered from a certain area and who may be relevant or 20 who they want to eliminate, who they want to have 21 compared against that particular mark, then that 22 basically we would base our process, our work process, 23 the order of work, basically, through their instruction. 24 If there was no instruction form from them, then the 25 first step would obviously be eliminations because they page 150 1 would have the more likelihood -- the mark would be more 2 likely to be theirs than anyone else's. 3 Q. You used the term special and Mr Padden before you did 4 and I overlooked asking him what he meant by special. 5 Special plainly includes, as you have said, more serious 6 crimes, murder, attempted murder. 7 Is special broader than simply cases that would go 8 to the High Court? 9 A. Special would more likely be cases that would go to 10 either a Sheriff and jury or to the High Court, yes. 11 Q. Is the other category volume crime or are there other 12 categories apart from special and volume? 13 A. There are other categories. There's volume crime, which 14 is car theft, theft of motor vehicle, low key crime, 15 plus possibly a slightly an in between, between volume 16 crime and special, which could be maybe armed robbery 17 but not to such a level that it was deemed that serious. 18 Q. Not a solemn case? 19 A. Yes. Well, possibly it could, based on how the Fiscal 20 would wish to proceed. It could possibly be solemn as 21 well. 22 Q. Let us then come back because we are dealing here with a 23 special case, in a sense an ultra special case; we're 24 dealing with a murder. If I put a word in your mouth 25 that you may have been reaching for earlier, the Senior page 151 1 Investigating Officer may prioritise your work; he may 2 tell you he wishes you to proceed in a particular order 3 when considering a particular mark? 4 A. I would say that would be true, yes, because, as I say, 5 he wouldn't want us wasting our resources on comparing 6 marks that weren't particularly relevant to his inquiry 7 or her inquiry, whatever it may be. 8 Q. In paragraph 6 you happen to mention the form 13B. 9 If I could ask please if that be brought up on 10 screen, DB0251. 11 This is, we see in the bottom left-hand corner, 12 a form 13B? 13 A. Yes, that's correct. 14 Q. Just take the time to familiarise yourself. You may 15 have seen this particular one when you were being asked 16 to give your statement. Do you recognise it? 17 A. I do recognise it obviously from being here as well, 18 obviously, I recognise it. 19 Q. My recollection of the whole series of form 13Bs that 20 would accompany the various batches of prints is that 21 this one is, in fact, unique in that it contains what at 22 face value is either an instruction or at least a 23 guidance to fingerprint officers and it's in the words 24 "ident required for deceased". 25 First of all, is such a phrase an unusual thing to page 152 1 find on a 13B? 2 A. For this particular one I would probably say that the 3 choice of words could have been -- sorry, the choice of 4 words could have been better but I believe this form 13B 5 relates to QI2 which, I think, possibly, if I'm right in 6 saying, relates to the biscuit tin. Is that correct? 7 Q. That is correct. 8 A. I believe what the SOCO or the Scene of Crime Officer is 9 trying to portray here is that if a mark was identified 10 or eliminated against the deceased then it would have 11 particular relevance to the inquiry because it was 12 recovered from where it was recovered. 13 Q. First of all, if I just confirm your understanding: 14 because this relates to a series of marks, QB2 to QL2, 15 we're looking at some marks that were discovered on the 16 biscuit tin, the Marks & Spencer's biscuit tin, in 17 Mr Asbury's house? 18 A. Yes. 19 Q. Is that consistent with your understanding? 20 A. Yes, I'm just looking at the references on the form 13. 21 That's consistent, yes. 22 Q. Without wondering just now whether the form of words 23 could have been better chosen, is it unusual to find on 24 a form 13B any language that would indicate to you as a 25 fingerprint officer or one of your colleagues a page 153 1 particularly narrow focus for the investigation of the 2 fingerprints? 3 A. Over my years of experience, I would probably say, as I 4 say, the choice of wording I would correct on it. I 5 don't think that's appropriate. I would say, yes, we 6 have received form 13s with maybe matters of relevance 7 that the SOCOs have added on the instruction of the SIO. 8 Q. Again, without worrying about the precise interpretation 9 of "ident required" for the moment, what broad focus 10 would you take from such a form having been received in 11 respect of the tin? 12 A. All I would take from that is the first point of 13 comparison. That is all I would take from that. 14 Basically, the first person to be compared against those 15 marks would be the deceased. It would have no bearing 16 on me or no -- no bearing on me what conclusion I would 17 come to, basically. It was just maybe a starting point 18 on the comparison. 19 Q. If we look at a form please which is CO1444, and look 20 please at page number 2, here is an elimination page. 21 I've not brought up the one that relates to QI2 but just 22 for sake of argument here, we see on this particular 23 form it's marked, literally marked in handwriting, order 24 in which to proceed, Marion Ross, the deceased, is 25 number one, a natural enough approach to take in a case, page 154 1 correct? 2 A. Correct. 3 Q. With then other individuals listed and this is the sheet 4 of eliminations. 5 A. Yes. 6 Q. Now look at the form 13B, what is the focus on Marion 7 Ross as the number one person to be eliminated actually 8 adding to what would have been on a normal elimination 9 sheet? 10 A. As I say, the only reason I can think for that would be 11 because of where the item was recovered from. It wasn't 12 recovered from the actual locus. It was recovered 13 outwith the locus. As I say, if anything was identified 14 or eliminated to the deceased, then it would have quite 15 a bit of relevance -- well, that's up to the SIO to 16 decide, obviously, but it would have some relevance to 17 the inquiry possibly. 18 Q. The point I am trying to make to you is, as I'm looking 19 at this list just now, you have already been told that 20 Marion Ross is the number one person to be eliminated in 21 eliminations. So what's this form actually adding to 22 what would have been the norm? 23 A. Other than what I've just actually said there just now, 24 it doesn't really add anything. I noticed in the form 25 13 David Asbury name's on it as well, so possibly if page 155 1 that form 13 had come in without any indication to the 2 deceased, then the first -- I would say the first point 3 of comparison would be against David Asbury. I don't 4 know if that was what was done in the case. I'm not 5 aware. 6 But if there was no reference to the deceased, then 7 it perhaps would not have been the number one priority 8 against these marks. 9 Q. If we bring up DB0251 again, so far as this is 10 concerned, we have marked that David Asbury is a suspect 11 in the case? 12 A. According to that form 13 at that point, yes. 13 Q. If I understand the normal process, barring any other 14 instruction from the Senior Investigating Officer, you 15 would expect the office procedure to be to work through 16 all the eliminations before turning to the suspects. 17 A. Again, unless there was instruction from the SIO and I 18 can only -- as I say, I didn't work on the case but I 19 would assume that there would have been instruction from 20 the SIO to compare the deceased first. But, as I say, 21 on this one that would have came -- that form 13 would 22 have arrived into the office along with the relevant 23 marks that are listed and along with an MI sheet (a 24 major incident sheet) listing where the marks were 25 recovered from and possibly that's why this has been page 156 1 added because the biscuit tin was not recovered from the 2 actual locus. 3 Q. Perhaps if I can be quite clear in what I understand -- 4 this is why I am interested in what the normal procedure 5 would be -- I am not aware of any documentation to show 6 that the mark QI2, which you've correctly inferred this 7 relates to or includes the mark QI2 was compared against 8 anyone other than two individuals, that's Marion Ross, 9 the deceased, and David Asbury, the suspect. 10 A. Sorry, I can't comment on that. I didn't work on the 11 case. I'm sorry, I don't know. 12 THE CHAIRMAN: Could I just ask one thing whilst we're on 13 this point. Earlier in your answers you said that you 14 would be told who they want compared against 15 a particular mark. 16 A. Sorry? 17 THE CHAIRMAN: That was an answer you gave earlier on the 18 instructions. 19 A. From the SIO? 20 THE CHAIRMAN: Yes. They would tell you who they want 21 compared against a particular mark. 22 A. Yes, possibly they would prioritise who they want 23 compared first. 24 THE CHAIRMAN: So it wouldn't be unusual, maybe not written 25 in this form, for your attention to be drawn to the page 157 1 person they want compared. That's consistent with what 2 you said earlier? 3 A. Yes. I would say so, yes, sir. 4 THE CHAIRMAN: Thank you. 5 MR MOYNIHAN: While we still have that phraseology in mind, 6 "ident required for deceased", I want to focus on 7 "ident". 8 Even in some of what you have said already is 9 there's a distinction between an ident (an 10 identification) and an elim (or elimination)? 11 A. Basically, my own -- to eliminate a mark from an inquiry 12 you were still assigning ownership of that mark. You 13 have found who that mark was made by. So basically an 14 elimination is an identification of a mark. It's just 15 the terminology, a different terminology that's used, 16 the main difference being that for presentation at court 17 for an identification the ideal requirement was 16 18 characteristics in sequence and agreement. 19 Q. We'll try and be short but please don't necessarily 20 agree unless you are absolutely confident about this 21 yourself. If I use a collective term a "match", 22 matching two individuals, a match could either be an 23 elimination or it could be an identification? 24 A. Yes. 25 Q. An identification as a match is a term you would use for page 158 1 a match that corresponds to the full court standard then 2 of 16 points in agreement and no unexplained 3 differences? 4 A. An identification is -- I would actually -- if I'm 5 comparing a mark, I would reach the conclusion of 6 identification before I got to 16. So I have to 7 emphasise that identification is not a point counting 8 exercise; it's a comparison of the detail compared from 9 one against the other. 10 Q. I appreciate that and perhaps if I roll it on you will 11 see why I am drawing a distinction. 12 There will be a minimum number of details that must 13 be in agreement between the mark and the known print 14 before you would take any view on a match; would that be 15 fair? 16 A. A minimum ... it's a difficult one to answer that 17 actually because each mark is unique in its own detail 18 contained in it. You could find a small area of a mark 19 on an article or an area which contains maybe unique 20 characteristics and a convergence together which is 21 unusual, but whereas you could get a large area for a 22 mark which doesn't contain which has maybe more common 23 characteristics or detail contained in it. 24 So for me to put an actual figure on it I would 25 probably say ... I don't like to commit myself to page 159 1 a figure but if I could find possibly around 8, 9, 10 2 characteristics in sequence and agreement with no 3 unexplainable disagreements, then I would possibly be 4 happy -- I would be happy to assign that as an ident 5 based on uniqueness of the individual mark I'm 6 comparing, obviously. 7 Q. You have mentioned the possibility, the lower end of 8 a range of 8 to 10. If I can show you something that's 9 attributed to you -- I don't know whether it necessarily 10 is your view -- if you can have before you please 11 CO1145, page 3. 12 Go back to page 1, I will show you what it actually 13 is. This is a statement -- you may not have seen this 14 before -- taken from you by Mr Mackay's team in 2000. 15 Have you seen this before? 16 A. Yes. Yes, I have. 17 Q. If you could turn please to page 3 now, it's the second 18 full paragraph on that page. It says: 19 "For the purposes of elimination in 1997 I would 20 normally look for at least 10 points of comparison, 21 although it depends on the quality of the mark. Since 22 then and in light of what has happened I would say I now 23 have a tendency to satisfy myself up to a higher degree, 24 usually full identification of 16 points." 25 Do you see that? page 160 1 A. Yes. 2 Q. Do you have any comment on that as being a 3 representation of your own view in 1997 that you would 4 be looking for something in the order of ten points as a 5 minimum? 6 A. Obviously, I've said there depending on the actual 7 quality and the content of the mark. That would, I 8 would say, was obviously in relation to what was going 9 on within the department at the time. 10 Q. Again, forgive me, it's a bit like your colleague, 11 Mr Padden, I'll concentrate most of my questions on a 12 historical position just understanding what practice was 13 in 1997. I will give you an opportunity later to tell 14 us if there have been significant changes in practice. 15 Just looking at matters in 1997, is it fairer to 16 understand, as you have said to me a few moments ago, 17 that an elimination might be at 8 to 10 points or is it 18 fairer to say that 10 would tend to be the minimum 19 number of details in common you would require? 20 A. As I said earlier on, if I was asked to put a figure on 21 it I would possibly go for the 10 points. As I say, 22 every time I do a comparison, each mark is unique on its 23 own so I could ... 24 Q. In fairness to you, I understand the position is this: 25 if you have found that number that satisfies you, at page 161 1 that point you are 100 per cent certain of a unique 2 identification of a mark? 3 A. Once you reach that point that is when you are happy to 4 sign it off as ownership, as identification. 5 Q. By ownership you mean that you are 100 per cent 6 satisfied that the mark can be uniquely attributed to 7 the known individual? 8 A. Yes. 9 Q. That might, based on your experience and practice back 10 in 1997, be at a point when there are 10 points in 11 common? 12 A. Yes. 13 Q. However, for court purposes, the lawyers would require a 14 higher threshold, that is they would require a minimum 15 of 16 points in agreement and no points of disagreement? 16 A. For the normal case, yes, that would be the case. I 17 think my colleague, Mr Padden, touched on there were 18 other processes and scenarios that were in operation at 19 the time as well. 20 Q. There might be a dire and crucial situation? 21 A. There was dire and crucial, there was strong suspicions, 22 there was ten and ten. I could explain each of them if 23 you wish me to. 24 Q. It's okay. Again, my reason for looking at terminology 25 is that same paragraph we highlighted on the screen. It page 162 1 tends to be, perhaps to avoid confusion, though you 2 yourself are 100 per cent certain of a unique 3 identification at 10 points or so, you're conscious of 4 the fact that the court normally requires 16. So the 5 way the terminology seems to run is that something less 6 than 16 is described as an elimination; whereas 7 something that attains the court standard of 16 is 8 described as an identification. 9 Am I reading too much into this? 10 A. I'm really unsure. As I say, from my own point of view 11 an elimination is an identification but I realise you're 12 talking for court purposes. Is that what the question 13 is? 14 Q. Perhaps if I am even more specific, look at DB0251. 15 What I was speculating is whether, if you take the 16 deceased, normally with the deceased you would be 17 eliminating the deceased. That would be the normal 18 process, to eliminate? 19 A. Yes. 20 Q. However, because of the suspicious location in which the 21 tin was found, it might be that what someone was saying 22 to you is, "We don't want you simply to eliminate the 23 deceased. We want you, in fact, to see if you can 24 attain the court standard of identification in relation 25 to this particular mark". page 163 1 Is that possible? 2 A. Yes. 3 Q. If I move to another chapter now and it's a question of 4 the use of the comparator screen, which is still here to 5 remind us what we are all talking about. But if I just 6 come straight to the point in relation to this, you have 7 in a number of paragraphs in your statement referred to 8 the possibility that the second, third and fourth person 9 involved with the mark -- I think you called them the 10 second, third and fourth checker -- might begin work on 11 the comparator screen. Is that fair? 12 A. That's possible, yes. 13 Q. I am left just a little bit of doubt from reading in 14 particular it is paragraph 18 of your statement -- if 15 you have a look please at paragraph 18 -- you say: 16 "I believe that this practice [we will come back to 17 that later] was shared by mt colleagues and it was the 18 way in which we were trained. Any other way of checking 19 would be, in my view, unprofessional." 20 Then you say if you had done a third or fourth check 21 from the comparator you would look at that mark again 22 when the case paperwork came around after the photograph 23 had been initialled to confirm that it was the mark you 24 had seen on the comparator and to satisfy yourself that 25 you can eliminate or identify the mark from what you see page 164 1 under the glass. 2 The impression I got from that is that you were 3 indicating that a third or fourth checker might, in 4 fact, reach an opinion only by working on the comparator 5 screen. Is that possible? 6 A. No, I don't think that was what I was trying to put 7 across there, actually. What I was trying to put across 8 there is there could be various cases that you've looked 9 at under the comparator and your initial could have been 10 assigned to numerous photographs. So when you get the 11 paperwork back round to finalise the case, to check the 12 case on hard copy, you would obviously check, first of 13 all, to make sure that it was one that you saw earlier 14 and to satisfy yourself that it was the mark that you 15 saw on screen and identified. 16 Q. You see, I think if we go back then, please. What I am 17 interested in, quite simply, would it be the case that 18 sometimes a second, third or fourth checker might 19 examine the mark only on the comparator screen? 20 A. It could be possible, yes. 21 Q. I'll just tease that out because that's what I inferred 22 from some of the other points you said. 23 If you look at paragraph 11 of your statement, this is 24 at the foot of page 4, you're talking about the 25 comparator screen. The second sentence you would tend page 165 1 to put the mark in question to one side following your 2 binocular comparison before putting it on the 3 comparator. "I would not use it before binocular 4 comparison." 5 So if you are the first person checking a mark you 6 would look at it under class first before the comparator 7 screen? 8 A. Yes. 9 Q. However, what you then say is but there were times, if 10 you were the second, third or a fourth checker of a mark 11 where the first time you would see it could be on the 12 comparator and you're happy enough with that? 13 A. Yes. 14 Q. It was then the next paragraph that led me to infer what 15 we've now agreed because what you say in the next 16 paragraph is where you were the second, third or fourth 17 checker you might have been asked to have a look at a 18 mark on a comparator by a colleague as your first sight 19 of that mark. You would then wipe it clean to start 20 afresh, mark your own findings and satisfy yourself that 21 you could find 16 characteristics in sequence and 22 agreement. 23 A. Yes. 24 Q. That therefore inferred to me that a second, third and 25 fourth checker might have only examined it on the page 166 1 comparator screen? 2 A. Yes, that's correct, yes. 3 Q. The other point I wanted to elaborate from that is you 4 have said that you might be invited to look at it by a 5 colleague. Your first sight of it would be on the 6 comparator screen. You would then wipe the screen and 7 start afresh. 8 Does that then leave the possibility that -- let's 9 say you were the second checker -- that you would 10 arrive, the first person who has carried out the first 11 comparison is saying to you, in effect, "I have compared 12 this, would you please give me your opinion". 13 Is that the case? 14 A. Yes. As I say, you would go to the screen, take off 15 what's -- if they've left it on the comparator, if they 16 left their markings on it, you would take theirs off and 17 start afresh and mark up your own. 18 Q. I think there's a point intermediate in relation to 19 that. Let's say I'm the first comparison person. I 20 would say to you, "Mr Foley, would you please give me 21 your opinion on this mark". I might say to you, "I've 22 identified this mark. Could you give me your opinion". 23 Would that happen in practice? 24 A. It could happen, yes. It's a form of consultation 25 basically between the two experts. page 167 1 Q. Secondly, I might even say, "I have marked my 16 points. 2 Look at them on the screen". 3 A. Mm-hm. 4 Q. Yes? 5 A. Yes. 6 Q. You would be able to see the 16 points that I had marked 7 on the screen, yes? 8 A. Yes. 9 Q. Then you would wipe the screen and you would start 10 again? 11 A. Correct. 12 Q. You used in paragraph 13 a phrase that I'm interested in 13 understanding. It begins normally you could find your 14 colleagues' findings marked on the screen in red pen to 15 see what they could see but then you wipe clean to start 16 afresh and satisfy yourself that you could find 16 17 characteristics. It's this sentence that I'm interested 18 in: 19 "It was a form of discussion between the experts." 20 What do you mean by that? 21 A. It's basically a demonstration, really, on the 22 comparator. If someone has signed or marked up a mark 23 on the comparator, they have obviously signed for their 24 conclusions so they're asking you to go over and have a 25 look and then to see if you agree and then basically page 168 1 what you must do, obviously, is wipe it clean and start 2 afresh to make sure and satisfy yourself that what they 3 have marked on the screen ... or you could mark up 4 different characteristics. It isn't necessarily that 5 you reach the same 16 in sequence and agreement. There 6 could be others; there could be less. 7 Q. Do you indicate by this phrase that either literally or 8 in some figurative sense there is a discussion between 9 the experts about the presence of 16 points in agreement 10 in relation to the mark on the comparator screen? 11 A. It could be verbal discussion or it could be 12 illustrative, basically. 13 Q. Why I'm asking about is, as I understand the theory back 14 then and the practice, it was built on the view that an 15 identification would go to court only if four officers 16 independently arrived at the same conclusion it was a 17 minimum of 16 points in agreement and no points in 18 disagreement. 19 Would that be the way that it was being understood 20 at the time, that is the way it should have been 21 happened -- 22 A. That was a normal case, I would say, taking aside the 23 other scenarios that we discussed -- 24 Q. The diary and whatever. 25 A. -- that were put in earlier. page 169 1 Q. So you are wanting a number of officers -- we understand 2 at the time the practice was four? 3 A. Four at the time, yes. 4 Q. -- independently arriving at the same conclusion? 5 A. Mm-hm. 6 Q. And yet what you are presenting is that there could be a 7 discussion between at least two and maybe more of the 8 officers in relation to their opinion on the mark? 9 A. There could be a discussion, yes. It's quite easy there 10 could be but, at the end of the day, if, obviously, 11 being an expert, you would reach the conclusion based on 12 what -- you would take into account what other the 13 expert is possibly saying to you but that would not have 14 an effect on your final conclusion. You would look at 15 the mark independently, on the quality that's contained 16 in the mark, the level of detail contained in the mark, 17 and satisfy yourself. You would never put your name to 18 an identification until you were 100 per cent satisfied 19 that that mark belonged to that fingerprint. 20 Q. If I move to a different topic, the question of signing 21 of photographs, paragraph 14 of your statement, page 5, 22 was there at that time in 1997 a practice of recording 23 the officers involved in an identification on the 24 photograph itself? 25 A. I believe there was, yes. page 170 1 Q. Did you regard that as a common practice at that time? 2 A. I recall that as being a common practice, yes. 3 Q. Sorry? 4 A. I recall that as being a common practice, yes. 5 Q. Again, correct me if I am wrong: my understanding is 6 that if four officers have viewed a matter on a 7 comparator screen they would mark their initials. I 8 think you were present when your colleague Mr Padden 9 told us about that. 10 Do you agree with what he said about the marking of 11 initials on the screen? 12 A. You would put your initial on the top right-hand corner 13 or left-hand, wherever you could fit it, you would put 14 it on the screen as you agreeing to that identification. 15 Q. Then would it be the case that at some point after four 16 people have agreed that someone would then transpose 17 what was on the screen on to the photograph to you 18 record that? 19 A. That's correct. 20 Q. Equally, the other possibility is that people would 21 initial it as their agreeing the identification. Was it 22 not done that way, no? 23 A. If the mark was left on the screen it would normally be 24 a case that the process at the time would probably be a 25 case of just initialling the screen and then at the end page 171 1 of it whoever was last to take off the screen or they 2 would tell whoever was the first officer to look at it, 3 that that's that one finished with. They would then go 4 and mark, transfer the details on to the back of the 5 photograph. 6 Q. As you say, by signing either the screen or the 7 photograph or the associated paperwork the officer is, 8 as you say, signing up to or contracting to the 9 identification? 10 A. Well, the actual -- basically, yes, but the actual -- I 11 think what I've said in my statement, the actual signing 12 up or contracting to the identification is when you sign 13 the envelope, the case envelope, at the end. The reason 14 for putting the initials, the person's initials, "I've 15 seen it on the screen", on the back of the photograph 16 was normally so that that identification would then go 17 back for the paper-trail, for the signing off, would 18 then go back to the four individuals who saw it on the 19 screen. 20 Q. Again, if I be relatively short with you and we can take 21 it in more detail if it assists, we understand that XF, 22 the one we have been talking about today, is marked up 23 by four officers on 21st January. 24 A. Yes. 25 Q. Actually phoned out of the office that day to the police page 172 1 and the following day an individual is detained and 2 arrested and subsequently appears in court, on 21st 3 January he appears in court. The case envelope doesn't 4 have actually come to be signed apparently until the 5 middle of March. 6 Would that again accord with a timescale? 7 A. That would be fine, considering the volume in that case, 8 the envelope is normally signed off at the end. 9 Paperwork was completed at the end of the process of 10 comparisons. 11 Q. I think you may have heard your colleague, Mr Padden, is 12 one of four whose initials are on XF but he is never 13 asked to sign and does not sign the case envelope. So 14 those who have actually been responsible for initialling 15 identifications on which someone may have been detained 16 may, in fact, not be those who ultimately, to use your 17 phrase, contract up to the identification. Is that 18 correct? 19 A. On the paperwork, yes, that's correct. The idea, like 20 the one that Mr Padden was involved in, could have been 21 that he was the one available or one of experts 22 available in the office at the time and the SIO required 23 an urgent reply or result on the comparison of that 24 person against that mark. 25 Q. Do you agree with Mr Padden that at that time there was page 173 1 no practice of documenting the number of details an 2 individual has observed in the mark? 3 A. What, do you mean as in the pointing? 4 Q. Yes. 5 A. I would agree with that, yes. 6 Q. So there was no practice then of recording it? 7 A. There was no practice of putting down how many 8 characteristics you had found in sequence and agreement, 9 no. 10 Q. What I want to do is turn to the question of the blind 11 test or blind comparison that was carried out in 12 relation to Y7. 13 You yourself had involvement in it at the time? 14 A. That's correct. 15 Q. It has come to be called by those who have been involved 16 in this matter a blind test or a blind comparison. At 17 the time when you were first involved, what was the 18 character of this exercise, as you understood it? 19 A. To tell you the truth, I just recall being approached by 20 Mr Dunbar to have a look at a mark on a comparator and 21 basically that's what I did. I didn't know it was part 22 of a -- in fact, I don't even think the term "blind 23 test" was used there. I think that was assigned at some 24 inquiry down the line, I believe, but I was just asked 25 to have a look at the mark on a comparator and asked if page 174 1 I could eliminate one against the other. 2 Q. I'm grateful to you because the first thing I did want 3 to the establish is that the word "blind test" or "blind 4 comparison" is something that had come to be attached to 5 it later. 6 A. Yes. 7 Q. It was given no particular title when you were asked to 8 participate? 9 A. None whatsoever, no, that I know of. 10 Q. However, again, if I may -- and forgive me for being 11 pedantic -- the word you used is Mr Dunbar asked you if 12 you could eliminate? 13 A. Yes. 14 Q. Did that signify to you that you might be able to give 15 him an opinion to a standard less than 16 points, 16 16 details? 17 A. Basically, that's what I took from it. He wasn't 18 looking for a full 16 on it. He just wanted me to see 19 if I was happy that one was made by the other. 20 Q. You have indicated in paragraph 27 that you believe that 21 you found 10 characteristics in sequence and agreement? 22 A. I believe so, yes. 23 Q. And that's your best recollection of it now? 24 A. Yes. 25 Q. It's something that you have said on a number of other page 175 1 occasions. Indeed, the statement I showed you to 2 Mr Mackay says exactly the same; you found 10. That's 3 why I was asking you earlier on about your own -- 4 A. If I could just possibly said on that point: I think 5 Mr Mackay's reference to it also says that I failed to 6 identify the mark. 7 Q. Well, if we bring up then just in case CO1145 and go to 8 page 2? 9 A. Sorry, I think I've got a cross-reference here. I 10 thought you were actually referring to the Mackay 11 Report. 12 Q. I apologise. Just for the avoidance of any doubt, where 13 I picked it up from is the last paragraph on the page 14 I've just brought up for you. Let's just make sure 15 whether there is any difficulty about the accuracy of 16 what is here. A number other witnesses are not content 17 their statement is accurate so let's just look at it 18 very carefully. 19 You say you looked at the mark for about five 20 minutes? 21 A. I think that's, first of all, that's the first -- 22 Q. Sorry? 23 A. That's -- I would say that's not correct either. 24 Q. You have said to us 20 minutes. 25 A. Yes, that would be more accurate. page 176 1 Q. "I marked up somewhere around 10 points of comparison." 2 You are content with that? 3 A. Yes. 4 Q. "I thought the mark showed a sign of movement or 5 distortion but I concluded that I felt there was 6 sufficient to eliminate it against the impression." 7 A. Correct. 8 Q. Again, this is the reason for my pedantry: at that level 9 of 10 points and an elimination, you yourself 10 professionally are 100 per cent certain that this is a 11 unique identification? 12 A. At that point of comparing that mark that was where I 13 stopped. I didn't take it any further because I was 14 happy it was made by that person. 15 Q. But if you had been asked subsequently to take that to 16 court you would have required to go further. You would 17 have required to go back and to see whether or not you 18 could achieve the 16 points. Is that correct? 19 A. If I was asked to take it to court -- well, as I say 20 when I did that, when I did the so-called blind 21 comparison, I obviously didn't know what case or what 22 mark it referred to. If you're talking in a general 23 sense here, if I was asked by Mr Dunbar to look at that 24 and say, "Would you be happy to find 16 on that", then I 25 would probably have to have asked, I'll spend more time page 177 1 on it to look for 16 but I was happy with identification 2 on 10. 3 Q. If I may -- again I'm using this to avoid confusion -- 4 you were happy to eliminate, as Mr Dunbar had asked you 5 to eliminate based on ten? 6 A. Yes. 7 Q. But if for one reason or another you had been asked or 8 you had been required to go to court and give evidence, 9 you would have had to restudy that mark to determine 10 whether or not you could find 16 points? 11 A. I would have tried to get 16 on it, obviously, for the 12 standard required to take it to court, but I would also 13 have been happy to take it to court with the 10 because 14 I was satisfied that that was made by that thumb print. 15 I would have been happy to take it to court at that 16 stage as well. 17 MR MOYNIHAN: Sir, I've not got much longer to go but this 18 is perhaps as -- 19 THE CHAIRMAN: Yes. 20 MR MOYNIHAN: I can continue or stop as you -- 21 THE CHAIRMAN: Continue for a moment or two. 22 MR MOYNIHAN: I am obliged, sir. 23 What I am interested in is you did, at a later 24 stage, come to do a charting for civil court purposes; 25 is that correct? page 178 1 A. That's correct. 2 Q. If we look at SG0716, just bring up that first page. 3 First of all, is that your signature on the 4 document, Y7? 5 A. It is, yes. 6 Q. We have a date, 2nd February 2006. 7 A. That's my writing as well, yes. 8 Q. If we look at the second page ... maybe it is the third 9 in that case, and the fourth. Maybe we could try the 10 third and fourth together. 11 Is that a comparison that you actually ultimately 12 carried out and you did find 16 points in agreement? 13 A. That's correct. 14 Q. What I am interested in is that is dated 15 2nd February 2006. 16 Was that something that you did just shortly before 17 the date of 2nd February 2006? 18 A. It was, yes. That was the day I did it, actually. 19 Q. Between the date of the blind test which is 20 February 1997 and this now nine years later, 21 February 2006, had you looked at Y7? 22 A. No, I hadn't, no. 23 Q. So if you had been asked by someone looking at it quite 24 carefully at some point, for example in 2005, you would 25 have required to say that you have seen enough to page 179 1 eliminate the mark with 10 points but you could not have 2 satisfied the court standard of 16 points without 3 looking at the mark again? 4 A. Sorry, could you repeat that, please? 5 Q. I'll try, even though it's on LiveNote which I haven't 6 brought up. 7 If you have been asked in 2005 about Y7, a 8 technically correct position would have been that you 9 had identified 10 points which were sufficient to 10 eliminate the mark but you could not, on that basis, 11 have satisfied the court standard of 16 points? 12 A. I don't know because I never looked at it in 2005, 13 obviously. 14 Q. The reason for asking about 2005 is if you could have a 15 look, please, at a letter which is SG0557. This is a 16 letter written to the Lord President and Lord Justice 17 General, Lord Cullen. It is dated 14th December 2005. 18 Do you have recollection of this letter? 19 A. Yes, I do yes. 20 Q. If we go to the PDF page 5 do we see that your signature 21 appears on the page? 22 A. Yes. 23 Q. You say: 24 "We [that is you, Mr Bruce and Mr Geddes] being 25 fingerprint experts from the Scottish Criminal Record page 180 1 Office can also confirm that during the time that the 2 above cases were being worked on within the Fingerprint 3 Bureau we also carried out a comparison in relation to 4 mark Y7 and independently reached the conclusion that 5 the mark Y7 and the left thumb print of the donor 6 fingerprint form (Shirley McKie) were made by one and 7 the same person." 8 A. Correct. 9 Q. And that's correct. My reason for 2005 is simply the 10 date of that letter to the Lord President. 11 Your position would be as at November 2005 that you 12 would have been able to eliminate Y7 on your opinion as 13 Shirley McKie, simply to exclude her as a suspect in a 14 case, but you would not have been able to give evidence 15 at her perjury trial that that was indeed her mark to 16 the court standard? 17 A. Well, that would be down -- if I was called to give 18 evidence at it. If I was asked to look at that mark 19 prior to the perjury trial knowing that it was Y7 20 against the left thumb print of Shirley McKie and I came 21 to the same conclusion as I did during the blind 22 comparison, ie I found 10 points in sequence and 23 agreement, I was happy to assign ownership of that mark, 24 then I would have been happy to speak to that in cour. 25 It would have been down to the Fiscal whether he was page 181 1 willing to call me or not that's obviously -- but I 2 would have been happy to say that that mark was made by 3 that individual. 4 Q. But surely you know that, bar some exception being made 5 by the Fiscal, that would need to be reasoned out and 6 justified to the Fiscal, you could not have testified at 7 the perjury trial to the court standard based on your 8 identification in 1997? 9 A. If I was asked in 1997 to find 16 points in sequence and 10 agreement ... is that what you're asking me, sorry? 11 Q. If I had asked you -- the McKie trial is in May 1999 -- 12 at the time of the Asbury case, Ms McKie is an 13 individual police officer who, if she had been in the 14 house, would have been regarded as an innocent person 15 who had a legitimate reason to be there as a police 16 officer, she's, therefore, being eliminated and Y7 has 17 been eliminated as not that of a suspect, it's a police 18 officer -- understand? Is that correct? 19 A. Yes. 20 Q. And you could do that to a standard of 10, correct? 21 A. Correct. 22 Q. However, by May 1999 at the perjury trial it's no longer 23 a question of eliminating her an innocent person with 24 legitimate reason to be in the house, fingerprint 25 officers are now being asked to identify her print to page 182 1 the court standard of 16 points because the prosecution 2 is trying to prove that she was in that house without 3 legitimate reason to be there. 4 Do you understand the distinction? 5 A. I believe I understand what you're saying, yes, but what 6 I'm trying to answer is that, first of all, it was two 7 years later. That was the first thing. As I said at 8 the beginning when I was first in the chair I said to 9 eliminate you must identify because you're assigning 10 ownership of the mark. If I eliminated that to 10 I 11 wouldn't have said it was that person without me being 12 satisfied that it was that person. So if I had to, I 13 would have submitted a report to the Fiscal on that 14 basis. So then, as I say, if I eliminate or identify, 15 regarding how many points in sequence and agreement that 16 I find, if I am satisfied an unknown mark is identified 17 as a known person, then I will not assign my name to 18 that until I'm happy to speak to it in court. 19 Q. We may be just a crossed purposes. Let's be very clear: 20 as I understand it, the prosecution when it proceeded in 21 the perjury case proceeded on the basis that fingerprint 22 officers would testify that there were 16 points in 23 sequence and agreement between Y7 and Ms McKie. 24 I would understand your position to be quite simply 25 this: if I had asked you to step in, you would have had page 183 1 to say to me, "I can't step in based on what I did in 2 the blind test in 1997 when I only saw 10 points. I 3 would need to look at it again and determine whether or 4 not I could see 16 points". 5 A. Correct. 6 THE CHAIRMAN: I wonder -- 7 MR MOYNIHAN: That is as good a point as any, sir. I don't 8 have very much longer to go. 9 THE CHAIRMAN: If you would not mind returning again 10 tomorrow at 10.15. 11 A. Yes. 12 THE CHAIRMAN: Thank you. 13 (4.10 pm) 14 (Adjourned until 10.15 am the following morning) 15 16 17 18 19 20 21 22 23 24 25