page 1 1 Wednesday, 24th June 2009 2 (10.18 am) 3 TERENCE FOLEY (continued) 4 Examined by MR MOYNIHAN 5 Q. Good morning, Mr Foley. 6 A. Good morning. 7 Q. If you could return to your statement please and I am 8 going to take you to -- 9 A. Could I possibly ask a question? Would it be possible 10 for me to go back to a question you asked yesterday to 11 expand on it? 12 Q. Yes, please. 13 A. On my answer. 14 Q. First of all, if you tell me what the question was. 15 A. Yes. It refers to the question on page 71, line 3, of 16 the transcripts. The question was: 17 "And what you are presenting is that there could be 18 a discussion between at least two and maybe more of the 19 officers in relation to their opinion of the mark." 20 Obviously, my original answer, I will stick by that 21 but just to expand on it if I could, please, if you are 22 asked to look at a mark by another examiner on a screen 23 you would go to the screen and if the marks or the 24 characteristics had not been scored off your first step 25 would be to score them off, wipe them clean and then you page 2 1 would examine the mark yourself and reach a conclusion 2 independently. 3 If you found that there were -- you were happy there 4 was identification to the 16 standard then you would go 5 back to the other officer and say, "That's me, I've seen 6 that and I've initialled it", and then they would go on 7 to the next checker. 8 If you agreed to identification but couldn't find it 9 to the 16-point standard, at that point only after both 10 of you have agreed independently that it is an 11 identification, that is when a discussion would come 12 into effect after you both have confirmed independently 13 that there is identification. 14 Q. Again, if I understand it correctly and I will take it 15 at the easiest level you might, yourself, arrive at an 16 identification with a number of details as you are 17 prepared -- between 8 and 10. If you go above that 18 number so we're into a comfort zone and we use a number 19 that Mr Padden used for that area, 12 details you found 20 in common and no detail in disagreement, so with that 21 sort of number, 12, in common and no disagreement, I 22 would understand you professionally to be able to arrive 23 at a conclusion that there is indeed a unique 24 identification to the known print? 25 A. That's correct. page 3 1 Q. And you would arrive at that conclusion -- if you arrive 2 at it at all -- you would be arriving at the conclusion 3 on the basis of 100 per cent certainty? 4 A. Yes. 5 Q. If I would understand it, you don't really entertain the 6 possibility of speaking to an identification to any 7 lesser standard of certainty? 8 A. No. As I say, the other area where you could be 9 involved in a discussion is if you're involved in the 10 mentoring of a trainee fingerprint officer. You could 11 be mentoring someone who's learning the job, basically; 12 then you would possibly have occasion to guide them 13 through identifications there. 14 Q. Let's take it just on the easiest basis, we're not 15 talking about trainees, we're talking about fully 16 qualified fingerprint practitioners. We're talking 17 about you in 1997, you had 13 years of experience and 18 were a team leader. 19 If I understand you correctly, if you found 12 20 details in common, you would be 100 per cent certain as 21 to the unique identification of that mark to the known 22 individual but, as we discussed yesterday, you would not 23 be able to satisfy the standard set in the ordinary case 24 by courts because it was set to a standard of 16 25 characteristics or 16 details? page 4 1 A. Well, the 16-point standard; that would be correct, yes. 2 Q. If I understand you correctly, what you're indicating is 3 that you might talk to a colleague to ask him or discuss 4 with him how it might be possible to bridge the gap 5 between the 12 that you have observed and the 16 that's 6 required by the court standard. 7 A. That would be possible, yes. As I say, we're both in 8 agreement that that is that person's print so there 9 could be some particular part of detail that if I was 10 looking a12 perhaps I didn't see that he or she wanted 11 to show me on the comparator but it could still be that 12 I might not agree with it, might not want to include it 13 but they are free to have that discussion. 14 Q. Again, forgive me for the pedantry but you say that is 15 possible. 16 Is that the type of discussion that did take place 17 in 1997? 18 A. I have experiences, yes, of that taking place, yes. 19 Q. Not just you, was it something that did take place among 20 colleagues in the SCRO? 21 A. Yes, yes. 22 Q. Obviously, we have some evidence here that the 23 conversation might take place and the one who's on the 24 lower number might, in fact, not be persuaded to change. 25 That could happen? page 5 1 A. Yes. Yes, that could happen. 2 Q. But, equally, it could happen from time to time that the 3 one on the lower number is in fact persuaded or talked 4 up to the 16 points? 5 A. I would say persuaded is possibly really too strong a 6 word for it. They would sign for the 16 or agree to the 7 16 if they were happy that the 16 were there. 8 Q. Persuaded is fine in that case. 9 Where would that debate or the discussion take 10 place? Does it take place with the two officers at a 11 desk looking under linen glasses or does it take place 12 with two officers looking at the comparator machine? 13 A. It could be two officers looking at it discussing it at 14 the desk or, as you say, it could be the comparator 15 screen. It could also be there were occasions when they 16 requested photographic enlargements from the IB, as it's 17 known then, the Identification Bureau. Once we receive 18 photographic enlargements, we could analyse it or assess 19 it as well. 20 Q. So obviously we've looked at the comparator screen which 21 gives an enlargement and an ability has been indicated 22 to mark the screen. 23 A. Yes. 24 Q. The third alternative you have mentioned is that there 25 would be occasion where the Identification Bureau, who page 6 1 are your imaging resource, is asked to produce 2 photographic enlargements of the mark in the known 3 print? 4 A. Yes, that's correct. 5 Q. The individual who's on the higher number -- let's say 6 the individual who is on 16 points, would he mark on the 7 enlargements the 16 points he has personally observed? 8 A. Yes, he could but it would probably be a case there was 9 more than one copy of the enlargements. Each expert -- 10 it's the same theory as the comparator. They would mark 11 up what they see on a set of enlargements and it would 12 be a case of analysing and looking at and discussing it 13 together to see if, "Do you not see this point", or a 14 case of, "No, I don't see it," or "Oh yes, I see that". 15 It's a case of analysing it together, having a 16 discussion. 17 Q. There has been a suggestion that if individuals are 18 working independently to a numeric standard -- we will 19 come to current practice just now -- individuals are 20 working independently to a numeric standard, the origins 21 of the numeric standard being to remove all doubt, to 22 put it beyond challenge, the safe option would be to 23 accept the lower of the two numbers independently 24 arrived at by an expert. That would be the safest 25 option, would it not? page 7 1 A. Are you're talking about for court purposes? 2 Q. Yes. 3 A. Well, whoever the person that had the lower numeric 4 characteristics, whether it be 10, 12, or 13, if they 5 couldn't reach the 16 then they wouldn't be forced or 6 harassed into making that 16 unless they eventually saw 7 it. 8 You're saying rather than have a discussion they 9 should just go with their first findings and just a 10 straight with it? 11 Q. Yes. 12 A. That would be the case. They would be happy to speak to 13 that if they were asked to do so but obviously if it 14 goes to court it requires the 16, there could be 15 areas -- it's the same, as I say, in any profession you 16 would have a discussion between, you know, certain areas 17 of it you would have a look at it. If someone says, "I 18 can see two or three broad characteristics up here", 19 then you would have a look at it, analyse it and you 20 either agree or disagree. 21 Q. Can I move to a slightly more subtle variation on this 22 argument. We've said if you were going to make an 23 identification at all you are going to have arrived at a 24 conclusion in your professional judgment that you are 25 100 per cent certain of a unique identification? page 8 1 A. Yes. 2 Q. If you have seen the 16 points that are required for the 3 court standard, does it follow that you are 100 per cent 4 certain that those 16 points are indeed, first of all, 5 present in both and that they actually match up and are 6 in common in both? 7 A. Yes. You wouldn't sign for it for court unless you were 8 certain that those 16 were in sequence and agreement. 9 Q. On each one of the 16? 10 A. Each one of the 16. 11 Q. I put this to you for your just comment: if one of your 12 colleagues, the same level as you, whom you respect and 13 who is trained in the same way, comes along to you and 14 says, "Sorry, Mr Foley", I appreciate he wouldn't speak 15 to you like this if he's on the same level but, "Sorry, 16 Mr Foley, I can actually only see 10". You have had a 17 discussion with him and he says, "Sorry, I agree with 18 you, I agree the identification but I can only see 10. 19 Those extra six you are pointing to I just don't see 20 them or, if I do, I think there's a problem with some of 21 those", how can you be 100 per cent certain of that 22 disputed 6 points if someone who is on your level in 23 your own agency whom you respect is in discussion with 24 you saying, "I'm sorry, I just don't see them"? How can 25 you personally be 100 per cent certain? page 9 1 A. It's the individual conclusion, basically. If we're for 2 instance talking about these 6 points, if it was myself 3 that signed for the 16, as long as I was happy that I 4 could explain those 16 in the sequence of 5 characteristics in that mark, if I was happy that I 6 could put that point across in a report to court then I 7 wouldn't change my analysis at all. 8 Q. All I was suggesting to you was that if you have someone 9 who you respect, expressing an opinion to you that 6 of 10 those 16 are just not capable of agreement, the lowest 11 common denominator would be the number at which you 12 could have 100 per cent certainty because the two of you 13 have agreed. Beyond that lower number, you must surely 14 have an element of doubt because one of your colleagues 15 is in dispute with you about the number. 16 A. I wouldn't have a -- well, I would obviously look at 17 them again possibly but I would respect, obviously, 18 their opinion on the mark but I would also expect them 19 also to respect my own. So, yes, I may have another 20 look at them, the 16 that I've marked up, taking into 21 account possibly their points or argument against those 22 6 but at the end of that re-analysis -- I suppose I 23 wouldn't be truly professional if I didn't take into 24 account what my fellow peers were saying. If I would 25 say, "I'm happy with that, I'm not looking at anything page 10 1 else", I don't particularly think that would be 2 particularly professional. Obviously, I would go back 3 and look at it but if after re-examining it I was still 4 happy with the conclusion then as much as I would 5 respect their conclusion I would obviously assume that 6 they would respect mine as well. 7 Q. If I move the topic on there are two different facets I 8 want to move on to, one is looking at you and the civil 9 charter you did and then the second one I will look at 10 the current practice and I will look at this topic we 11 have been discussing with a current eye. 12 As we discussed yesterday, perhaps if we could bring 13 up SG0716, this is the charting that you did on 14 2nd February 2006 on Y7? 15 A. Yes, that's correct. 16 Q. If we can move to page 3 and bring up 3 and 4 together 17 side-by-side in the conventional way. 18 I will find your statement on my computer. What I 19 am looking at here is paragraph 32 of your statement. I 20 should make it clear I'm not in this session going to 21 ask whether you are correct or not about the 16 points 22 because that's a matter we're going to deal with in a 23 later chapter of the Inquiry. 24 What I want to do is to look at your process of 25 reasoning because in 1997 you told us you recollect page 11 1 observing 10 details. Now in 2006, the better part of 2 nine years later, you are able to mark up 16 points. 3 What you observe or what you comment in paragraph 32 4 of your statement, if I have the correct reference, is 5 that the explanation for that is that you are now eight 6 or nine years more senior. Is that correct? 7 A. Yes, that's correct. 8 Q. It is really that process of reasoning that I just 9 wanted to look at. I understood from you yesterday that 10 in 1997 when you were first looking at it as part of 11 this so-called blind test you see 10 characteristics but 12 at that date you had 13 years of experience? 13 A. Correct. 14 Q. You were a team leader? 15 A. Yes. 16 Q. You had given evidence in court on many, many occasions? 17 A. Correct, yes. 18 Q. You were, therefore, more than amply qualified to take a 19 proper professional view of the mark Y7? 20 A. Correct. 21 Q. And you saw on that occasion about 10 characteristics, 22 10 details? 23 A. That's correct. 24 Q. Why would it be that someone who was as ably qualified 25 as you were in 1997 might some years later feel that you page 12 1 can now detect detail that you could not detect, as I 2 say, when you had that degree of skill and 3 qualification? How is that possible? 4 A. My explanation to that one would be that in 1997 I was 5 asked to look at it in the blind comparison, the blind 6 test I just referred to. It was on a comparator. I 7 wasn't looking at it under the eyeglasses or whatever. 8 I was only asked during that comparison to give a 9 decision on whether I could confirm identity, ie 10 eliminate it as one belong going to the other. As I 11 said in my statement I believe I spent about 20 minutes 12 on that at that particular time. At the time of 2006 -- 13 sorry, what I did at that time is reached 10 points in 14 sequence and agreement in the area that I was happy to 15 work in of the mark so that at that point I was 16 satisfied with the identification or elimination as it 17 was called at that point. 18 In 2006, I was given -- I believe I was given a 19 photocopy of the ten-print form, perhaps even the 20 original, I'm not sure, from the actual size of the mark 21 itself to compare, I was given a set of enlargements as 22 well to work on and I was given whatever time to examine 23 it and that along with the 9 years' experience is how I 24 was able to find the 16 points in sequence and 25 agreement. It's because I was asked at that point to page 13 1 mark up what I could on the mark and I was able to do it 2 to the 16-point standard. 3 Q. That may require to be broken down, that answer. 4 First of all, more simply there would be the fact 5 that you're working under better circumstances in 2006? 6 A. I would say so, yes, yes. 7 Q. And, therefore, working under better circumstances, 8 perhaps more ideal circumstances you had a clearer 9 opportunity to see more detail than before? 10 A. Correct, yes. 11 Q. That's even though when you're looking at it in 1997 on 12 the comparator, if I understand it correctly, the 13 comparator was in fact the method of choice for officers 14 when they required to count detail, they went to the 15 comparator? 16 A. That was one of the options. It was probably the first 17 option. If you wanted to expand it from looking at a 18 natural size under the glass, the next step would be to 19 put it on to the comparator but it could be that 20 sometimes you were not satisfied with looking at it on 21 the comparator either. There was a bit of area up at 22 the top that wasn't, due to the contrast or the density 23 of the lighting on the comparator, you would then go on 24 to the next stages I described earlier and request 25 photographic enlargements from the Identification page 14 1 Bureau. 2 Q. Therefore, that takes us back to the first 3 consideration, as I said, in 2006 you might have been 4 working under better circumstances. 5 A. Yes. It kind of was the same in reverse. You wouldn't 6 sign it off as not being a person until you were 7 completely satisfied it wasn't that person just as much 8 as confirming identity as well. 9 Q. What I'd like to ask you about is to suggest to you for 10 comment another consideration that might come into play 11 in 2006, and that is this -- and please there is nothing 12 sinister suggested in this -- it might be that if you 13 have looked at something before and you are 100 per cent 14 certain of an identification, albeit you've only seen 15 10 points but you are 100 per cent certain of an 16 identification, there might be a subconscious sort of 17 psychological influence that would then lead you at a 18 later date to construe, perhaps, ambiguous detail as 19 consistent with the opinion you've already formed? 20 A. What do you mean? Sorry ...? 21 Q. What I mean is that since you are already of the view 22 that this is a unique identification, 100 per cent 23 certain, there might be a psychological influence on you 24 to make you more predisposed on a second occasion when 25 you look at the mark to see additional detail consistent page 15 1 with the opinion you've already formed. 2 A. If I could refer to this mark as an example, 2006 was, 3 as I say, like I said yesterday, was the first time I'd 4 actually compared the mark again since 1997. As much as 5 I remember of the actual mark itself, because of the 6 quality and what appeared to be a double touch, my 7 assessment of the mark I could remember the mark but I 8 could never actually remember the points I marked up. 9 So when I looked at it in 2006, if I'm being honest, I 10 was probably more the other way. I would be more saying 11 what if I didn't find 10 points in sequence and 12 agreement in 1997. So I was more cautious towards 13 treating it as a first check rather than basing it on my 14 opinion in 1997. 15 Q. One final point just before I move on to the current 16 practice, I may have picked you up incorrectly but when 17 you were discussing what happened in 1997 at the blind 18 test, you again referred to the fact that it was an 19 elimination that was the phrase that Mr Dunbar had used. 20 A. Yes. 21 Q. Because you have in your own practice, your own opinion, 22 a threshold of about 8 to 10 detail that were common and 23 none in disagreement, would there therefore be a 24 tendency for you in 1997 to stop the exercise at the 25 point where you are able to observe 10 details because page 16 1 that is sufficient for an elimination and not go on to 2 see whether there are 16 that you might otherwise have 3 required if it was a suspect identification that you 4 were carrying out? 5 A. That would be the case, yes. 6 Q. Now if I can move on -- and this is the last chapter 7 with you -- it is, in general, how things operate today. 8 We will just carry on the same conversation we are 9 having just now and I will broaden it out to other 10 matters. 11 We understand that today the SPSA, in common with 12 other bureaux in the United Kingdom, works to a 13 non-numeric standard? 14 A. That's correct. 15 Q. So that much of the debate we have been having just now 16 this morning about you seeing somewhere between 10 and 17 16 and requiring a discussion with colleagues, as I 18 understand it, that need would no longer arise now? 19 A. That's correct, yes. 20 Q. Do you still nontheless have discussions with colleagues 21 in cases where you are in any doubt about the 22 identification of a mark? 23 A. If I was asked to look at a mark that somebody else has 24 identified and I couldn't see it, then if I clearly 25 could see that it was that person and identify it as page 17 1 that person then there would be no need for a discussion 2 obviously because the two of us reached the same 3 conclusion. If I was to check it and I totally 4 disagreed with the conclusion, ie it was not that 5 person, then it would obviously have to be taken 6 further. 7 There could also be the occasion when someone is 8 happy to assign identification to it but another expert 9 could say, well, I don't think that the detail in it is 10 clear enough, ie my assessment would be it would be 11 insufficient and fragmentary to individualise that 12 particular mark to an individual. I don't know if that 13 answers your question. 14 Q. What I am wondering about is plainly there are opposite 15 ends of a spectrum, extremes of a spectrum. You are the 16 second checker, let's narrow it down to that. Plainly 17 you could look at it yourself and immediately agree the 18 identification and you simply sign the forms and that 19 would be that. There would be no need for a discussion. 20 A. Yes. 21 Q. The second, the opposite end of the scale, is you look 22 at it and you immediately disagree. We understand 23 there's a referral arrangement now for disputes of that 24 sort. 25 A. Yes. There was also that in 1997 as well, obviously. page 18 1 There was -- it's much the same procedure as it was in 2 '97 as well. 3 Q. What I'm trying to explore with you is whether there can 4 be an intermediate situation. So the first person to 5 carry out comparison has identified, you are the second 6 checker and you are looking at it and you're thinking, 7 "Well, I can see that there are a number of details in 8 common but I'm just not sure if those are of sufficient 9 quality to enable me to conclude that this match is, 10 indeed, a unique match as opposed to a coincidental 11 equivalence of these two", so you're in a degree of 12 doubt about the quality of the common characteristics. 13 First of all, before I get carried away with an 14 abstraction, is that a realistic possibility that you 15 would be looking at something and have that debate in 16 your own mind? 17 A. That's possible, yes. 18 Q. Again, forgive me just for use of language, moving 19 beyond "possible", does that actually occur from time to 20 time when you're looking at something? 21 A. It does occur, yes. 22 Q. What I'm asking you is how you progress that? How do 23 you, yourself, resolve that particular doubt in your 24 mind? Do you simply debate it to yourself or do you go 25 and speak to your colleague, the first checker? page 19 1 A. If I couldn't satisfy myself that that or individualise 2 that scene of crime mark to the person that I'm 3 comparing it against, I would obviously, as I said 4 earlier on, you would check it very carefully before 5 actually saying it isn't either, just as much as you 6 would do if it was identified. But if, after my 7 analysis and the time I spent on it, if I was satisfied 8 that there could be some detail that's common with it 9 but there's too much or there are other areas in 10 disagreement or areas that cannot be accounted for or 11 explained, either down to distortion, the double touch, 12 the surface and so on, if there was areas like that that 13 would affect my ability to individualise it to that 14 person, then that would be my conclusion. I would not 15 agree with identification on it then. 16 Q. Do you ever discuss your opinions with colleagues today 17 in cases where you have an element of uncertainty about 18 the quality of a particular detail of whether it is of 19 sufficient quality to individualise? 20 A. Yes. We have a quality assurance section within the 21 Fingerprint Branch and if you have a scenario where you 22 are second checking a mark that you are not happy with 23 the quality of it, you're not saying it's not that 24 person but you're saying that I'm not particularly happy 25 with the quality of it, then it would be referred to the page 20 1 quality assurance officer who would then set up what is 2 called a facilitated discussion that they would chair, 3 basically . 4 Q. Who would be present at the facilitated discussion? 5 A. It would be both the experts themselves and the quality 6 assurance officer. 7 Q. Again, just to make sure I'm not misunderstanding, 8 quality of the mark could be, at the crudest, simply 9 whether there is sufficient detail for any comparison of 10 that mark against fingerprints; correct? 11 A. Correct. 12 Q. Quality -- assuming there is sufficient detail for a 13 comparison of that mark, quality enters the process at 14 the second stage, does it, and that is whether the 15 points or details in common are of sufficient quality to 16 permit individualisation based on those common details? 17 A. Well, the quality of it is part of the analysis of the 18 mark. So if you have found enough quality or detail 19 within the mark to individualise it, then that would be 20 obviously a conclusion. 21 Q. Are you indicating that facilitated discussion can take 22 place with a mark where everyone is agreed there is 23 sufficient detail for it to go into a comparison 24 exercise, first of all, so that the mark itself is 25 capable of comparison? page 21 1 A. That would be the first person to look at it would 2 assess it as being comparable. 3 Q. But then the facilitated discussion is whether the 4 details observable on that mark that are in common with 5 the known print are a sufficient quality to 6 individualise the mark and the known print? 7 A. That would be the second checker that would possibly 8 analyse it or assess it and say, "I don't think the 9 quality's of sufficient standing to individualise", so 10 then that would be when the discussion or the reference 11 to the quality assurance would be put forward. 12 Q. Can you tell me how quality is assessed? How does the 13 discussion proceed? Again, we have a mark that is of 14 sufficient detail to enter the comparison process. So 15 it's not insufficient. We have a mark that is capable 16 of entering the process, okay? 17 A. Mm-hm. Based on the first person, the first examiner's 18 opinion, because he or she is the first person to 19 analyse it before anyone else has looked at it. 20 Q. Mr Foley, I just want to remove an area of doubt. Let's 21 just assume the two examiners are in agreement there is 22 sufficient detail in that mark to be able to be 23 comfortably compared against a series of eliminations. 24 Fair enough? 25 A. Okay, yes. page 22 1 Q. So we now have a mark that's capable of comparison and 2 we're now looking at it against a list of eliminations, 3 however many people are in the list. Of that list, 4 let's say, of ten people for elimination, one emerges as 5 a possible match and the debate between the two 6 fingerprint officers is whether the points that are in 7 common between the one individual and the mark, whether 8 those points are of sufficient quality to admit of the 9 conclusion that the mark can only come from that known 10 individual. 11 So do you understand the debate that I'm assuming? 12 A. You're saying the both officers agree that the mark was 13 made by that one individual? 14 Q. No. 15 A. No. 16 Q. I'm assuming the two officers have eliminated everybody 17 else so there's now only one person and there is a 18 possible match between that individual and the mark. 19 Yes? Do you understand? 20 A. Possible match. 21 Q. What the two officers are discussing, you and a 22 colleague are discussing, is whether that possible match 23 is indeed an identification. 24 A. Well they wouldn't make it an identification until they 25 could -- each of them can satisfy themselves that there page 23 1 was any disagreement or any characteristics that were in 2 it they didn't -- and they could explain why they 3 explain why they don't -- ie, they are explained. So 4 there wouldn't be a possible, do you know what I mean. 5 It would have to be identified, negative or 6 insufficient. There wouldn't be a possible in between 7 the two officers. 8 Q. Let's just remove that again, if I'm becoming too 9 abstract, you can tell me. There are no points in 10 disagreement and this exercise will only make sense for 11 me if I put in a number, a challenging number. 12 A. Okay. 13 Q. Let's say there are seven characteristics, seven details 14 that are common between the two, the mark and the known 15 print. Do you follow? 16 A. Yes. 17 Q. If I understand it correctly, applying today's 18 non-numeric standard, two fingerprint experts could 19 arrive at a conclusion that the mark and the known print 20 are indeed identical on as few as seven points of detail 21 in common. 22 A. It could be possible but I think I'd refer back to one 23 of answers I gave yesterday. I can only answer that 24 question if I was to show you an example, basically, 25 because each scene of crime mark is unique in its own page 24 1 basis of the pressure, the surface it's on, the angle 2 it's on, how it was gripped. You have to take all that 3 into consideration. 4 If it was a small area of the mark that was 5 disclosed but there was an unusual convergence of 6 characteristics or detail within that small area and 7 there was nothing else in disagreement, it was 8 particularly clear, then an expert could -- I would say 9 could because, again, I would have to see the mark in 10 question -- but an expert could quite easily be happy to 11 sign that as identification. Whereas, you could get a 12 larger area where there's no particular great amount of 13 detail, no bifurcations, no ridge endings, very little 14 in it, then you would have to say, even though it's a 15 bigger area, if you get seven points in that, as you 16 said, you would have to take into account how common 17 that was when you're analysing it and I have to say 18 again that unless I see the actual mark I could only say 19 they could quite happily sign it off as an 20 identification. I couldn't give any more answer than 21 that other than actual looking at a particular example. 22 Q. First of all, in relation to how common a particular 23 detail is, do you have statistics that indicate how 24 common particular features are across the population's 25 fingerprints? page 25 1 A. Sorry, I don't know. 2 Q. And in looking at the quality of a particular 3 characteristic, do you have any objective standard of 4 quality of a particular characteristic or is it 5 a subjective judgment that you're arriving at? 6 A. It's basically subjective judgment on an individual mark 7 each time I compare it or analyse it, sorry. 8 You could have a mark with seven or eight 9 characteristics on it but you won't know if you will be 10 able to individualise that until you see a fingerprint 11 that matches it. You wouldn't know. So if I came 12 across a mark, particularly now with the non-numeric 13 standard, if I came across a mark that had seven or 14 eight characteristics on it and they were particularly 15 clear there's no way -- I would never make that 16 insufficient. I would retain that on the basis that a 17 comparison may be made in the future to individualise 18 that mark. 19 Q. The final point that I wanted to ask about the practice 20 today, I understand the non-numeric standard to have 21 been introduced in 2006? 22 A. That's correct, yes. 23 Q. Did the change from the 16-point standard to the 24 non-numeric actually affect the way you did your job on 25 a day-to-day basis? page 26 1 A. No, none whatsoever, no. 2 MR MOYNIHAN: Sir, I am grateful to Mr Foley. That would 3 conclude my questions. 4 THE CHAIRMAN: Yes. 5 Would you like to begin Miss Galbraith? What 6 questions would you like to ask? 7 MISS GALBRAITH: There are four areas that I propose to 8 address with this witness. The first relates to his 9 knowledge of other participants in the so-called blind 10 testing exercise; secondly, his knowledge of the dispute 11 regarding mark Y7 and office talk; thirdly, the 12 elimination standards. I am conscious we have heard 13 quite a lot of evidence so far but I hope to address a 14 slightly different area with the witness. Lastly, the 15 timing of his comparison during the blind test. 16 THE CHAIRMAN: Yes. I mean, I think we have already heard 17 who else took part in the blind test. 18 MISS GALBRAITH: The significance of this line, sir, is that 19 there is an indication that there are other unidentified 20 fingerprint officers who the Inquiry has not been able 21 to establish who they are. It may be that there are 22 four officers who remain unidentified. 23 THE CHAIRMAN: Very good. You can ask about that and the 24 other matters. 25 Cross-examined by MISS GALBRAITH page 27 1 Q. Mr Foley, just dealing with that point I think you have 2 said in your statement to the Inquiry that you don't 3 know how many staff members were asked to look at the 4 mark during this so-called blind test exercise? 5 A. That's correct, yes. 6 Q. You don't know who went in before or after you; is that 7 right? 8 A. That is also correct, yes. 9 Q. You confirm in your statement five people considered the 10 mark in addition to yourself, being Alister Geddes, 11 Edward Bruce, Greg Padden and Jean McClure? 12 A. That's including myself. 13 Q. Including yourself? 14 A. Yes. 15 Q. Is it your position you do not know who else took part? 16 A. That's correct. 17 Q. In her Inquiry statement, Fiona McBride has indicated 18 that other officers who may have been involved were 19 officers Noel, McClean, McLeod and Brown. 20 Are those officers known to you? 21 A. Yes, they are, yes. 22 Q. Do you have any knowledge as to whether they may have 23 been involved in this exercise or not? 24 A. I honestly -- I can't recall. The only thing I can say 25 is that it was a late shift so you would probably say page 28 1 there would approximately be maybe between 10 -- 2 approximately 10 of us, maybe more, maybe less on a late 3 shift. As to how many actually saw that, the only 4 guidance I have on that is that I believe there was 5 other people that saw it but I couldn't, going by the 6 way the operation was organised or the exercise was 7 organised, I believe Mr Dunbar, Alan Dunbar, was going 8 through the list of staff on duty. Obviously, Mr Dunbar 9 can clarify that when he comes in. 10 As to who the others were or how many there were, 11 I'm sorry, I couldn't answer. I do think by reading 12 Mr Dunbar's statement in Mr Moynihan's opening statement 13 he referred to Mr Dunbar stopping on 12 in agreement. 14 Q. That is exactly the point, Mr Foley. The indication is 15 that there were 12 in agreement and that means that 16 there are 4 who remain unidentified. 17 A. Right. Well, I couldn't help you there. I assume that 18 was including the six original; is that correct? 19 Q. As far as we understand it. 20 A. I couldn't obviously tell you who they were or whatever. 21 I'm sorry, I couldn't help you on that. 22 Q. You mentioned there may have been 10 officers on duty 23 per shift? 24 A. That's an approximation of a back shift. You have to 25 obviously take into account sick leave, annual leave. page 29 1 As I say, the shifts at the time were early shift 8.00 2 in the morning to 4.00 in the afternoon; the late shift 3 was 12 midday to 8.00 at night. So I believe I was 4 called in around 1800 hours so that would be into the, 5 obviously, the late shift. So how many there were on 6 that shift, I'm sorry, I couldn't help you. 7 Q. Just a point of detail: I understand that there were 8 various teams at that stage. 9 A. That's correct, yes. 10 Q. When you say around about ten members, ten officers, on 11 duty was that within one team or does that mean in 12 total? 13 A. That would be across the office. 14 Q. Across the office? 15 A. Yes. 16 Q. On that -- 17 A. As I say, the ten is just an approximation. I have to 18 emphasise that. I couldn't say for exact how many. 19 It's just an approximation. 20 Q. Thank you. 21 You go on to suggest in your statement that some 22 staff who took part may not have come forward as a 23 result of the pressure and harassment they have seen 24 colleagues endure. 25 A. Correct, yes. page 30 1 Q. Do you know of any staff that have not come forward? 2 A. Well, obviously from the last answer, no, I don't. If I 3 did I would obviously have to put that in my statement 4 but I don't know the names of who they are. Regarding 5 the harassment, obviously, I can understand to a certain 6 degree, you know, jobs being at stake in light of what 7 happened to my colleagues and the pressure that I'm 8 under as well, obviously, I can't possibly ... 9 Q. So you put forward one possible explanation for people 10 not coming forward. If it was the case that these other 11 officers were supportive of their colleagues, would you 12 not expect them to come forward? 13 A. Yes, I would but I've also give an explanation as to why 14 they wouldn't. 15 Q. Would you not agree that by not coming forward to 16 support their colleagues that this can contribute to any 17 pressure and harassment that was felt by others? 18 A. It probably could, yes. 19 Q. You appreciate the importance of this point, Mr Foley, 20 is that claims were made that all officers who checked 21 the mark were happy with it and confirmed its 22 identification at that time. In fact, you yourself in 23 your Inquiry statement, paragraph 34, you say that 24 no-one expressed any doubt. 25 A. That's correct -- of the five that I was aware of, yes, page 31 1 that was correct. 2 Q. But you agree that certainly the Inquiry knows of at 3 least two officers, McClure and Padden, who could not 4 express an opinion and had wanted to have another look 5 at the mark? 6 A. That's correct, yes. 7 Q. The fact is that there remain four unidentified officers 8 who may have looked at the mark; so we cannot know or 9 test what their view was. Isn't that right? 10 A. Possible, yes, mm-hm. 11 Q. If I can move on, Mr Foley, to ask you just a couple of 12 questions about the standard of elimination. You have 13 already given us quite a lot of information about the 14 way that you would consider marks and I think you said 15 you would be happy to eliminate a print with up to 16 10 points in agreement? 17 A. Correct, yes. 18 Q. What is the lowest number of characteristics that you 19 can eliminate a print with? 20 A. Well, based on my answer to Mr Moynihan, it would depend 21 on the actual uniqueness of the mark itself, the detail 22 contained. I wouldn't give you -- I tried to say 23 yesterday that I wasn't particularly happy to give an 24 exact figure until I analysed and compared the mark in 25 question. So I would have to stick by that, obviously. page 32 1 I would have to wait until I reached a point of 2 comparison where I was in no doubt that that mark 3 belonged to that individual. 4 Q. From what you have indicated today, your practice in 5 1997 would be the same as your practice today. In 6 saying that, can we take it that would have been your 7 practice in 1997? 8 A. The method of comparison is exactly the same. 9 Q. So can we understand from your evidence that, in the 10 normal course of events, eliminations were done to a 11 standard of less than the 16-point court standard? 12 A. That's correct, yes. 13 Q. Would we also be correct to assume that in a case where 14 there are a very high volume of marks that such 15 eliminations would be achieved below the 16-point 16 standard? 17 A. That would be correct. In usual case circumstances you 18 would be happy to eliminate below the 16, yes. 19 Q. Have you ever worked on a major inquiry where every 20 identifiable partial or fragmentary print has been 21 eliminated to a 16-point standard by four fingerprint 22 experts? 23 A. Well, a large volume case or are you saying every mark 24 eliminated to more than 16? 25 Q. No, to a 16-point standard, that it was eliminated to a page 33 1 16-point standard and was done by four fingerprint 2 officers? 3 A. Every mark? 4 Q. Yes. 5 A. I've never worked on a case where every single mark was 6 eliminated to a 16-point standard. 7 Q. Would you be surprised at the suggestion that in a case 8 where there were around 172 partial or fragmentary 9 prints every single one was eliminated to a 16-point 10 standard by four fingerprint officers? 11 A. 172 marks eliminated to a 16-point standard ... if you 12 were to reach the level of elimination, I would be 13 surprised, obviously, if that was actually found in a 14 case. 15 Q. If I can ask you now please about your knowledge of the 16 controversy regarding mark Y7 and what discussion there 17 may have been in the office. This is something that you 18 mention in your statement at paragraph 28. You indicate 19 that you didn't hear anything further in the office 20 regarding this so-called blind test until the Mackay 21 Inquiry. 22 Do you want to have a look at your statement? 23 A. Yes, I see that, that's correct. 24 Q. You go on in your statement to say that you weren't 25 aware of any controversy regarding mark Y7 until after page 34 1 Shirley McKie's not guilty verdict. Sorry, this is at 2 paragraph 30 in your statement. 3 A. 30? 4 Q. 30. It's the last sentence and perhaps if it could be 5 put on the screen, please. It is at page 9 of the 6 statement. 7 A. I actually have it here; so, yes, I'm happy to speak to 8 that as well. 9 Q. What I was wondering about is how that compares with 10 other evidence that the Inquiry has heard. Jean McClure 11 in her Inquiry statement has said that the blind test 12 was quite a topic of discussion the day after. 13 Do you recall that? 14 A. I don't recall that, no. 15 Q. Further, Mr Padden, who I think you heard give evidence, 16 he said that, certainly in his Inquiry statement at 17 paragraph 4 -- his Inquiry statement is FI0008 -- and in 18 paragraph 4 around about halfway down we see a sentence 19 starting: 20 "The McKie case was high profile so there was talk 21 about it in the office, given that it was disputed and 22 was going to be challenged by an American expert. I 23 think this talk must have occurred after the case 24 against David Asbury and before Shirley McKie's perjury 25 case." page 35 1 Was that talk that you were aware of? 2 A. No, I'm sorry, I wasn't aware of that, no. 3 Q. If we can go on please in the same statement to 4 paragraph 14 -- 5 A. Of my own statement? 6 Q. No, it will be put on the screen. This is still 7 Mr Padden's statement to the Inquiry. In paragraph 14 8 he starts by saying: 9 "The office chat about Y7 and it being controversial 10 came from those officers that had identified the mark as 11 being that of DC McKie. There was I think a confidence 12 among the staff that when it went to court the decision 13 of the SCRO staff would be upheld." 14 Again, is that talk within the office that you were 15 not aware of? 16 A. Again, I don't recall. I don't recall it. 17 Q. You don't recall that? 18 A. No. 19 Q. Can you think of a reason why you would be excluded from 20 these kind of discussions? 21 A. Intentionally excluded? I couldn't answer that one at 22 all. The only answer I could give is that in July, 23 1st July 1997 I went on to permanent night shift; so I 24 wasn't in the office during the day to be involved in 25 any discussion. page 36 1 Q. Would it also be the case then that you can't remember 2 any talk regarding an American expert, Pat Wertheim? 3 A. Not at that time I don't recall anything, no. 4 Q. If I can lastly ask you please, going back to the blind 5 test itself, you said yesterday at the beginning of your 6 evidence you were referred by Counsel to the Inquiry to 7 the statement that you gave to officers from Tayside 8 Police. Do you remember that? 9 A. I do recall that, yes. 10 Q. Your statement is CO1145. This statement was given in 11 August 2000. Do you recall that? 12 A. I recall the interview, yes. 13 Q. You recall the interview. Obviously that was only three 14 years after the test itself. 15 A. Correct. 16 Q. You would agree obviously that's far closer in time than 17 we are now? 18 A. Yes, that's correct. 19 Q. You would have been aware of the purpose of the Inquiry 20 and the questions that were being put to you by these 21 officers at the time? 22 A. Well, I can only remember what was on that statement 23 basically from the actual questions that were addressed 24 to me and I never received that statement until 2006. 25 So I had no opportunity to agree/disagree with any page 37 1 content of that statement. 2 Q. The statement was taken by two police officers, wasn't 3 it? I think we see from page 3 a Detective Sergeant 4 Gary Brown and a Detective Constable Gary Ogilvie? 5 A. Again, I can only agree with that as who they said 6 interviewed me. So that's -- I'm happy with that if 7 that's correct. 8 Q. Do you remember it being two police officers? 9 A. I do remember it being two police officers, yes. 10 Q. You would have given them the most accurate details as 11 far as you could remember it at the time? 12 A. Correct, yes. 13 Q. Obviously you would realise the importance of doing 14 that? 15 A. Correct, yes. 16 Q. In terms of the detail that you could remember, it is 17 noted in the statement you are obviously able to 18 remember what was said to you by Mr Dunbar before giving 19 or before looking at the mark? 20 A. Yes, I gave a brief oversight, a description of what -- 21 the exact words I couldn't remember but basically I 22 remember the elimination, "If you just look at the mark 23 and tell me. Let me know if you can eliminate one 24 against the other". It was words to that effect. 25 Q. Could we look at the second page of that statement, page 38 1 please. This is something that you have already 2 mentioned but I just want to confirm with you, you say 3 here that you looked at the mark for five minutes. Is 4 it not the case that what you said to the officers to 5 Tayside Police was correct and you did only look at this 6 mark for five minutes? 7 A. No, that's not correct. 8 Q. So it's your suggestion that these police officers have 9 written this down incorrectly? 10 A. Well, that would be my assumption, yes. As I say, I 11 never had a chance to -- unlike the Fingerprint Inquiry, 12 you had get a chance to get it back, analyse it, amend 13 it if you had to. But this report I never saw until 14 2006. I've got a copy of it here myself. 15 Q. I think, as you realise yourself, Mr Foley, there's 16 quite a difference between looking at a mark for 5 17 minutes and looking at a mark for 20 minutes? 18 A. Yes, I agree, yes. 19 Q. Is it perhaps the case that with hindsight you realised 20 that 5 minutes may not have been sufficient and your 21 position is now that it's more like 20 minutes? 22 A. I took how long as it took me to reach a decision and I 23 stand by my report to the Inquiry. I believe that was 24 taken down incorrectly. 25 Q. Your position is that those officers wrote that down page 39 1 incorrectly? 2 A. Correct, yes. 3 Q. You were asked, I think, finally by Counsel to the 4 Inquiry about your consideration of the mark in 2006 and 5 your explanation for being able to come up to the 6 16-point standard, in addition to your further 7 experience, was that you had the necessary equipment and 8 circumstances to consider the matter; is that right? 9 A. That's correct, yes. 10 Q. You agree with me, though, that the only matter that you 11 mention in your statement for the difference is that you 12 had 9 years additional experience. You don't mention 13 improved circumstances in your statement; is that right? 14 A. Yes, I agree with that. That's what in my statement, 15 yes. Obviously I have added to it just now. 16 Q. Given that you had access to all the appropriate 17 equipment and photographs in 2006, is it possible that 18 you might have missed something in 1997 when you first 19 looked at the mark? 20 A. No, I think I've answered the question in saying that I 21 was asked in 1997 to satisfy myself that I could 22 eliminate one against the other. I was not asked to 23 compare it to a full 16-point standard. So when I 24 compared it in 1997, I took the necessary time that I 25 was comfortable with to analyse and compare the mark on page 40 1 the comparator and my conclusion was that once I reached 2 10 that I was happy. 10 characteristics I was happy 3 with, then I was happy to say that that person I could 4 individualise one against the other. 5 Q. In 2006? 6 A. No, in 1997. 7 Q. With the more appropriate circumstances and equipment in 8 2006, is it not possible that you may have noted points 9 in disagreement or noticed things that you did not see 10 in 1997? 11 A. If there was -- when I looked at it in 2006, as I say, I 12 looked at it as a fresh -- basically as a first check 13 again. There is severe movement and distortion in that 14 mark, particularly the top half of the mark. There's a 15 line that goes across it where, in my opinion, you can 16 see that there is possible a double-touch but there's 17 definitely a twist in that mark and that, to me, was 18 part of my analysing and assessment of the mark. I was 19 happy to work around the area below that in around the 20 core. I found the necessary points that I was satisfied 21 with and I was able to explain the distortion and the 22 movement on the area above it. I was satisfied to agree 23 that that mark was made by that left thumbprint. 24 MISS GALBRAITH: Thank you, Mr Foley. 25 THE CHAIRMAN: Miss Grahame? page 41 1 MISS GRAHAME: No thank you, sir. 2 THE CHAIRMAN: Mr Macpherson? 3 MR MACPHERSON: No thank you, sir. 4 THE CHAIRMAN: Mr Holmes, have you anything? 5 MR HOLMES: No thank you, sir. 6 THE CHAIRMAN: Mr Moynihan? 7 MR MOYNIHAN: I have no re-examination, sir. 8 THE CHAIRMAN: When you are dealing with the comparator, 9 first of all, on the last point that was being raised 10 with you, normally you wouldn't begin with the 11 comparator at all. 12 A. Correct, yes. 13 THE CHAIRMAN: You would begin by looking at it with your 14 naked eye and then through a glass and then this would 15 be well down the process before you would look at it 16 through the comparator. 17 A. Yes, correct. It would be a further phase or a process 18 in the comparison, yes. 19 THE CHAIRMAN: When you get to a comparator, I can 20 appreciate that a proper course is to wipe everything 21 off and look at it afresh, but assuming that the 22 comparator hasn't been rocked or shaken so that marks -- 23 is there not a great temptation to look and see what 24 your colleague has found and then, if you're in complete 25 agreement and can see every mark on a simple -- I'm not page 42 1 suggesting Y7 -- but on any simple straightforward mark, 2 if you can see that they've marked all the points that 3 are clear to you as an expert, why would you go through 4 the process of wiping it and doing it all over again? 5 A. Basically because the analysis or the comparison you 6 have to reach a conclusion satisfying yourself. So that 7 would be -- that is why there was the procedure that was 8 best practice to wipe it clean and start afresh. 9 If you looked -- because of the comparator you put 10 the pen marks on the screen. If you were to sit and 11 look at someone else's markings it may be that the pen 12 mark possibly hides a bit of detail or -- I don't know. 13 Basically, I never did it. I always wiped the screen 14 clean because I wanted to be satisfied myself that I 15 reached the conclusion on my own independent analysis. 16 THE CHAIRMAN: So you don't really have any regard to what 17 somebody else has found. 18 A. Not at that point, no. No, I don't. I base it on my 19 own opinion. 20 THE CHAIRMAN: And certainly not on this occasion -- 21 A. Certainly not. 22 THE CHAIRMAN: -- you weren't looking to see whether you can 23 agree with 10 of those points of whoever went before you 24 but not the rest. 25 A. Correct, sir. I think -- I've, obviously, said when I page 43 1 went into the blind comparison the screen was clean and 2 I did clean it myself, obviously, when I left. 3 THE CHAIRMAN: No, I appreciate best practice but we do not 4 always all accord best practice. I just want to get 5 clear -- I understand that's your process. I was just 6 looking to see whether sometimes there must be a 7 temptation. 8 Is there a temptation if you can see clearly the 9 marks and you agree with them, why start again? 10 A. No, I haven't. I, obviously, I wouldn't go that way, 11 no. 12 THE CHAIRMAN: That just doesn't happen? 13 A. I may have approached a screen from an ordinary case 14 where the person has forgot to wipe it clean, but the 15 first thing I would do is just take it off. 16 THE CHAIRMAN: The other issue I just want to ask you about 17 is quality. Now, if the first officer or expert looks 18 at the mark and says this is not of a quality that would 19 allow one to make any assessment of it, is that the end 20 of the matter? 21 A. No. No, the insufficient marks, particularly in serious 22 crime, high volume crime, everything is second checked. 23 THE CHAIRMAN: Who do they go to next? If I've marked it, 24 as an expert, insufficient, does somebody else then look 25 at it? page 44 1 A. It then goes into the process for second check. It 2 doesn't necessarily get handed to another person. For 3 instance, back in 1997 there was a second check tray. 4 It was just a case of putting the cases in the tray in 5 chronological order so that the first case in would be 6 the first case out. 7 THE CHAIRMAN: If the second officer marks it as sufficient, 8 then what happened? 9 A. If the second officer believed it was sufficient, the 10 first thing they would obviously do would be to compare 11 it, analyse and compare it, against whether there was 12 eliminations with the case or whether there was suspects 13 quoted for the case. But they would also always go back 14 to the first checker and say, "I think there's enough 15 detail in that for comparison". The first checker would 16 be free to have another look at it and see whether they 17 agree or disagree or whether they would want to stand by 18 their original decision on it. 19 THE CHAIRMAN: Let us take it that he or she decides, the 20 first officer said, "No, I still think it's 21 insufficient"? 22 A. Then the mark would be insufficient. 23 THE CHAIRMAN: The mark would be insufficient? 24 A. Yes. 25 THE CHAIRMAN: So it's really the second person says, "I page 45 1 think, it's sufficient", but if the first says no, 2 that's the end of the matter? 3 A. No, it would go into, obviously, a possible facilitated 4 discussion again to look at it again. But if my 5 correct -- how I remember the process, it would be that 6 if the person signed it as insufficient, one person said 7 it's insufficient, it goes to the second check. If 8 there can't be agreement between those two officers, 9 then the final conclusion would be that the mark was 10 insufficient. 11 THE CHAIRMAN: It wouldn't go to quality control in those 12 circumstances, the quality assurance officer? 13 A. Sorry, quality assurance, I beg your pardon, yes, 14 quality assurance it would go to, yes. 15 THE CHAIRMAN: It would go to them? 16 A. It could go to them if the person -- if the person that 17 felt there was enough detail in it to compare felt 18 strong enough. It could be you look at a mark that's 19 bordering on insufficient but you would like to have a 20 look, as I said earlier on, you wouldn't -- if you had 21 that piece of doubt, personally speaking if I had that 22 piece of doubt that there may be enough detail in that 23 mark, especially on the non-numeric, I would retain it 24 on the understanding that possibly it could be 25 identified against a known person. page 46 1 But if the first person was adamant that it was 2 insufficient and the second person was adamant that it 3 was, that is when it would go to the quality assurance 4 facilitated discussion. 5 THE CHAIRMAN: But the first officer, am I right in saying, 6 would never be asked to express an opinion if they 7 thought the mark was insufficient to do so? 8 A. If they assessed it as insufficient the chances are they 9 probably wouldn't have compared it because their 10 analysis is that there's insufficient detail in it to 11 individualise. 12 THE CHAIRMAN: Thank you very much, thank you for your 13 assistance. 14 Now we will take the usual break until 11.50. 15 (11.30 am) 16 (A short break) 17 (11.50 am) 18 MR MOYNIHAN: Sir, the next witness is Sheriff Gilchrist. 19 SHERIFF WILLIAM GILCHRIST (sworn) 20 THE CHAIRMAN: And it is Sheriff William Gilchrist? 21 A. It is, yes. 22 THE CHAIRMAN: Just for the record. Thank you. 23 MR MOYNIHAN: I have forgotten to bring up your statement; 24 so forgive me for just a second. (Pause) 25 Examined by MR MOYNIHAN page 47 1 Q. There are, in fact, only four points I want to ask you 2 about, to clarify some points and in relation to one 3 matter it is simply to obtain your own recollection. 4 What I want to begin with, Sheriff, is a matter of I 5 am simply seeking your own confirmation and it relates 6 to what you record in your report relating to Mr Swann 7 and Mr Graham, both of whom you met. 8 Looking to your own statement, paragraph 30, you 9 tell us that you did not take a formal statement from 10 either Mr Swann or Mr Graham? 11 A. Yes. 12 Q. Do I take it from that that there would be no record 13 beyond what you actually recorded in your report as to 14 what these gentlemen told you? 15 A. Well, my difficulty is I don't really remember what I 16 was doing at these interviews. I expect I would have 17 had the statements from the Tayside Inquiry and I would 18 be noting on those statements anything that amplified 19 what was in the Tayside Inquiry statement. I don't 20 think -- having spoken to them I don't think I then 21 relied entirely on my memory of what they said to me. I 22 must have taken some notes and probably these would have 23 been notes on a copy of the Tayside Inquiry statement. 24 Q. Needless to say you would have been making every effort 25 when you compiled your own report to accurately page 48 1 transpose what you had been told? 2 A. Yes. 3 Q. In fact, what you tell us in paragraph 42 of your 4 statement is that you now have no clear memory, in fact, 5 of even meeting Mr Graham? 6 A. No disrespect to Mr Graham but I simply can't remember 7 him whereas for some reason I remember Mr Swann, 8 probably because I met him in London. I just do not 9 remember meeting Mr Graham but obviously from the papers 10 it's clear that I did meet with him. 11 Q. Again, this may be a limited exercise just to look at 12 your report, which is CO0003. It will be brought up on 13 the screen in front of you. If I could begin at 14 page 16, PDF page 16. This may if you have the paper 15 one -- 16 A. Yes, I have a paper copy. 17 Q. -- will be page 15. The PDFs are always one more than 18 the paper. 19 I am looking simply at page 15 for you and page 16 20 on the screen just now for others just to see the 21 setting. You have a section of your report that begins 22 with an analysis of the fingerprint evidence, mark Y7; 23 is that correct? 24 A. Yes. 25 Q. Then if we could on the PDF turn to page 17 for you, page 49 1 which is page 16. 2 Do you make comment in the second last or third last 3 paragraphs there on your encounters with Mr Graham and 4 Mr Swann or at least bring in their background? 5 A. Yes. 6 Q. Malcolm Graham you say had been originally instructed by 7 the defence in the Asbury case and he was still of the 8 opinion that the crime scene mark had a smudged area at 9 the top, which could have either been movement of the 10 finger at the time or a second touch. 11 A. Yes. 12 Q. Peter Swann you understood was instructed by the defence 13 in the McKie case. He too had discounted the top 14 two-thirds of the mark. Is that correct? 15 A. Yes. 16 Q. Then he now believes that the top portion of the mark 17 was made by the thumb having twisted round by about 18 60 degrees. 19 A. Yes. 20 Q. Do you have any recollection of that now? 21 A. I have -- it's always very difficult when you read 22 something whether you are implanting memory or whether 23 you actually remember it. I have a vague recollection 24 of Peter Swann talking about the upper portion of the 25 mark and about the thumb having been twisted round just page 50 1 as for some reason I remember him talking about the 2 21 points. That's just something that sticks in my 3 memory. 4 Q. Thankfully you have told us that you have a memory of 5 the point we are next going to turn to. If you turn 6 over the page -- for you page 17, for us page 18 -- and 7 you carefully set out what you were told by each of the 8 men. If I can just to carry on the conversation about 9 Peter Swann, because you have a recollection of this, 10 it's the penultimate paragraph. You said that 11 Mr Swann's position remains unchanged and then you 12 write: 13 "He maintains that he can identify 21 individual 14 characteristics in the lower portion of the mark. When 15 he compared those to the left thumb print of Shirley 16 McKie he found all 21 characteristics in agreement and 17 none in disagreement. His approach was to attempt to 18 identify every possible characteristic. Accordingly, he 19 accepts that many of the 21 points which he identified 20 are questionable, with only 11 being clear 21 characteristics. However, all 11 matched similar 22 characteristics in Shirley McKie's print; and the other 23 10, which are difficult to see, would also match 24 characteristics on the McKie print." 25 That is what you have written. page 51 1 A. Yes. 2 Q. Before I ask you any of my questions, what recollection 3 is it you have of the 21 characteristics? 4 A. That there are 21. That is my memory, that Peter Swann 5 told me that there were 21 characteristics that he could 6 identify. I mean, this detail about 11 being clear and 7 10 being less clear I don't remember that, but clearly 8 it's in my report because that's what he will have said 9 to me. 10 Q. And I assume you have no recollection because I was 11 going to ask you to elaborate, if you possibly could, 12 the middle sentence which says: 13 "His approach was to attempt to identify every 14 possible characteristic ...", you're shaking your head. 15 A. No, I don't. I don't remember that. 16 Q. That's fine. 17 Malcolm Graham -- I will not read out the middle 18 paragraph on the page but just ask you to read that 19 because what I was going to ask is the same question, if 20 it is possible for you to add in any way to what's set 21 out there if this is now the only record of your 22 conversation with him. 23 A. Yes. 24 Q. This is your only record, really? You couldn't 25 elaborate? page 52 1 A. Yes. There would have been notes but I've no idea what 2 has happened to them. 3 Q. In particular, just to make sure that something's not 4 lost in the middle paragraph on Malcolm Graham it ends 5 up with the last sentence revealing that Mr Graham 6 thinking that SCRO went wrong at some point, obviously, 7 in trying to find 16 points in common. 8 Does that jog any memory that Mr Graham was thinking 9 SCRO had gone wrong somewhere? 10 A. Not particularly. I mean, before seeing any of the 11 papers, all I could have said was that Peter Swann and 12 Malcolm Graham agreed with the SCRO conclusions and the 13 detail of what they said to me I don't have any 14 particular memory, apart from Peter Swann's mention of 15 21 characteristics. So if I'd been asked that before 16 looking at my report that's all I could have said. 17 Having looked at the report, all I can say is that 18 what's in it is what I would have been told by Malcolm 19 Graham and Peter Swann. 20 Q. Thank you very much. 21 In that case, if we move to a completely different 22 topic, I have here a reference to page 25 on the PDF. 23 So if we can go to page 25 on the screen first to make 24 sure. Yes, page 24 for you, Sheriff. You are talking 25 about a facilitated meeting. page 53 1 A. Yes. 2 Q. And that was a facilitated meeting held on 3 14th August 2000. We've come to refer to it as a 4 meeting at Tulliallan. 5 A. Yes. 6 Q. Were you present at that meeting? 7 A. I was. 8 Q. One of the matters that is raised -- you discuss in your 9 report the exchange of views among the experts present 10 that day. 11 A. Yes. 12 Q. We understand that among the experts present, in a sense 13 two opposing camps, you mention this in the first 14 paragraph under the facilitated meeting Mr Rudrud and 15 Mr Zeelenberg on the one hand and Mr Mackenzie and 16 Mr Dunbar for SCRO on the other. 17 A. Yes. 18 Q. What I want to do -- you weren't asked about this, for 19 which I apologise, when you were asked to give your 20 statement. There has been a suggestion raised that the 21 meeting at Tulliallan, the facilitated meeting, ended 22 prematurely because of some unpleasantness that had 23 developed outwith the meeting but in the building, 24 unpleasantness among the experts. 25 Do you have any recollection of anything of that page 54 1 sort? 2 A. To the best of my recollection I think the meeting did 3 end prematurely but because no progress was being made. 4 I mean, I can recall the four experts standing in front 5 of a screen on which I think the print had been 6 projected and talking to each other about it but I think 7 that the meeting came to a conclusion because it was not 8 thought to be productive. 9 I don't have any recollection of any unpleasantness. 10 I don't think I was aware of that. 11 Q. Thank you very much. It is just your recollection. 12 The next point that I wanted to ask you about before 13 we get into the detail is just one for the record. I 14 understand that you became a Sheriff in 2005? 15 A. Yes. 16 Q. Therefore, you have ceased your appointment as Deputy 17 Crown Agent in 2005? 18 A. No, I was area Procurator Fiscal for Lothian & Borders 19 for a year before becoming Sheriff. So 2000 ... no, 20 2005 I would be Area Procurator Fiscal for Lothian 21 & Borders. So I ceased to be the DCA at the end of 22 2004. 23 Q. You mentioned in paragraph 60 of your statement, you 24 were being asked about some apparent comments in 25 relation to the change over to the non-numeric system. page 55 1 We understand the change in Scottish practice to the 2 non-numeric system to have occurred in 2006. 3 Would that, therefore, be after your involvement in 4 these matters at the Crown Office? 5 A. Yes. 6 Q. Did you have any involvement while you were in the Crown 7 Office with the change over to the non-numeric system? 8 A. I had an involvement in the sense of various discussions 9 and meetings over a number of years about the move to 10 the non-numeric standard. So, yes, I was involved. 11 This was a process that took a very long time. 12 I mean, I recall in particular having a meeting with 13 Crown Counsel to have SCRO present to them the case for 14 the non-numeric standard and to take their view on how 15 they felt -- whether it would work, what the 16 implications might be for prosecutions in the High 17 Court. So, yes, I was involved at numerous meetings 18 over the years to discuss the non-numeric standard. 19 Q. What I will do is I will put in your mind a topic and 20 then come back to it. I will give you a chance rather 21 than come at it straight with you. if you are able to 22 answer it straight away then please say. If you wish a 23 bit of time to think about it, just indicate. 24 What I was wondering was what the pros and cons were 25 really of this change to the non-numeric system from the page 56 1 Crown Office perspective and if the Crown Office had a 2 full appreciation of any practical implications of the 3 change. 4 A. Well, I'll have a stab at answering that. 5 My understanding of the non-numeric standard was it 6 was being adopted around the world and had already been 7 adopted in England and, therefore, the question was why 8 should it not be adopted in Scotland. 9 I also recall it being my understanding that in 10 terms of how the fingerprint officers worked, they 11 effectively applied the non-numeric standard, made an 12 identification and then counted or attempted to find 16 13 characteristics because that was the standard that had 14 to be applied. But in reality they were looking at the 15 non-numeric standard to actually make the identification 16 in the first place. 17 I also recall the argument that there was no science 18 to the 16-characteristic standard. It was -- in fact, 19 my vague recollection is that it was all a 20 misunderstanding. There was no justification for the 21 requirement to have to find 16 characteristics before 22 you could make a positive identification. So everyone 23 else was moving to it; there was no justification for it 24 in the first place and Scotland ought to adopt it. 25 Again, I don't think it was the Crown saying -- I page 57 1 don't think it was our initiative to say let's move to 2 the non-numeric standard. I understand it came from the 3 fingerprint community, that they thought that ought to 4 be the standard and, for my part, I agreed with them. 5 From all the information I was provided it seemed 6 perfectly sensible to adopt the non-numeric standard. 7 Q. If I can put it this way in a challenging sense, if the 8 officers were working to a non-numeric standard and the 9 16 points was an artificial threshold superimposed upon 10 it, as you say, based on a misunderstanding, some would 11 say based on fraud, then as soon as the fraud is exposed 12 one might choose to take away the artificial threshold 13 and leave fingerprint officers to get on with their own 14 practice. 15 Is that a rough understanding of the process? 16 A. Yes. I mean, I think -- and to some extent this would 17 be my personal view, I can't say it was necessarily 18 Crown Office policy or the Crown Office position in 19 relation to fingerprint evidence -- but my view was 20 always that there was a complete artificiality about the 21 sort of all or nothing approach on the part of 22 fingerprint experts, that they would either find 16 23 characteristics or it would be a negative report. My 24 own view was that the fingerprint experts should tell 25 the Crown what they'd found and if they found fewer than page 58 1 16 that satisfied them they should tell us, if they 2 found a number that did not allow them to make a 3 positive identification but it was still consistent with 4 an accused's fingerprint, then they should tell us. But 5 it this sort of it has to be absolute certainty or it's 6 a negative report, my view was always that wasn't the 7 correct approach and, like other experts, they should 8 actually be telling us what they found, whether it was 9 positive identification, probability, possibility, 10 consistent, what have you found? Tell the Crown. That 11 was my own view as to how it should be done. 12 Q. It is somewhat dangerous for me to debate with a judge 13 what the correct approach is to the law but to carry 14 that forward to discuss with you if a fingerprint 15 officer is, as with any expert, explaining to the court, 16 be it a judge sitting alone or a judge and a jury, what 17 he has seen, would it follow from the law that that 18 expert should not be expressing the conclusion but 19 should rather be laying out the facts for the judge or 20 the judge and the jury to reach their own conclusion? 21 A. Well, it's opinion evidence so I think the expert is 22 entitled to offer an opinion that this is a match. I 23 don't think -- he shouldn't just be saying I found 7 24 characteristics or 10 characteristics. I would expect 25 the expert to offer an opinion. page 59 1 Q. What I was thinking was where the expert goes on to say, 2 "In my opinion beyond reasonable doubt there is a 3 match", is the expert in expressing himself in a 4 conclusion that there is a match beyond reasonable 5 doubt, is that transgressing the line of expert evidence 6 or not? 7 A. I don't think so. I mean, other experts and forensic 8 scientists will give evidence about level of probability 9 and likelihood on a scale from 1 to 10. Now, 10 reasonable -- beyond reasonable excuse or balance of 11 probability or possibility these are just other ways of 12 describing that scale. So I don't see any reason why an 13 expert should not offer a view as to whether something 14 is beyond reasonable doubt, as opposed to probable, as 15 opposed to possible, as opposed to unlikely. 16 Q. If I can move on, before the Shirley McKie case, as an 17 experienced prosecutor, what attitude did you have to 18 the reliability of fingerprint evidence? 19 A. That it was very reliable. I had no personal experience 20 of any case in which the fingerprint evidence was found 21 to have been in any way faulty. I had, sorry, no 22 personal experience of it and the view that I would have 23 taken was that fingerprint evidence from SCRO and from 24 other bureaux could be relied on totally. 25 Q. The phrase we have seen in some contexts is that page 60 1 fingerprint evidence had been viewed as being, in 2 effect, infallible. 3 Is that a view you would have shared or did you have 4 reservations? 5 A. I don't think I could say I had reservations. I mean, 6 my view would be that, based on my experience, the 7 fingerprint experts were providing reliable evidence. 8 That was partly because they would only report anything 9 positive where they were absolutely certain. They 10 weren't reporting this is something that could be from 11 the accused or it's consistent with the accused. They 12 were only reporting if it they were absolutely certain 13 and, you know, they were applying a very high standard 14 and I always understood fingerprint evidence to be very 15 reliable. 16 But I think my view would also be influenced by 17 this: that if the Crown are saying a fingerprint has 18 been found on a window or on a safe or a knife, in the 19 overwhelming majority of cases, if not in all cases, the 20 accused person will know whether his fingerprint would 21 have been on the safe or the knife or the window and if 22 the Crown are presenting evidence saying that there is a 23 positive fingerprint match, it's difficult to conceive 24 of any case in which the accused does not immediately 25 think, "Well, wait a minute, that can't be right, I was page 61 1 never in that bank, I never touched that safe, I never 2 touched the knife". In those circumstances you would 3 expect the defence to be obtaining a second opinion. 4 So to the extent that fingerprint evidence was 5 rarely ever challenged (and I personally had no 6 experience of it being challenged), that was because, I 7 would assume, the accused was not instructing his 8 solicitor or counsel that there was some reason to 9 challenge this fingerprint evidence because, as I say, 10 the accused would know whether his fingerprint should 11 have been found on whatever it was. 12 Q. In looking at your report for my purposes I don't want 13 to look at any question of prosecution discretion or any 14 judgment you reached about whether an individual should 15 be prosecuted. I want to look though at the impression 16 you had of fingerprint evidence after your 17 investigation. I trust you understand the distinction. 18 There are certain places I do not wish to go. 19 A. Yes. 20 Q. As I understand, the case of Ms McKie -- not questioning 21 Mr Asbury just now -- she is in that area where she is 22 actually saying to anyone who will listen from the very 23 first moment, "I was not in that section of the house. 24 I was nowhere near it. It could not possibly be a 25 naturally placed fingerprint of mine in that location". page 62 1 So she's challenging the matter and, as we know, I 2 believe, Mr Graham, first instructed in respect of the 3 Asbury case as an independent expert, agreed with SCRO. 4 Secondly, we understand Mr Swann, instructed initially 5 for Ms McKie as an independent expert, agreed with SCRO. 6 Then, of course, history records that Mr Wertheim and Mr 7 Grieve disagreed. 8 So we're now looking back at matters. The McKie 9 case having taken its various twists and turns what 10 today is your attitude on fingerprint evidence and its 11 reliability? 12 A. My position hasn't changed. In following the 13 controversy in this case the Lord Advocate instructed an 14 independent check on SCRO fingerprint cases -- and I 15 can't remember the number of cases but well over 16 1,000 -- and the independent verification confirmed the 17 SCRO identifications. So my view as to the reliability 18 of fingerprint evidence did not change and has not 19 changed. 20 Q. I am now going to move on to a different topic but there 21 is a link in this different, this next topic, that links 22 back into what we have just been discussing. What I 23 want to take as my next topic is the way in which the 24 fingerprint officers involved in the Shirley McKie 25 identification came to be treated by the authorities, page 63 1 some suspended, some put on non-operational duties for a 2 number of years but if I can start with one of your own 3 documents -- for us it is code CO4065 and I think it's 4 an excerpt from a memo that you wrote to the 5 Lord Advocate I believe, 7th September 2001. I think 6 you may have the folder with you. 7 A. I do have a folder. 8 Q. If you prefer to look at it in its original form ... 9 It's an excerpt we now have on the screen of a memo 10 that you wrote dated 7th September 2001. If we could 11 just go back a page. It would seem to be, from the 12 excerpt we have, a memo written to the Lord Advocate? 13 A. Yes. 14 Q. With indeed on the right-hand side the initials that 15 would appear to be those of the Lord Advocate, CB? 16 A. Yes. 17 Q. Then Colin Boyd? 18 A. Yes. 19 Q. He has initialled it on 12th October 2001. 20 If I can come again back to the text that we have, 21 this is moving to the topic now of the issue of the 22 Crown towards the four suspended officers. 23 It's five lines in, a sentence that begins: 24 "Although we are not prosecuting these 25 officers ..."; do you see that? page 64 1 A. Yes. 2 Q. You say: 3 "... our position must be that they made serious 4 mistakes in the Asbury/McKie cases." 5 A. Yes. 6 Q. Then you go on to other matters. This is what links 7 into the previous topic. You are plainly intending no 8 disrespect. You are not qualified to say whether it was 9 correctly identified or not. You had taken advice 10 yourself from a number of experts? 11 A. Yes, principally from Durham. They were the experts 12 where I went and they were the experts with whom I spent 13 most time and they, at least at the time of writing my 14 report, had the greatest influence on my own assessment 15 of whether there had or had not been a 16 mis-identification. 17 Q. If you could move the microphone just in, if you hear 18 your voice resonate the microphone is working. If you 19 don't then there may be difficulty for others to hear 20 you. 21 Naturally in that case where one has instructed an 22 expert, even though there's a population of people 23 expressing a view, naturally one's inclination is to 24 accept the conclusion of one's own experts. 25 A. Yes. page 65 1 Q. And the experts whom the Crown instructed for the 2 purposes of your exercise were the experts at Durham -- 3 A. Yes. 4 Q. -- who gave you the opinion that Y7 had been 5 mis-identified; is that correct? 6 A. Yes. 7 Q. So, therefore, in what we're now following, is this 8 correct or is this just a phase of your thinking where 9 you moved on: is it correct to read you as now 10 proceeding on the basis that you were accepting Durham 11 and that there must have been some serious mistake made? 12 A. Well, when I submitted my report, I think my conclusion 13 was that this was a mis-identification, although I think 14 I said one could not be certain it was a 15 mis-identification. After I saw Robert Mackenzie, my 16 view shifted slightly and I think I put it at that stage 17 that I didn't now accept any of them as having got it 18 right when they were definite and we're back to this 19 question of whether it is beyond reasonable doubt, is it 20 probability, you had, in effect, two opposing camps both 21 of whom were absolutely definite (it definitely is; it 22 definitely isn't) and I think my final position was 23 somewhere in the middle, which was it may or may not be 24 but nobody's entitled to say definitely one way or the 25 other. page 66 1 Q. That was, in fact, the point I wanted to get to and ask 2 you about before we come to this series of memos about 3 the treatment of the fingerprint officers. It was 4 really that point that I wanted to ask you to consider 5 and to expand upon. 6 As, indeed, you wrote in your report that you had 7 heard fully argued both sides of the argument and the 8 one conclusion you had come to is that anyone who 9 expressed themselves 100 per cent on either side of the 10 argument had to be wrong. 11 A. Yes. 12 Q. Obviously, it's a fairly crude way of looking at it for 13 my purposes but nonetheless tends to expose a truth 14 here. 15 Emerging from that in looking at how fingerprint 16 evidence ought to be presented in court, does that shed 17 any light on the proper way fingerprint evidence should 18 be presented in court or is it simply a one-off? 19 A. I always viewed this as a one-off because in 29 years as 20 a prosecutor I'd never come across a problem with 21 fingerprint evidence and I can't actually recall anyone 22 ever challenging fingerprint evidence. The independent 23 verification exercise just confirmed that view, that 24 fingerprint evidence is reliable. But here we have this 25 one inexplicable case. It is one inexplicable case. It page 67 1 did not change my view, and still hasn't, about the 2 reliability of fingerprint evidence. 3 Q. So if I leave it with you on that basis that from your 4 experience you have tended to view this as one 5 inexplicable case rather than extrapolating beyond to 6 some wider issue with fingerprint evidence? 7 A. Yes. I mean, the HMCI investigation of SCRO clearly 8 identified certain practices that needed to be changed 9 and steps that ought to be taken to improve quality 10 assurance and it had implications, in that sense, that 11 pointed to improvements and practices but beyond that, I 12 just took it as one very unfortunate and inexplicable 13 case. 14 Q. If I leave that chapter, close that chapter, and move on 15 to the very thrust of the correspondence that you have 16 before you ... 17 You were asked by the Fingerprint Inquiry in your 18 statement to address the question of the suspension of 19 officers and, indeed, their use in criminal trials. May 20 it be fair to say that after you made your statement 21 some extra material came to light that you have been 22 provided with? 23 A. Yes. 24 Q. You have it in a paper form, in a folder, that I am now 25 about to look at? page 68 1 A. Yes. 2 Q. You have had an opportunity to look at the material? 3 A. Yes, I have. 4 Q. It starts with the document I have just looked at on 5 7th September 2001. Perhaps if I fill in the dates that 6 precede this and, again, if I make an error just let me 7 know but I've done the best I can to cross-check. 8 I understand that from 3rd August 2000 four 9 fingerprint officers were suspended, those were the 10 original four signatories to the Ms McKie Y7 11 identification? 12 A. 3rd August ...? 13 Q. 2000. 14 On I think 14th August 2000 was the Tulliallan 15 meeting. Then shortly after Tulliallan, in 16 September 2000, Mr Mackenzie and Mr Dunbar were moved to 17 non-operation duties. Are you familiar enough, if not 18 with the dates then at least the facts? 19 A. Yes. 20 Q. You yourself submitted your report in July 2001? 21 A. Yes. 22 Q. With Lord Advocate -- and, again, I'm just putting this 23 in as a date -- the Lord Advocate in August 2001 24 deciding that there should be no proceedings against the 25 officers. page 69 1 A. Yes. 2 Q. Therefore, what we see on screen on 7th September is 3 you, in effect, picking up the baton at that point. A 4 decision has been taken not to prosecute the four 5 officers and the question is what does the Crown do 6 next, in particular about using these officers? 7 A. Yes. I think the Lord Advocate had raised that with me 8 when he had instructed no proceedings and I think his 9 note to me said there's still the issue of our attitude 10 to the use of the four officers. 11 Q. Perhaps just for completeness if you look on the screen 12 CO0028; is this the note? 13 A. Yes. 14 Q. You at that time were the DCA, the Deputy Crown Agent? 15 A. Yes. 16 Q. Perhaps if we look at the next page. The final 17 paragraph of that memo, is what I have described as the 18 baton being passed on, so there will be no proceedings, 19 though the Lord Advocate wrote: 20 "There are however other issues about how we handle 21 the decision, who we inform and what we do about using 22 these officers in the future. These will be discussed 23 separately." 24 A. I presume -- that's 21st August. I presume this minute 25 from me is, as you say, taking up that issue. page 70 1 Q. I'm certainly happy to proceed on the basis that that is 2 indeed what it is doing. I may have an unedited version 3 of it somewhere but the one that I happen to have here 4 is edited so I don't even know what's in the first few 5 paragraphs and I'm not going to ask you. 6 A. Well, I wouldn't be able to say. 7 Q. So if we accept that this is the baton being passed or 8 taken up, can we go back please to CO4065. It is the 9 second page. 10 What I am looking at is the second paragraph that is 11 on that page, in particular the observation about 12 muddying the waters. 13 A. Yes. 14 Q. Can you explain what the practical problem that was seen 15 about simply restoring these officers to their position 16 in the witness box in criminal trials? 17 A. Just the potential that if they were giving evidence for 18 the prosecution that their reliability or credibility 19 might be attacked by the defence simply because of their 20 perceived failure in the McKie case. 21 Q. What does not directly emerge out of the documents you 22 have been looking at, if I stand back for the moment, 23 you would be aware that a number of Scottish Criminal 24 Records Office fingerprint officers agreed with the four 25 that you were primarily investigating. page 71 1 A. Yes. 2 Q. Were you also aware that the Crown had not taken a 3 decision to stop using the other concurring officers? 4 A. Yes. 5 Q. It might be thought that there is an inconsistency in 6 the prosecution and Crown as a prosecution authority to 7 use some of a number who were of the same view as 8 witnesses in future cases while deciding not to use the 9 four principal officers. 10 Can you explain why the decision was taken to treat 11 separately some of that larger number? 12 A. That raises the question as to whether anybody actually 13 addressed that point. I don't recall anyone ever posing 14 the question: should we be adopting the same approach to 15 the other experts? It wasn't the Crown Office that 16 suspended the four SCRO officers. That was done by 17 SCRO. They were suspended. They were, therefore, not 18 being used. It wasn't a live issue in relation to the 19 other officers. 20 Now, that begs the question as to whether it should 21 have been but it simply wasn't a live issue. My own 22 view is that if it been raised it would have been 23 possible to distinguish between the four and the others 24 because the others' involvement was far more peripheral. 25 There was certainly -- there was no allegation of page 72 1 criminality against the other officers and their 2 involvement had not attracted the same level of 3 notoriety as had the involvement of the four. 4 The concern here is about, as I put it, the defence 5 taking opportunity to muddy the waters. I don't really 6 think that would have been likely or productive for the 7 defence in any case, other than one involving one of the 8 four. That's my view now. I mean, I wasn't addressing 9 it at that stage. It simply wasn't a live issue, what 10 should the Crown's attitude be to the other SCRO 11 officers. It just didn't come up. 12 Q. I think a reason for asking this question, in fact, what 13 you have perhaps overlooked is if you look at 14 paragraph 51 of your own statement, there is a 15 quotation, admittedly in a memo from your predecessor, 16 Sheriff Crowe, to the Lord Advocate. It is at the foot 17 of page 11 to the top of page 12. 18 A. Yes. 19 Q. These happen to be memos that predate the decision by 20 the Lord Advocate not to prosecute. This is before the 21 baton was passed. 22 A. Yes. 23 Q. Mr Crowe is in fact reasoning in the two memos that you 24 refer to that there should not be proceedings and I can 25 take you to those to let you see those. page 73 1 A. Yes. 2 Q. But then there is at least a straw in the wind by him 3 saying that there is a problem about other officers 4 because the quotation that you have set out -- and my 5 study of it is that the quotation is accurate -- is that 6 Mr Crowe wrote: 7 "If they were reinstated their evidence would always 8 be subject to or liable to challenge yet we know other 9 SCRO officers of a similar view continue to work at the 10 organisation." 11 So he does seem to, at least, be acknowledging the 12 problem of differential treatment of these individuals. 13 A. Yes. 14 Q. So the thought was at least there, it would seem? 15 A. Yes. 16 Q. I know from having read some material Mr McKie has 17 produced, which is not in the bundle for you -- by 18 produced I mean Mr McKie exhibited to the Fingerprint 19 Inquiry, that he was involved in correspondence 20 concerning other like-minded officers in the Scottish 21 Criminal Record Office who continued to give evidence. 22 I can't remember -- I will be told no doubt in due 23 course -- whether that was going to the Scottish 24 Executive as the authorising authority under the 1995 25 Act or going to Crown Office or possibly copied between page 74 1 the two. 2 Is that something you don't have a recollection of? 3 A. No. I'm just looking here at one of the letters from 4 Mr McKie to the Lord Advocate in the bundle and the 5 question is he asking the Lord Advocate is whether the 6 Crown will continue to rely on the expert testimony of 7 the four SCRO fingerprint experts and it doesn't 8 actually raise a question about any of the others. 9 I mean, all I can say at this stage is that the live 10 issue that I was addressing at that time was what to do 11 about the four who had been suspended. I quite accept 12 the point had obviously been made that there was 13 arguably a problem or potentially a problem with the 14 other SCRO officers but I don't think it was of the same 15 scale and I think, as I have said, the likelihood of 16 their involvement being used to muddy the waters was 17 far, far less. 18 Q. I don't really wish to press it because I think one of 19 the complications is that we're going back a number of 20 years. You have obviously studied -- and I am grateful 21 to you -- very closely the memos you have been asked to 22 look at, while I am conscious there may be others. 23 Really what I am coming to is the very point that you 24 looked at, whether there is a pragmatic reason for 25 treating these four separately rather than a reason in page 75 1 principle, the pragmatic reason being that these four 2 happen to be particularly notorious, if I might say 3 that, in the legal community and therefore more likely 4 to be the subject of a collateral attack on their 5 reliability. 6 A. Yes. 7 Q. Is that a fair summary? 8 A. Yes. There always were two considerations: one was 9 whether they had actually got it wrong and, therefore, 10 whether there was legitimately a question about either 11 their competence or their honesty. Clearly if one were 12 to take the view that they had been dishonest then under 13 no circumstances should the Crown have been using them 14 again. In a sense, my investigation never really 15 answered that question. It was still there. It was the 16 elephant in the room: are they dishonest or incompetent 17 or were they incompetent in this case. If the answer to 18 that is yes, then the Crown should not have been using 19 them for that reason. 20 Separately, there is this issue of the risk that it 21 poses to a prosecution: if you use them, whether or not 22 they were right or wrong, the ability of the defence to 23 muddy the waters by challenging them on the basis of 24 their notorious involvement in the McKie case. 25 So there are two considerations and, depending on page 76 1 what view you take about the identification, you could 2 say they should not be used for that reason because they 3 got it wrong or you could say they should not be used 4 because why should the Crown risk a successful 5 prosecution by allowing the defence to muddy the waters. 6 Q. Let us just proceed on a hypothesis because the Inquiry 7 will come in due course to the question of whether they 8 got it right or got it wrong because you yourself have 9 said just a little bit earlier that though you would 10 tend to give precedence to the advice you received from 11 Durham you did hear and attach some weight to the 12 opposing view, so you were left with the view there were 13 arguments either way. 14 A. Yes. 15 Q. Would it be fair, therefore, to say, if one pressed you, 16 you personally were undecided about whether they had got 17 it wrong or not or did you accept the advice you got 18 from Durham? 19 A. As I think I say somewhere else, I was most influenced 20 by the last expert I spoke to so there would be stages 21 at which I was satisfied they'd got it wrong and there 22 would be stages at which I thought they actually got it 23 right and the safest course was to adopt was somewhere 24 in between. 25 I think these documents disclose that at various page 77 1 stages I indicated that I personally would have been 2 happy for them to continue to submit reports to the 3 Crown. I think that would be consistent with my not 4 having reached the conclusion that they were definitely 5 dishonest or incompetent in this case, which then leaves 6 the concern about, irrespective of whether they got it 7 right or wrong, there is this notoriety attaching to 8 them and the McKie case and it raises the possibility of 9 the defence challenging them on the basis of the McKie 10 case and why should the Crown take that risk. 11 Q. My reason for dividing it up in this way is from the 12 conversation we're having just now is there are two 13 possible criteria: the first would be simply whether 14 they got it wrong, if one assumes they got it wrong they 15 should not give evidence again -- 16 A. And the reasons for that. If they got it wrong 17 dishonestly then that -- 18 Q. If you will forgive me the second criteria is the 19 question of their honesty -- sorry, associated with -- 20 yes, I see. 21 The third criteria is of course this whole question 22 of muddying the waters, whether they got it right or 23 not. 24 A. Yes. 25 Q. If one is simply looking at the base proposition they page 78 1 got it wrong and the Crown had evidence they got it 2 wrong, consistency would suggest that you should not 3 lead as witnesses anyone who shared that same view, if 4 an error was enough to disbar someone or disqualify 5 someone? 6 A. Well, they got it wrong having examined it on more than 7 one occasion and knowing that others were disputing it; 8 so their getting it wrong was worse than individuals who 9 only looked at it once. So the degree of culpability 10 would be far less on the part of the other experts. 11 Q. Again, stretching it or moving to this point that we 12 know there are other individuals who do share the same 13 view, as you say, by degree, would the key criteria that 14 was operated for the Crown be this question of muddying 15 the waters, that the fact of notoriety of these 16 individuals as publicly associated with the view? 17 A. Yes, although the key consideration should be the 18 question of honesty or dishonesty. So the reason for 19 getting it wrong is, I think, of paramount importance. 20 If it was dishonesty, then the experts should clearly 21 not be used again: end of story. If it was a mistake, 22 then I think you would have to set that against their 23 career of not making mistakes and one mistake may be 24 excusable and, if it's an honest mistake, that would not 25 necessarily of itself justify not using them again, page 79 1 except you then have this problem about what will it 2 actually do in individual cases where they are called 3 upon to give evidence for the Crown and why take the 4 risk that those cases might be prejudiced. 5 Q. That would then result in at least one possibility; 6 namely, that you would have to await the outcome of the 7 civil proceedings where questions of honesty were being 8 debated. 9 A. Yes. 10 Q. And that was a consideration? 11 A. Yes. 12 Q. Indeed, that was a main consideration for the Crown? 13 A. Yes. I think initially it was waiting the outcome of 14 the disciplinary proceedings and then it was awaiting 15 the outcome of the civil proceedings. 16 Q. So that we restore the conversation that we have had -- 17 it is to some extent somewhat abstract -- you mentioned 18 that you yourself had contemplated accepting reports 19 from these individuals. 20 Now, for my purposes, the reference is CO4066. 21 There is a memo in March 2002. It looks as if it is the 22 second page of that. In fact, if we move on through ... 23 A. Yes. 24 Q. And again carry on. It is page 4, the discussion. Is 25 this a memo that you wrote? page 80 1 A. Yes. 2 Q. In the second paragraph under "discussion", do you 3 indicate that there are two options. One would be to 4 continue to accept reports? 5 A. Yes. 6 Q. Did you in fact go on to recommend that the Crown do 7 continue to accept reports from these individuals -- at 8 the foot? 9 A. Yes. 10 Q. Does that help to bring back into perspective what you 11 yourself were thinking, that you were still willing to 12 accept reports from these individuals? 13 A. Yes. 14 Q. Again, would it therefore be that the main consideration 15 that's running is the fact that there are unresolved 16 questions and this question of muddying the water, 17 rather than you yourself having any substantial doubts 18 about them? 19 A. Yes, I think so. The problem with all of this was that 20 my investigation was not a judicial determination of 21 whether they had or had not got it wrong and I think I 22 always wrestled with a difficulty over the weight that 23 should be coming to my own conclusions. I mean, what 24 should we therefore do with my conclusions to the extent 25 that my conclusions were clear and not slightly page 81 1 confused. 2 I thought -- I always found it difficult to conclude 3 that just because I had doubts about the identification 4 that was a justification of itself for not using them 5 again. 6 Q. So far as there were doubts, would it be fair to say 7 that having viewed the correspondence that you had, that 8 we're about to survey in your evidence, that that doubt 9 really persisted not just in your own mind but really 10 within the Crown Office throughout the rest of your 11 period as the Deputy Crown Agent down to 2005 with the 12 Crown Office not really coming to a positive decision 13 about these officers? 14 A. I think from that stage onwards it was always a question 15 of let's wait and see what happens in the disciplinary 16 proceedings or in the civil proceedings because it was 17 possible the civil proceedings, in particular, would 18 result in a judicial determination of whether there had 19 been incompetence or something worse. 20 Q. As you say, your own exercise had been for its own 21 purposes but was not a judicial determination and the 22 Crown was really not taking a positive decision about 23 these individuals pending a proper judicial 24 determination? 25 A. Yes. My exercise never required to reach a definitive page 82 1 view on whether there had or had not been a 2 mis-identification. The only question I was posing and 3 answering was whether there was sufficient to justify an 4 prosecution and whether there was a realistic prospect, 5 and there was sufficient doubts to indicate that a 6 prosecution was not a realistic option. But I didn't 7 actually have to answer the question definitively is 8 this or is this not a mis-identification. I simply had 9 to note that the experts were not in agreement. 10 Q. If I can then, I will go through the rest of this 11 correspondence reasonably quickly. The next one I am 12 turning to is CO4069 which is a memo I think dated 27th 13 March 2002. 14 A. Yes. 15 Q. It is from the Private Secretary of the Lord Advocate to 16 yourself as the Deputy Crown Agent indicating that the 17 Lord Advocate had decided that he does not need to take 18 a judgment at present: 19 "Matters currently rest with SCRO and we should wait 20 for them." 21 A. Yes. 22 Q. And by "matters currently rest with SCRO" is the 23 Lord Advocate indicating the disciplinary proceedings 24 had to be dealt with first? 25 A. I assume so. page 83 1 Q. If I tell you -- and I am sorry, the date is -- 2 A. No, it can't be the disciplinary because they seem to 3 have -- the Panel issued its decision on 19th March. So 4 it must be the civil proceedings. 5 Q. I had a reference to the Black Report having reached a 6 conclusion in April or May 2002. There may have been 7 some other matter outstanding. 8 A. I'm looking at the minute of 21st March and the 9 paragraph headed "disciplinary action". I don't know 10 what number. It's the previous document. 11 Q. If we can try -- if you give me a second, it's one of 12 two. I will inevitably choose the wrong one. If we go 13 to 4068 -- I was right, I would choose the wrong one ... 14 4067 in that case. Is this the memo of 21st March 15 that you were looking at? 16 A. No, it's the one that -- it's the four-page memo where I 17 made the recommendation about accepting reports -- 18 Q. Sorry. In that case, it is 4066 and it will be a 19 letter. Which page do you wish? 20 A. Well, it's section 3 which is the third page. Under 21 disciplinary action, second sentence: 22 "The results of the independent investigation were 23 submitted to an Independent Panel established by the 24 Police Board. The Panel issued its decision on 25 19th March. Their conclusion was that there was no page 84 1 matters of misconduct or lack of capability." 2 Q. So 19th March the reinstatement decision had been taken. 3 Perhaps there's one other document that may assist. If 4 I move on to May 2002, if I go to 4078, it's a memo of 5 9th May 2002 and then we'll move on. It's 9th May which 6 is 4078. Do you have 9th May? It seems to indicate 7 that discussions are ongoing. Then if I take the next 8 one, which is 4079, this should be by you dated 24th 9 May 2002. 10 A. Yes. 11 Q. We may need to look at the second page. Yes, it is a 12 memo by you dated 24th May 2002 -- if we go back to the 13 beginning of it -- to the Law Officers, the 14 Lord Advocate and the Solicitor General with the 15 manuscript note of the Lord Advocate saying he agrees 16 with you. 17 A. Yes. 18 Q. As I understand basically the thrust of this, what it 19 comes to is that you are indicating that the Crown 20 should await the outcome of the civil proceedings? 21 A. Yes. 22 Q. Is that correct? 23 A. Yes. 24 Q. However, what I am interested in, just put for your 25 comments, the last paragraph on that page. What you're page 85 1 aware of -- would this fair -- is that the decision has 2 been taken to reinstate the officers. So they are going 3 to be reinstated. SCRO is going to have to assess their 4 competence at the end of what is called a re-education 5 exercise. SCRO will therefore recommend them as fit for 6 work or not and would then report the matter to Crown 7 Office as to their fitness to return to giving reports. 8 A. Yes. 9 Q. At that point, Crown Office would say, in effect, "Thank 10 you very much but there's nothing we can do pending the 11 outcome of civil proceedings". 12 A. Yes. 13 Q. Why wasn't that just said to the officers really just 14 upfront from the outset rather than the officers being 15 induced to understand that if they completed this 16 re-education programme they would be restored to 17 frontline duties? 18 A. I don't know what they were told upfront. 19 Q. If we move to the next document which I have which is 20 4081 just on my list -- I am skipping over some but, 21 please, if there's a problem just let me know -- this is 22 31st May 2002, it is from Harry Bell (who was then 23 Director of SCRO) to yourself and you see that he's 24 putting something to you for comment and consideration: 25 "As you are aware, SCRO employed the services of an page 86 1 employment law specialist company throughout the period 2 of the SCRO experts' suspension. The future use of the 3 officers as expert witnesses is a matter specifically 4 referred to by them. They were clear in their statement 5 that the officers could justifiably claim constructive 6 dismissal if SCRO were to actively restrict their area 7 of expertise by preventing them from being available to 8 give expert evidence. It was recognised that the Crown 9 Office held the list of expert witnesses and while the 10 employment specialist were of the view that there may be 11 some grounds for a third party in the form of the Crown 12 as a customer stating that they did not wish to receive 13 such evidence from the officers, the decision thereafter 14 would leave SCRO open to challenge of constructive 15 dismissal as there was no evidence of criminality, 16 misconduct or lack of capability. 17 "The employment law specialist was clear that should 18 the SCRO officers proceed with a constructive dismissal 19 claim, the Crown would be called to explain their 20 involvement in that decision-making process. I would 21 therefore suggest that you may wish to consider the 22 following ... " 23 Then it is in quotations: 24 "'The Crown is aware that the officers are involved 25 in a return to work strategy. In light of the ongoing page 87 1 civil litigation and the other relevant circumstances, 2 it is considered it would be inappropriate to make any 3 direct comment on this matter at this time.' 4 "While the officers are currently on the list of 5 expert witnesses, as director, I would consider it 6 appropriate that when the officers are ready or indeed 7 are being considered for evidential purposes I would 8 meet with the Crown to address issues relevant at that 9 particular time." 10 Assuming that's what he writing to you, and one 11 assumes that he is suggesting a quote so that that is 12 for public consumption, the suggestion would appear from 13 this what what's happening is that for an employment law 14 perspective, it's being suggested that these individuals 15 would undergo retraining and assessment by the Board; 16 meantime, the Crown Office is not going to comment. 17 When the time comes that SCRO will apply to the Crown 18 Office for use of these individuals -- that's what the 19 letter's suggesting? 20 A. Yes. 21 Q. But the reality is it's already been decided that these 22 individuals will not be used, that no matter what their 23 re-training they will not be used again pending the 24 outcome of the civil proceedings? 25 A. Yes. I mean, I can't remember whether it was page 88 1 anticipated at that stage that the civil proceedings 2 would have been concluded before the re-education 3 process would have come to an end. It certainly wasn't 4 expected the civil proceedings would take as long as 5 they did. 6 Q. We will look at something along those lines in a moment 7 because the next document is 27th January 2003 that I'm 8 looking at, which is 4084. This is you writing 9 to -- sorry, it's dated 27th January 2003. 10 A. Yes, I have it. 11 Q. And you are writing an e-mail or there is an e-mail from 12 you to a James Laing. Who is Mr Laing; do you know? 13 A. I presume somebody in the Justice Department. 14 Q. Because what you say in the first full paragraph, the 15 first lengthy paragraph, is: 16 "The return to work programme is a matter for SCRO. 17 The Crown's position is that SCRO should approach us as 18 and when they are satisfied that these individuals 19 should be allowed to undertake work which would involve 20 them giving evidence in court. At that stage, the Crown 21 will indicate whether we would have any concern about 22 the reports being submitted from these witnesses." 23 In a sense, that's consistent with what has gone 24 before. But then you add: 25 "I have indicated to SCRO informally that the page 89 1 Crown's position is likely to be that we would wish all 2 the outstanding legal proceedings to be concluded before 3 making a decision on whether we would be prepared to 4 accept reports." 5 A. Yes. 6 Q. And that's fair enough. That is simply the way it's 7 being done privately. 8 A. Yes. 9 Q. But that's not, it would seem, what's being said 10 publicly. 11 A. Well, I'm afraid you are confusing me. The Crown 12 position was that we would not make a decision until the 13 civil proceedings were concluded and I think the Crown's 14 position remained constant throughout. Now, I'm not 15 quite sure where you say there is a different public 16 line. 17 Q. The different public line is indicated by the preceding 18 letter from Mr Bell, which is the 31st May 2002 -- which 19 for us is 4081 -- that the public line is, and it's his 20 suggestion, the public line is simply that the Crown is 21 just not going to go -- though it is conscious of civil 22 litigation, the position is the Crown's not commenting. 23 A. Yes, that's his suggestion. I don't know what the 24 public line was. 25 Q. I will be corrected if I'm wrong by the officers, but page 90 1 I've not seen in any of their statements a suggestion 2 that they knew from the outset of undertaking this 3 re-education programme that there was no prospect of 4 them giving evidence until the civil proceedings were 5 concluded. The impression was that they had 6 anticipation of returning to frontline duties when they 7 had completed their re-education programme. 8 A. I can't comment on that because I don't know what SCRO 9 were saying to them. 10 Q. If we look through then as matters played out and 11 turn -- I am sorry, sir, I have just noticed the time. 12 THE CHAIRMAN: I was going to ask. I take it you will be 13 longer. 14 MR MOYNIHAN: Not too much longer but it is an appropriate 15 point to adjourn. 16 THE CHAIRMAN: I will rise now. We will sit again at 1.50. 17 (1.00 pm) 18 (Luncheon Adjournment) 19 (1.50 pm) 20 MR MOYNIHAN: I think what I was just going to turn to was 21 the conclusion of this particular chapter where there 22 was an exchange of correspondence that concluded matters 23 as one might have anticipated; namely, that when the 24 four officers had concluded their re-education, SCRO 25 certified them as suitable to return to full duties and page 91 1 the Crown Office response was that they would have to 2 await the outcome of the civil proceedings. Would that 3 be a fair presentation? 4 A. Yes. 5 Q. Just for others, I am looking at a memo, which is 6 12th February 2004 and is CO4086. You may also just 7 bring up by the side 4087. The first one, 4086, is 8 simply the formal intimation by the Scottish Criminal 9 Record Office in 2004 that the officers had completed 10 their re-training and were fit for full duties. 11 Correct? 12 A. Yes. 13 Q. Then as I said the response from Crown Office on 14 23rd February by yourself was that, as you say in the 15 third paragraph: 16 "As you might anticipate, the one immediate concern 17 I have is the civil action is still unresolved ... and 18 awaiting a report." 19 A. Yes. 20 Q. Then proceeding beyond that if I take you to 21 10th March 2004, CO4089, this is now, in effect, later 22 on in that same year, your recommendation is that Crown 23 Office continue to await the outcome of the civil 24 proceedings and in particular at that stage an expert 25 report the Scottish Executive had commissioned from page 92 1 a John McLeod? 2 A. Yes. 3 Q. And if I look next 4090 -- it may be immediately the 4 next one-- 5 A. Yes. 6 Q. It comes from a Chris Orman. We see it's from the 7 Lord Advocate's private office? 8 A. Yes. I think he was an assistant private secretary. 9 Q. It indicates the Lord Advocate has seen your minute we 10 just looked at, agreed with your suggestion and, as you 11 say, no-one was anticipating it might take so long. The 12 Lord Advocate, however, didn't wish matters to be 13 delayed too long? 14 A. Yes. 15 Q. That is followed by the next document 12th March 2004, 16 4091, by you and, please, since this is an unsigned copy 17 I don't know whether this was despatched or not but it 18 would certainly bear to be a letter from you to Mr Bell, 19 again giving formal confirmation that, in effect, you 20 are awaiting that civil proceeding and in particular the 21 independent expert report. 22 Would you know if that letter was sent? 23 A. I would imagine it was. I've no reason to suppose it 24 wasn't. 25 Q. Unfortunately, at least for my purposes, we seem them to page 93 1 jump -- that's March 2004 -- in effect we jump to 13th 2 December 2005, 4093, with a letter in fact from 3 Mr Bell's successor as Director, a Mr McLean, to your 4 successor as Deputy Crown Agent, a Mr Brisbane, and 5 matters have just not progressed at all? 6 A. Yes. 7 Q. I will not take you in the correspondence really beyond 8 this. So that's as matters were running in relation to 9 that. 10 Can I ask you the final point in relation to this is 11 just to clarify one thing that is mentioned from time to 12 time. There is mention of a Crown Office list of 13 witnesses. 14 Have you seen that in some of the correspondence? 15 A. Yes, I've noted that from some of these documents. 16 Q. Is that a misunderstanding? 17 A. That would be my understanding. The Crown Office 18 doesn't have or didn't have, and I presume still doesn't 19 have, a list of experts. There are forensic scientists 20 and others, fingerprint officers, who are authorised 21 under the 1995 Act, Criminal Procedure (Scotland) Act, 22 and that's done by the Justice Minister. But it's not a 23 Crown Office list of experts, as far as I know. Well, 24 I'm sure I would know but I'm not aware of any Crown 25 Office list. page 94 1 Q. So there may in fact simply be a misunderstanding, even 2 among those who ought to know who associate, 3 authorisation under the 1995 Act, first of all, with the 4 Crown Office as the responsible authority rather than 5 Scottish Ministers and, therefore, refer to it as a 6 Crown Office list when in fact all it is is 7 authorisation under the Act by Scottish Ministers? 8 A. Yes. 9 Q. You are also quite straightforward in paragraph 57 of 10 your statement in addressing the fact that the question 11 of authorisation of these officers under the 1995 Act 12 seems not to have been specifically considered on the 13 basis of it would have been academic because the Crown 14 Office was not proposing to use them as witnesses for 15 the time being at any rate. 16 A. Yes. 17 Q. Is that a fair summary? 18 A. Yes. 19 Q. Would you even know if there was a procedure in place in 20 connection with authorisation of witnesses under the 21 1995 Act to have their competence and authorisation 22 reassessed? 23 A. I'm not aware of it. There may have been. Frankly, I 24 would doubt it. I don't think I was aware of any 25 procedure to withdraw authorisations. I don't think the page 95 1 Act makes provision for it; it simply makes provision 2 for granting authorisations. 3 Q. Would you accept that it is one possible matter that 4 might be considered, the fact that the officers, on the 5 face of it, have had their right to practice their 6 profession to its full extent in court in suspense, as 7 we see it from August 2002 through December 2005, as you 8 have said the dilemma is there is no ability to have a 9 judicial determination as such and, in fact, where they 10 might get some form of determination (namely, 11 consideration of the authorisation under the Act), there 12 is, in fact, no procedure and they are kept in limbo? 13 A. Yes. The civil case took a very, very long time and 14 that was regrettable but the civil case had potential to 15 provide a judicial determination which was either a 16 positive or negative from their perspective and the view 17 that I certainly took throughout this matter was that to 18 reinstate them when there was a possibility that a court 19 might find them to have been negligent or dishonest was 20 simply not appropriate. 21 Q. But equally, for example, if the Crown had had to, which 22 it didn't, proceed through some disqualification 23 procedure, that may also have served as a means of 24 having a determination of some of the issues that arose? 25 A. Yes. page 96 1 MR MOYNIHAN: Thank you very much. I have no further 2 questions. 3 THE CHAIRMAN: Miss Galbraith, do you have any application 4 for cross-examination? 5 MISS GALBRAITH: Yes, sir. There are four matters that I 6 would seek to ask this witness about certainly. Three 7 have not been canvassed by Counsel to the Inquiry. 8 Those are: firstly, regarding Malcolm Graham and the 9 consideration that was given to him during the 10 investigation process; secondly, really a short point 11 regarding criticisms made by Peter Swann and Malcolm 12 Graham in relation to the other independent experts; the 13 third matter again is a very short point relating to the 14 culture at SCRO at the time. It's a matter raised by 15 the witness in his report. Lastly, I have some 16 questions regarding the conclusions of the report, in 17 particular with regard to the mis-identification of the 18 mark. 19 THE CHAIRMAN: Yes. That's the report that Sheriff 20 Gilchrist prepared that you are referring to? 21 MISS GALBRAITH: Yes, sir. 22 THE CHAIRMAN: Thank you. 23 MISS GRAHAME: May I make a comment please? I wonder if I 24 may make a comment at this stage? 25 THE CHAIRMAN: Yes. page 97 1 MISS GRAHAME: In light of the final request by 2 Miss Galbraith regarding the conclusions of the report, 3 I'd simply wish to say at this stage that the 4 conclusions of the report relate to whether proceedings 5 ought or ought not to be taken against SCRO officers. 6 Now this is a matter that has been raised previously 7 by myself with the Inquiry and my position has been and 8 remains that this is not within the Terms of Reference. 9 It is noted that this was specifically not covered in 10 the examination-in-chief by my learned friend, 11 Mr Moynihan. It's also specifically not referred to 12 within the opening statement by the Inquiry team because 13 it's understood it's not within the Terms of Reference. 14 So I would suggest -- 15 THE CHAIRMAN: If I can interrupt you there, I understood -- 16 so that I get it clear in my own mind -- the conclusion 17 was that there should be no prosecution. 18 Is that the conclusion that you're referring to? 19 MISS GRAHAME: Yes. 20 THE CHAIRMAN: I see. That, of course, is a decision that 21 is made -- 22 MISS GRAHAME: It is within the prosecutorial discretion. 23 THE CHAIRMAN: Yes, but I'm not sure that I understood that 24 the actual conclusion was being questioned but I will 25 just clarify that with Miss Galbraith. page 98 1 MISS GALBRAITH: Yes, sir. The point really relates to what 2 the conclusion was in terms of the mark being a 3 mis-identification or being mis-identified. That is 4 contained within the conclusion section of the report. 5 THE CHAIRMAN: Yes. 6 MISS GALBRAITH: I think that the witness today has 7 indicated now perhaps a different position and I really 8 wanted to go over that with the witness to clarify his 9 position at the time with regard to whether or not mark 10 Y7 was mis-identified. 11 THE CHAIRMAN: It is quite a narrow gap between that and the 12 decision whether or not to prosecute. I mean, that is 13 certainly not something in my view that can be raised in 14 the Inquiry. 15 The decision to prosecute or not is one for the 16 Lord Advocate and I don't propose to pass any comment 17 or, indeed, to investigate his decision or the decision 18 made on his behalf. 19 MISS GALBRAITH: I entirely accept that, sir. The approach 20 I was proposing to take was that my interpretation of 21 the thrust of Sheriff Gilchrist's report is that there 22 was a mis-identification of the mark but it's whether 23 that mis-identification would thereafter merit any 24 criminal proceedings and I certainly wouldn't seek to 25 address that matter. But it's quite simply whether or page 99 1 not in his view at that time the mark was 2 mis-identified. In my submission, it being 3 mis-identified would not automatically justify criminal 4 proceedings. 5 THE CHAIRMAN: I think you can certainly ask the witness his 6 opinion of whether there had a mis-identification or not 7 on the evidence that he had available to him. But 8 beyond that, then you mustn't go. So, subject to that, 9 if you deal with the points that you wish that you 10 raised with me. 11 Cross-examined by MISS GALBRAITH 12 Q. Sheriff Gilchrist, if I can ask you firstly about your 13 involvement with Malcolm Graham, I understand that 14 during the course of your investigation you met with 15 Mr Graham, although you don't remember that meeting now. 16 In speaking to Mr Graham, this was in the context of 17 you considering what evidence may be relied on at any 18 future prosecution; is that correct? 19 A. Sorry, I'm not sure I follow the question. Why was I 20 speaking to Mr Graham? 21 Q. That is probably a simpler way of approaching it. 22 A. Because I was investigating whether there had been a 23 mis-identification. That was the first question I had 24 to address. 25 THE CHAIRMAN: I am not sure if we can hear you properly. page 100 1 A. I was investigating whether there had been a 2 mis-identification and then, secondly, if there had, why 3 had there been a mis-identification. Malcolm Graham was 4 an expert who had a view or had expressed a view as to 5 whether this was or was not a correct identification, so 6 he was a witness who had evidence that was relevant to 7 the matter that I was investigating. 8 MISS GALBRAITH: Mr Graham produced a report for the trial 9 against David Asbury, although it is understood that at 10 the trial of Mr Asbury that fingerprint evidence itself 11 was not disputed. 12 Would you agree with that? 13 A. Yes. 14 Q. Would you also agree that at the time that report was 15 completed, although print Y7 and the attendance of 16 Shirley McKie at the house was in issue, it was 17 peripheral to the case against Mr Asbury at that time? 18 A. Yes. 19 Q. Did you look at the report that was completed by 20 Mr Graham? 21 A. I assume so. I don't at this stage now remember. 22 Q. If I can just ask you briefly to have a look at 23 reference number DB0201, we can see that bears to be a 24 report on the examination of fingerprints in connection 25 with the case of HMA v David Asbury and that bears to be page 101 1 by Mr Graham. 2 Do we see that the date of the report at the bottom 3 of the page on the bottom right-hand side, probably in 4 the small font, bears to be 8th May 1997? 5 A. Yes. 6 Q. If I could ask you please to look at the third page of 7 that report, if we look at the second paragraph, which 8 is the paragraph where Mr Graham considers print Y7, he 9 states that: 10 "Book marked L contains two actual size photographs 11 of fingerprints marked Y7 on a doorframe. Both show 12 exactly the same fingerprint. One is dated 16th January 13 1997 and the other is dated 18th February 1997. The 14 fingerprint is a fragment of a tip of a right thumb." 15 Do you see that? 16 A. Yes. 17 Q. Just for the sake of completeness, could I ask you also 18 please to look at production CO2755, I think with the 19 reference number CO, it will be Crown Office documents 20 provide to the Inquiry by Crown Office. 21 Would you agree that that would appear to be the 22 same report? 23 A. Well ... 24 Q. I appreciate -- 25 A. Yes, but I haven't read it. I mean, I didn't read it page 102 1 just now in sufficient detail to say that it's identical 2 or not. 3 Q. No doubt if it's not, it will be raised. It's really 4 just to clarify with you that Crown Office had this 5 document and, again, if you look at the date on the 6 bottom right-hand corner it would appear to be 7 23rd June 2000. 8 A. Yes. 9 Q. Does even just seeing that excerpt from the report, does 10 that help your memory any as to whether you saw that 11 report? 12 A. No, not at all. I would have seen it if it was a 13 production that was obtained by the Tayside Inquiry and, 14 if not, I might have seen it within Crown Office papers 15 if it was within -- if either of these reports were in 16 Crown Office papers. But I don't know. I don't 17 specifically remember seeing them. 18 Q. The reason that I read out that particular excerpt is 19 that Mr Graham was noting that the mark is of the right 20 thumb. 21 Would you like to see -- 22 A. Yes, I can recall reading that on the earlier document, 23 yes. 24 Q. The SCRO experts were of the view that it was of the 25 left thumb? page 103 1 A. Yes. 2 Q. Do you see that? 3 A. Yes. 4 Q. Were you aware of that difference when you considered 5 the matter? 6 A. I simply do not remember. 7 Q. Do you think that would have been something that you 8 would have considered significant when you were weighing 9 up the evidence of Mr Graham? 10 A. If -- well, if I had been aware of it and had -- aware 11 of it in the sense of having seen the report and having 12 noted he was talking in the reports about the right 13 thumb, I would no doubt have raised it with him. But I 14 have no recollection of that at all. As I say, I would 15 have seen it if it was part of the Tayside Inquiry 16 report to me, but if it wasn't, then I may not have seen 17 it, so I don't know. 18 Is it in the Tayside report? If it is, I would have 19 seen it. 20 MR MOYNIHAN: Sir, I may be able to assist. The date that 21 would ring certain bells that suggests it's the wrong 22 Sheriff, the wrong Deputy Crown Agent. It may be 23 Sheriff Crowe is the person to ask about the report of 24 23rd June 2000. There certainly is some reference in 25 Sheriff Crowe's statement to the Crown Office having page 104 1 instructed a report from Mr Graham and, if memory serves 2 me correct, that is the date that's mentioned. 3 MISS GALBRAITH: Thank you. I am very much obliged. 4 If we move away from the actual report that 5 Mr Graham completed for Mr Asbury's trial, in terms of 6 your assessment of Mr Graham and his opinion, you 7 indicated earlier that the question of honesty or 8 dishonesty is important you were mentioning in the case 9 of deciding whether or not to prosecute. 10 Would you agree that the issue of motivation would 11 be relevant to whether somebody is honest or dishonest? 12 A. Yes. 13 Q. As I indicated earlier, although Mr Graham gave evidence 14 at Mr Asbury's trial, we understand that the fingerprint 15 evidence itself was not disputed. So it may be we can 16 take it from that that the view of Mr Graham was relied 17 upon at that stage. 18 A. Yes. 19 Q. Would you not agree that Mr Graham could, therefore, 20 have a personal and professional motivation for seeking 21 to stand by his opinion in the future? 22 A. Yes. 23 Q. I think you note in your Inquiry statement that he could 24 not be considered independent? 25 A. I certainly took the view that any fingerprint expert page 105 1 who had offered an opinion during the course of the 2 Asbury and McKie cases could not now be viewed as being 3 independent, yes, because they expressed an opinion and 4 there was always the possibility that they were simply 5 sticking to that opinion and not owning up. 6 Now, that's not the conclusion I reached but I 7 accept that there is always a risk, which is why, if you 8 are looking for independent experts, you would go to 9 someone who had no prior involvement in the case, no axe 10 to grind, no position to defend, no colleagues to 11 defend. You would look for somebody outside, completely 12 outside, the case and the institutions, which is why I 13 went to Durham. 14 Q. Indeed, that may be something that I will come back to, 15 that there was that independent analysis of the mark in 16 this case. 17 Could the same point be made in relation to 18 Mr Swann? 19 A. Yes. The point can be made in relation to every expert, 20 whatever view they came to, that they might be inclined 21 to defend the position that they had adopted at an 22 earlier stage. That's on both sides of the dispute. It 23 applies to all of them -- potentially. 24 Q. Although would you not accept that perhaps that may not 25 apply in relation to the independent expert that you page 106 1 just explained would be necessary? 2 A. Yes. 3 Q. So that kind of influence and motivation may be apparent 4 within Mr Graham and Mr Swann and perhaps the SCRO 5 officers? 6 A. It is a potential difficulty with all the fingerprint 7 experts who were involved in the original cases. They 8 all expressed a view and there is always the potential 9 danger they are simply sticking to it and not wanting to 10 admit that they made a mistake. There's a potential for 11 that. 12 Q. Was that something that you took into account during the 13 course of your investigation, the potential motivation 14 for the views of each of the experts you spoke to? 15 A. Yes. 16 Q. Can I move on, please, to ask you about particular 17 criticisms that were made both by Mr Swann and Mr Graham 18 starting, firstly, with Mr Peter Swann. 19 He has advised or had advised the Justice 1 20 Committee who, I think you are aware, considered the 21 issue of this mark? 22 A. Yes. 23 Q. I regret to say I don't have a copy of the submission I 24 will refer to but I do have -- it's readily available on 25 the Internet and I can provide the web address. page 107 1 Mr Swann advised the Justice 1 Committee that he 2 thought the evidence from Durham was flawed and he also 3 said that Pat Wertheim's evidence was flawed. 4 Do you recall him making these comments when he met 5 you? 6 A. As I said in the statement, I simply do not remember the 7 detail of what was said. I simply remember that he 8 continued to hold the view that Y7 was that of Shirley 9 McKie. That's all I remember. But obviously I can 10 refer to my report and other correspondence that 11 amplifies what I discussed with him, so if it's in that 12 then I can adopt it, but I don't remember it. 13 Q. One thing you particularly mentioned is that he gave you 14 a chart with characteristics marked on it. I take it 15 that is not something you recall either? 16 A. Sorry, he gave me the chart? 17 Q. Yes. 18 A. Yes, I think he probably did. I think he probably did 19 illustrate to me where his 21 characteristics were, yes. 20 Q. After speaking to Mr Swann and receiving his comments, 21 did you go back and re-interview the officers at Durham 22 or speak to Mr Wertheim? 23 A. No, no. 24 Q. Why was that? 25 A. Well, I suppose this was a process that had to be page 108 1 stopped at some point. I had obtained a view from the 2 Durham experts. They were clearly of the view it was 3 not Shirley McKie's fingerprint. I had now been to see 4 Mr Graham and Mr Swann to assess their evidence and I 5 knew what their evidence was but I wanted to assess how 6 persuasive they were and, having done that, I was 7 satisfied that that was sufficient for my purposes 8 because I was quite clear in my own mind at that point 9 that this could not result in a prosecution. So that 10 was enough. 11 I mean, I could have gone back to Durham and said, 12 "What do you think about these criticisms", and got 13 their response and then gone back to Mr Swann or 14 Mr Graham and said, "... and here's what Durham have 15 said", but I think one had to draw the line somewhere. 16 Q. In the same vein, you interviewed Robert Mackenzie, I 17 think, on 18th July 2001? 18 A. Yes. 19 Q. At that time he had been removed from operational 20 duties? 21 A. Yes. 22 Q. We understand that he may have been suspended. Were you 23 aware of that? 24 A. If he had been, I would probably have been aware of it, 25 yes. page 109 1 Q. Similarly, Mr Mackenzie said or indicated grave concern 2 about the conclusions of the independent experts from 3 Durham and also Mr Wertheim. Again, after hearing that, 4 you didn't then go and speak to these independent 5 experts again? 6 A. No. 7 Q. And would that be for the same reason as Mr Swann? 8 A. Yes. At that stage I'd already submitted my report in 9 which I concluded there was no basis for a prosecution. 10 This was -- the interview of Mr Mackenzie was after 11 that. It simply reinforced the view that I'd already 12 taken. 13 Q. If I can move on, please, to ask you about the culture 14 at SCRO at the time in 1997, which is something you 15 mention in the report. Perhaps if I can ask you to look 16 at your report. Just bear with me, I'll find the 17 reference number. 18 MR MOYNIHAN: CO0003. 19 MISS GALBRAITH: Thank you. If we go to page 32, 32 of the 20 report and perhaps this excerpt starts on the earlier 21 page, 31. 22 About halfway down the page, Sheriff, you have 23 included an excerpt from findings of an expert group on 24 fingerprint identification set up by an Interpol 25 European Committee 1997. Do you see that there? page 110 1 A. Yes. 2 Q. I think the reason for that is that it had been referred 3 to by Mr Rudrud and Zeelenberg. 4 Do you recall that? 5 A. Yes. 6 Q. What the excerpt relates to is comments on mistaken 7 identifications and seeks to give some explanation of 8 why mistaken identifications have been made. 9 If we go on to the following page, page 32, in 10 particular the third paragraph down it refers to: 11 "Hierarchy (rank) in scientific decision-making is 12 considered to be inappropriate. The dangers of such a 13 process, which must be recognised and overcome if a 14 hierarchical system is used, are that: the junior tunes 15 his/her opinion to that of the senior; the culture of 16 the longer serving expert 'sees more'; [and] the 17 pressure of the junior to please the senior." 18 Now, would it be fair to say that in your own view 19 at the time you thought that this excerpt was pertinent 20 to the issue of mis-identification and to that extent 21 you have included the full excerpt in your report? 22 A. Well, I was exploring, as I have already said, I was 23 exploring two things. Was there a mis-identification 24 and, secondly, if there was, why? And this is was one 25 possible explanation as to why you might get a mistaken page 111 1 identification. 2 Q. Was this your understanding of the working conditions or 3 environment which was prevalent within SCRO at that 4 time? 5 A. I was aware of HMCIC's findings in relation to that but, 6 again, unfortunately, I can't specifically remember what 7 was said. But my recollection would be that there were 8 concerns, possibly, about some of these issues. I mean, 9 I was aware from this particular case about the 10 hierarchy involved in the examination of the mark; so I 11 considered it relevant to -- these comments to be 12 relevant to this case. 13 Q. If I can lastly move on to consider the terms of your 14 report with particular reference to the 15 mis-identification, would you agree with me or not that 16 the terms of your report indicate that at the time it 17 was submitted your conclusion was that there was a 18 mis-identification of mark Y7? 19 A. Yes. I think I proceeded on the basis that there was a 20 mis-identification. The experts to who I had gone in 21 Durham had told me it was a mis-identification. They 22 were the last experts to whom I had spoken before 23 submitting the report and I accepted their conclusion 24 but not, I think, to the extent of not entertaining some 25 doubts. page 112 1 Q. If we can go to your report, which I think is still on 2 the screen, and if we look at the second page, we can 3 see from the heading what your report covers and it 4 states that it is arising out of whether criminal 5 proceedings should be taken against fingerprint officers 6 employed by Scottish Criminal Record Office arising out 7 of the mis-identification of fingerprints. 8 A. Yes. I mean, I could have put alleged 9 mis-identification every time I spoke about 10 mis-identification. It was an alleged 11 mis-identification and the experts to whom I had gone 12 told me it was a mis-identification so I proceeded on 13 that basis. 14 Q. Again, there are numerous other references throughout 15 the report to mis-identification. 16 Can I take it that you would simply make the same 17 comment in relation to those other references, that the 18 word "alleged" could be put in front of it? 19 A. Yes. 20 Q. Can I ask you to look please at a letter that was sent 21 accompanying your report and it was submitted to the 22 Deputy Crown Agent. The reference is CO0007. 23 A. Yes. 24 Q. Can we look at page 2 of that report. I am sorry, I 25 should have confirmed with you from the first page, do page 113 1 you agree that this letter is a letter that was sent 2 accompanying your report to the Deputy Crown Agent? 3 A. Yes, of course. 4 Q. On the second page at the third paragraph down do you 5 see you have written: 6 "I am confident that the crime scene marks were 7 mis-identified." 8 A. Yes. 9 Q. Would it be fair to say then that was your opinion at 10 that time? 11 A. Yes. Well, as I say, I keep saying, I accepted the 12 expert opinion offered to me by the experts I had 13 consulted. I think -- I'm sure I say somewhere else 14 though that I'm not certain. 15 THE CHAIRMAN: But not being an expert yourself on 16 fingerprints, you had to rely on the assistance you had 17 been given from Durham and that was to the effect that 18 it was not Shirley McKie's mark. 19 A. Yes and it wasn't simply that Durham -- I had gone to 20 Durham, it was also the point that your earlier 21 questioning has alluded to that all the experts that had 22 been consulted by HMCIC, by myself subsequent to the 23 allegation being made, were independent. They had no 24 prior involvement. So it wasn't just that those were 25 the experts that I had consulted, it was also they were page 114 1 consulted at a stage when they knew that there was this 2 major dispute about the identification, they had no axe 3 to grind, they had no previous position to protect or 4 adopt, no colleagues to protect. So I obviously placed 5 great weight on their evidence. 6 But I should -- I've just noticed that and perhaps I 7 should correct it. I notice at the top of that letter 8 on the page that is actually on the screen I refer to 9 Peter Swann insisting that he was correct to identify 10 Q12. I think that must be a mistake. It should be a 11 reference to Peter Swann identifying Y7. 12 MISS GALBRAITH: To be clear that at that time when you 13 submitted your report you considered the weight of 14 evidence, that you value the opinion of the independent 15 experts and that is the basis for your assertion there 16 that you're confident that the crime scene marks were 17 mis-identified. 18 A. Yes. 19 Q. I think you very fairly accepted today in today's 20 evidence and indeed that letter we have just been 21 looking at that there was a tendency to be more 22 influenced by the last expert that you spoke to. 23 A. Yes. 24 Q. In your consideration of this investigation, the last 25 expert you spoke to happened to be Mr Mackenzie; is that page 115 1 right? 2 A. Yes. Every expert that I spoke to, my conclusion was 3 that they genuinely believed that the position that they 4 were putting to me was the correct one. That was my 5 assessment of every expert I spoke to. 6 Q. I think on a previous occasion you have been similarly 7 persuaded by Mr Mackenzie. You refer in your report to 8 a facilitated meeting at Tulliallan which had been 9 attended by Mr Mackenzie and Mr Dunbar in addition to 10 Mr Rudrud and Mr Zeelenberg. 11 Do you recall that? 12 A. Yes, I do. 13 Q. Specifically, you mention in your report, which is at 14 page 24 -- you don't necessarily have to go to it unless 15 you would like to have a reference to it -- but you say 16 there that the presentation by Mackenzie and Dunbar was 17 at first persuasive? 18 A. Yes. 19 Q. But became less so when challenged by Rudrud and 20 Zeelenberg? 21 A. Yes. 22 Q. Is that your -- 23 A. Yes. 24 Q. And would that fit in with the evidence that you have 25 already given, that your view altered depending on the page 116 1 last expert that you spoke to? 2 A. Yes and after speaking to Robert Mackenzie it led to my 3 adopting the view that they were possibly all wrong, to 4 the extent that they were all definite. Perhaps none of 5 them should have been definite. 6 THE CHAIRMAN: That might be the best conclusion. 7 MISS GALBRAITH: Just bear with me for one moment please. 8 (Pause) 9 Just finally it's really on the same point, Sheriff: 10 given that there was this competing evidence or opinion 11 and, to an extent, you were balancing and considering 12 what you were being told by each expert as you were 13 being told it, you mentioned or agreed earlier that 14 certainly Mr Swann, Mr Dunbar and any expert from SCRO 15 could have a motivation to maintain a view that they had 16 expressed at an earlier stage, which is a motivation 17 that the independent experts did not have? 18 A. Yes. 19 Q. Would you agree with that? 20 A. Yes but I would make the point I didn't simply go to 21 these experts and say, "What's your conclusion", and 22 they would tell me and I would say, "Thank you very 23 much". I asked every single one of them to demonstrate 24 and in each case I found their demonstration persuasive. 25 So it wasn't simply relying on their assurance. In page 117 1 every case I wanted them to demonstrate to me why they 2 were sure. 3 Q. But yet I think you do accept that there was the 4 additional factor with those who -- 5 A. Yes. 6 MISS GALBRAITH: Thank you. 7 THE CHAIRMAN: Thank you very much. 8 Miss Graham? 9 MISS GRAHAME: Yes, thank you. I wish to ask some questions 10 which relate to a matter that was put by my learned 11 friend, Mr Moynihan, suggesting that there was a 12 difference between the public position adopted by Crown 13 Office and the private position. 14 THE CHAIRMAN: Yes. 15 MISS GRAHAME: I'm obliged. 16 Cross-examined by MISS GRAHAME 17 Q. Sheriff Gilchrist, I wonder if I could ask you to look 18 again at two documents you have already been referred to 19 and if we could have them both on the screen at one 20 time, CO4078 and CO4079. 21 Perhaps you will recollect looking at these earlier 22 today, Sheriff Gilchrist. 23 A. Yes. 24 Q. Do you see on the left-hand side there's a letter from 25 yourself, Deputy Crown Agent, to Mr McKie dated page 118 1 9th May 2002? 2 A. Yes. 3 Q. On the right-hand side of the screen was a minute by you 4 to the Lord Advocate. 5 A. Yes. 6 Q. At the bottom the date it's received is 24th May 2002; 7 that would be the date it was received by the law 8 officers? 9 A. Yes. 10 Q. Perhaps we can look at page 2 of that document, please. 11 We see it's dated 24th May 2002. 12 A. Yes. 13 Q. I don't intend to go through these in detail again but 14 is it fair to say that at that time you were considering 15 the issue regarding the four SCRO experts and whether 16 they would be used again in evidence? 17 A. Yes. 18 Q. And that the Crown position was at that time, I think we 19 can see on the right-hand side of the document CO4079 in 20 the final paragraph you have written: 21 "I do not think it would be appropriate for a 22 decision to be taken on whether or not to accept reports 23 from the four experts until the civil proceedings have 24 been concluded." 25 A. Yes. page 119 1 Q. As I understand it, that was your position at the time 2 and that's what you were recommending to the 3 Lord Advocate? 4 A. Yes. 5 Q. We can see from the handwritten note at the top of that 6 that the Lord Advocate at the time agreed with your 7 recommendation. 8 A. Yes. 9 Q. Could I ask you to look now please at CO4081. This is 10 the letter from Harry Bell to you dated 31st May 2002. 11 A. Yes. 12 Q. If we look at the start of the fourth paragraph it says: 13 "I would therefore suggest that you may wish to 14 consider the following. 15 "The Crown is aware that the officers are involved 16 in a return to work strategy. In light of the ongoing 17 civil litigation and the other relevant circumstances, 18 it is considered that it would be inappropriate to make 19 any direct comment on this matter at this time." 20 A. Yes. 21 Q. That was a suggestion put to you by Mr Bell? 22 A. Yes. 23 Q. What was your reply to this suggestion? There's no 24 correspondence I can put to you. 25 A. In which case I simply don't remember. page 120 1 Q. Insofar as it's been suggested that there was a 2 suggestion by Mr Bell that Crown Office adopt a contrary 3 position to that expressed by you in the previous 4 correspondence, was that ever agreed to by you? 5 A. No. The Crown Office position was that we should await 6 the outcome of the civil proceedings. I have no 7 recollection whatsoever of being party to any suggestion 8 that that should not be the public stance that we were 9 awaiting the outcome of the civil proceedings. I just 10 have no recollection of that. I can't see why I would 11 have been party to any suggestion it should not be the 12 public stance. That was the reason. That's what we 13 were doing: we were waiting for the outcome of the civil 14 proceedings and I'm quite sure that that's what we said 15 and kept saying to everyone. 16 Q. Do you agree with the suggestion that Crown Office 17 adopted a public position that differed from the 18 position sent out by you in your correspondence? 19 A. No. I'd have to be directed to any evidence that the 20 public position was different. I mean, I noted at 21 lunchtime when I looked at these papers again there 22 is -- and I'm afraid my documents don't have a reference 23 number -- but there's a draft -- it's obviously a draft 24 minute, July 2003, which would have been prepared by my 25 legal assistant, Rachel Weir and it was a minute from me page 121 1 to the Justice Department in which I have written in to 2 the draft so that it's quite clear to the 3 Justice Department who are dealing with the 4 correspondence and are dealing with Parliamentary 5 questions and I wrote in: 6 "The Crown's position has been that while civil 7 proceedings are pending it would not be appropriate to 8 use the four experts as experts in criminal 9 proceedings." 10 So I was making it quite clear to the 11 Justice Department who were dealing with -- I think it 12 was the Justice Department were mostly dealing with 13 correspondence and Parliamentary questions. I was 14 making it quite clear that they understood the Crown's 15 position. 16 Q. So would you accept that any suggestion that Crown 17 Office adopted two different positions, a private and a 18 public position, is quite simply wrong? 19 A. Yes. I mean, that would certainly be my recollection 20 and understanding, and I can't see why we would. 21 Q. Very briefly, I would like to refer you to some other 22 correspondence. First of all, CO4086. 23 Do you see that this is another letter from Harry 24 Bell, dated 12th February 2004? 25 A. Yes. page 122 1 Q. In the first paragraph he refers to a meeting which he 2 had with you on 16th July 2002? 3 A. Yes. 4 Q. Which would appear to be six weeks/two months after his 5 letter dated 31st May 2002? 6 A. Yes. 7 Q. Do we see that in paragraph 2 it says: 8 "That meeting followed on a letter of response to 9 Mr McKie, advising that the Crown's position regarding 10 the future use of the four experts would be kept under 11 review in light of developments in the civil case 12 involving Ms McKie and the Asbury appeal." 13 A. Yes. 14 Q. So, again, the Crown Office position at that stage would 15 appear to be consistent. 16 A. Well, it would certainly be my recollection the Crown 17 Office's position was consistent throughout. 18 Q. Could we now look please at CO4087, which is a letter 19 from you to Mr Bell dated 23rd February 2004, which is 20 reply to the previous letter we looked at? 21 A. Yes. 22 Q. Again, in the third line of that letter you, again, talk 23 about the civil action being unresolved. 24 A. Yes. 25 Q. And that at that time you were awaiting a report from an page 123 1 expert. 2 A. Well, the Justice Department were waiting for a report 3 from an expert. 4 Q. Sorry, the Justice Department. 5 Can we now look at CO4088. This is a letter from 6 yourself to James -- to the Justice Department on 7 9th March 2004. 8 A. Yes. 9 Q. Again, if you could take a moment to read through that. 10 A. Yes. 11 Q. Again, does it appear to be that you're awaiting the 12 outcome of the civil action? 13 A. Yes, yes -- the very last line. 14 Q. Turning to CO4089, this is a minute by you to the 15 Lord Advocate, dated 10th March 2004. 16 A. Yes. 17 Q. If we look at the recommendation section, which is at 18 the bottom of page 1, number 5, and, again, it's stated: 19 "Our position to date has been that we would prefer 20 to await the outcome of the civil action before reaching 21 a decision on whether or not to use these experts as 22 Crown witnesses." 23 A. Yes. 24 Q. Turning to CO4090, this is an e-mail from the 25 Lord Advocate's PA, Chris Orman, to yourself where the page 124 1 Lord Advocate agreed with your suggestion? 2 A. Yes. 3 Q. CO4091, a letter from you to Mr Harry Bell dated 4 12th March 2004. 5 A. Yes. 6 Q. Again, it refers to a recent meeting regarding whether 7 the Crown would be prepared to accept reports from the 8 four fingerprint experts and in paragraph 2 you express 9 the view that: 10 "The Crown have some concerns about the experts 11 being questioned should they be required to give 12 evidence. The fact that civil proceedings are still 13 pending is a further complicating factor." 14 A. Yes. 15 Q. CO4092. This seems to be a reminder e-mail from 16 yourself to Fiona Robertson and it's in relation to the 17 same matter. 18 A. Yes. 19 Q. Can you tell us who Fiona Robertson was at that time? 20 A. I think she would be in the Solicitor's Office. I think 21 she was probably involved in the civil case. 22 Q. In paragraph 2 it says: 23 "I have indicated that the Crown is not in a 24 position to say whether we would use any of the four 25 experts to give evidence in criminal proceedings. I page 125 1 have indicated however that I would hope to be in a 2 position to do so as a result of developments in the 3 McKie civil action." 4 A. Yes. 5 Q. So again you mention the pending civil action? 6 A. Yes. 7 Q. There are two more I want to ask you about, Sheriff 8 Gilchrist. The first is CO4093. This is a letter dated 9 13th December 2005 from John McLean, who was the 10 Director of SCRO. 11 A. Yes. 12 Q. He took over from Mr Bell, as I understand it? 13 A. Yes. 14 Q. And it was addressed to Mr Brisbane who, by that time, 15 was Deputy Crown Agent? 16 A. Yes. 17 Q. And he had taken over from you? 18 A. Yes. 19 Q. He writes: 20 "You are aware following on from the Shirley McKie 21 case, four experts based at the Glasgow Bureau ... have 22 been removed from the list of those authorised to give 23 fingerprint evidence in Scottish courts. 24 "I understand that my predecessor, Harry Bell, 25 previously wrote to your predecessor as Deputy Crown page 126 1 Agent enquiring whether or not the four experts 2 concerned could be readmitted to the list of authorised 3 fingerprint experts. 4 "My purpose in writing at this time is simply to ask 5 if this situation still pertains and if there is any 6 intention to review it at some time in the future." 7 Would you look please at CO4094. This is two 8 e-mails, the first which is towards the bottom of that 9 page dated 22nd December 2005 and it's from Mr Brisbane 10 to yourself at that time Lothian & Borders Area Fiscal? 11 A. Yes. 12 Q. It says: 13 "John McLean has written to me concerning the four 14 experts who are at the centre of the McKie case raising 15 questions as to whether or not there is any intention to 16 review their position as suitable experts as they are 17 currently not on the authorised list. Can you remind me 18 how this was left? Was it to be reappraised at the 19 conclusion of the civil proceedings?" 20 Would you turn back to the first page, please. 21 Do we then see your reply to Mr Brisbane dated 22 23rd December 2009? I wonder perhaps if you could read 23 out the first paragraph? 24 A. "Our position has always been that we should await the 25 outcome of the civil proceedings. It was not envisaged, page 127 1 of course that, those proceedings should take as long as 2 they have to come to a conclusion. For my part, I would 3 be prepared to accept reports from these experts. They 4 are fully qualified and there are sufficient safeguards 5 within the system. In any event, as I never tire of 6 pointing out, if the defence have any concerns about the 7 quality of the evidence, they can instruct their own 8 expert. The real concern is that the defence may try to 9 muddy the waters with the jury. However, in the 10 post-bonomy world, fingerprint evidence should be agreed 11 and if the defence will not agree it, that should only 12 happen where they have contrary opinion from another 13 expert." 14 Do you want me to read the rest? 15 THE CHAIRMAN: No, I don't think we need to trouble you. 16 Thank you very much. 17 MISS GRAHAME: May I just clarify one further thing with 18 you, Sheriff Gilchrist. If the suggestion by Mr Bell to 19 you in his letter -- which is CO4081 -- and you'll 20 recall the suggestion that he was putting, "the Crown is 21 aware that the officers are involved", that paragraph -- 22 if his suggestion was that the Crown position be 23 described that way and if that is different from your 24 position, do you accept that insofar as there is any 25 difference that that does not correctly reflect Crown page 128 1 Office position? 2 A. Well, it's putting it a way that I've obviously not been 3 putting it. I don't think it contradicts the Crown's 4 position. It's perfectly correct that the Crown was 5 aware that the officers were involved in a return to 6 work strategy and it refers to the fact that it would be 7 inappropriate to make any comment while the civil 8 litigation is proceeding. 9 So it's not contradictory, it's putting it in a way 10 that I seem to always put it more directly, that we want 11 to await the outcome of civil proceedings. 12 MISS GRAHAME: Thank you very much. I have no further 13 questions. 14 THE CHAIRMAN: Mr Macpherson? 15 MR MACPHERSON: No thank you, sir. 16 THE CHAIRMAN: Do you have any application, Mr Holmes? 17 MR HOLMES: I do, sir. There are a number of pieces of 18 correspondence. 19 THE CHAIRMAN: It's just whether we take the break now. I 20 am obviously anxious to conclude this witness's evidence 21 but, in view of matters, we will sit again at 3.05. 22 (2.55 pm) 23 (A short break) 24 (3.07 pm) 25 THE CHAIRMAN: Now, Mr Holmes, what are the issues you want page 129 1 to raise? 2 MR HOLMES: Thank you, sir. There are six or seven pieces 3 of correspondence that I want to put to this witness. 4 They cover, obviously, a broad age of topics but what 5 I'm interested in is the instruction to the experts, 6 particularly the Durham experts, in relation to the 7 report that was prepared by this witness. 8 There are a couple of matters that were put to him 9 in cross, there are some matters which were put to him 10 in-chief by my learned friend, Mr Moynihan, and there's 11 a brief part dealing with treatment of the SCRO experts. 12 THE CHAIRMAN: Yes, if it's correspondence we have seen 13 already, don't feel you need to look at it yet again. I 14 am sure we can identify it sufficiently. But I leave it 15 to you to do it as swiftly as you can. 16 MR HOLMES: I'm obliged, sir. 17 Cross-examined by MR HOLMES 18 Q. Sheriff, there are a couple of matters that were put to 19 you in cross-examination, first of all, that I would 20 like to cover with you. The relevant part for the first 21 question is at page 106 of LiveNote and it's at line 3. 22 There you are asked a question whether your view was 23 reinforced, so the question is: 24 "Similarly, Mr Mackenzie said or indicated great 25 concern about the conclusions of the independent experts page 130 1 in Durham" -- 2 MR MOYNIHAN: If I can just intervene, there is no LiveNote 3 terminal -- 4 THE CHAIRMAN: The witness doesn't have the transcripts so 5 you will have to go quite slowly if you are asking him 6 to comment on a passage. 7 MR MOYNIHAN: Can I also say I personally am having some 8 difficulty hearing my learned friend. I don't know if 9 that may be true of others. 10 THE CHAIRMAN: If you could read it so that Sheriff 11 Gilchrist can follow. 12 MR HOLMES: Sheriff, the question was: 13 "Similarly, Mr Mackenzie said or indicated grave 14 concern about the conclusions of the independent experts 15 in Durham and also Mr Wertheim. Again, after hearing 16 that you didn't then go to speak to these independent 17 experts, again", to which your answer was no. 18 You said that at that stage you had already 19 submitted your report in which you concluded there was 20 no basis for a prosecution. 21 "This was the interview of Mr Mackenzie after that 22 it simply reinforced the view that I'd already taken." 23 Can we take it from that that the interview with 24 Mr Mackenzie was reinforcing your view that there was no 25 basis for a prosecution? page 131 1 A. Yes. 2 Q. Thank you. 3 The other part I would like to ask you about -- for 4 those using LiveNote it is at page 105 and it is at 5 line 24 -- you are asked: 6 "We understand that he may have been suspended. 7 [That's referring to Mr Mackenzie] were you aware of 8 that", and your response was: 9 "If he had been, I would probably have been aware of 10 it." 11 Are we to take it then that you are not aware of 12 Mr Mackenzie having been suspended? 13 A. I don't know. I'm simply saying that if he had been I 14 would probably have known about it but I don't 15 specifically remember now whether I knew that he had or 16 had not been suspended. 17 Q. Mr Mackenzie's own evidence is to the effect that he was 18 not suspended at that point in time. 19 Would you have any reason to disagree with him? 20 A. No, I simply don't remember anything about that. 21 Q. Turning to the documents that were referred to, if I 22 could take you to first CO1061 and it is page 2 of that 23 document. 24 This is a letter from yourself to Mr Mackay; is that 25 correct? page 132 1 A. Yes. 2 Q. Mr McKay was the officer responsible for the Tayside 3 investigation; is that right? 4 A. Yes. 5 Q. It's a short letter but the main body of it says: 6 "I do not think there is any point in taking 7 statements from the Danish experts. As agreed at our 8 meeting, the experts in Durham should be asked to look 9 at the fingerprint from the tin with a view not only to 10 then indicating whether they agree with the Danish 11 experts but also whether they can offer an explanation 12 for SCRO having got the identification wrong." 13 Now, would you agree that, on the face of it, that 14 letter appears to assume at that stage that the 15 identification provided by the SCRO experts was, in 16 fact, wrong? 17 A. Well, I think the answer is the same to the one that I 18 gave earlier. I could have put in "allegedly" every 19 time I referred to this issue of whether there had been 20 a mis-identification. But at this point the Crown have 21 gone to entirely independent experts with no prior 22 involvement in the case who said that this was a 23 mis-identification and the Crown was, if you like, 24 provisionally accepting that while the matter was under 25 investigation. page 133 1 Q. Do you recall what the terms of the instructions were to 2 the Durham experts? 3 A. Well, I think they are in the -- I've seen the document 4 in which I set out what it was I wanted the Durham 5 experts to do. I wanted them to look at the same 6 material that the SCRO officers had looked at and offer 7 an opinion. So it wasn't just an opinion on whether 8 this was or was not Shirley McKie's fingerprint, it was 9 an opinion on the conclusions that had apparently been 10 reached by the SCRO officers. 11 Q. Indeed, so. Their instructions accord with the terms of 12 this letter, which is basically asking the Durham 13 experts whether they thought that the SCRO experts were 14 wrong and, if so, why? 15 A. Yes. 16 Q. Why is it that you say in that letter that you don't see 17 any need to take statements from the Danish experts? 18 A. Well, we had a report from the Danish experts and the 19 focus at this stage was on what the SCRO officers had 20 done and not on the question of whether or not this was 21 Shirley McKie's fingerprint. 22 Q. The Durham experts were instructed by reference to the 23 Danish reports; is that correct? 24 A. Yes. 25 Q. I think the letter says that they would be asked page 134 1 whether -- 2 A. Yes, that's right, yes. 3 Q. That is in relation to all the fingerprints or is that 4 in relation to Y7 only? 5 A. Sorry, we're getting slightly confused here. The Danish 6 experts only examined QI2. It was Zeelenberg and Rudrud 7 who had examined Y7. 8 Q. Sorry, that's correct. The Danish experts examined QI2. 9 Did they not also at some stage examine QD2? 10 A. Yes, probably, yes. 11 Q. Because they originally expressed doubts on QD2; is that 12 correct? 13 A. Yes. That was before -- that inquiry had been 14 instructed by my predecessor as Deputy Crown Agent, now 15 Sheriff Crowe. 16 Q. Were you aware -- 17 A. I was aware of the result, yes. 18 Q. You were aware of the fact that two Danish experts that 19 had been instructed had originally expressed some doubts 20 as to QD2? 21 A. I have a vague recollection of that. 22 Q. Were you aware that that opinion was later retracted? 23 A. Again, I have a vague recollection of that. 24 Q. You don't recall when exactly in the time-frame all of 25 that fits? page 135 1 A. No. 2 Q. Perhaps I will ask Sheriff Crowe about that. 3 Are you aware of the reason that was given for that 4 opinion having been reversed? 5 A. No. I mean, I may have been but at this point in time 6 I've no recollection of that. 7 Q. The next document I would like you to look at please is 8 CO0007. This is a letter from yourself to Mr Crowe who 9 was at the time Deputy Crown Agent -- sorry -- 10 A. Yes, he was, yes. 11 Q. It summarises the findings of the Mackay Report? 12 A. Yes. 13 Q. It says that neither yourself nor the Mackay team found 14 any evidence of collusion? 15 A. Yes. 16 Q. That there is no evidence of conspiracy to provide false 17 evidence against Ms McKie or Mr Asbury? 18 A. Yes. 19 Q. You then go on to say that those responsible for 20 identifying the Y7 and QI2 were guilty of either gross 21 incompetence or intentionally presenting false evidence. 22 On the face of it, those two things don't square up, 23 do they? 24 A. Which? The no conspiracy? I think what I meant there 25 was there was no evidence other than the fingerprint page 136 1 experts' opinions, the contrary opinions. There was no 2 other evidence of a conspiracy. There was no evidence 3 about exchange of e-mails or secret meetings or no 4 confessions. There was nothing. All we have are these 5 contrary opinions that these are mis-identifications and 6 they are very bad mis-identifications. You don't 7 necessarily have to have had a conspiracy. It would be 8 very difficult to see how they could each independently 9 have been guilty of intentionally presenting false 10 evidence without there having been a conspiracy. Yes, I 11 accept that. 12 Q. If we move on to the next paragraph ... on page 2 13 please, the top paragraph on that you say that: 14 "Unfortunately, Peter Swann still insists that he 15 was correct to identify QI2 as being an impression made 16 by Marion Ross. Malcolm Graham's position is that QI2 17 is Marion Ross' fingerprint and that Y7 is Shirley 18 McKie's ..." 19 Firstly, I'd like to ask about the use of the word 20 "unfortunately"? 21 A. Well, unfortunate in the sense that I found the fact 22 that I could not find agreement amongst all fingerprint 23 experts to be very unfortunate. 24 Q. Unfortunate for whom? 25 A. Unfortunate for my investigation and for the case as a page 137 1 whole. I mean, from the very start with the facilitated 2 meeting at Tulliallan it had been hoped there could be a 3 reconciliation, an understanding of how these 4 differences had arisen and it wasn't obtained at 5 Tulliallan and my investigation and the Tayside 6 investigation, essentially, just failed to resolve the 7 conflicts between the two camps. 8 Q. So equally unfortunate then that the experts who 9 contradict Mr Swann and Mr Graham and, indeed, the SCRO 10 experts adhered to their views then? 11 A. Well, it was just unfortunate that agreement could not 12 be reached. The sentence though is actually wrong, I 13 mean, because it's clearly a mistake because Peter Swann 14 is talking about Y7, his evidence about Y7 and not QI2. 15 So the entire sentence is just a mistake. 16 Q. I wanted to ask you about that because you have said 17 earlier in your evidence that the reference to QI2 in 18 relation to Peter Swann is a mistake but the sentence 19 goes on to say that QI2 is identified as the impression 20 made by Marion Ross. If it was referring to QI2 that 21 would be correct? 22 A. Yes, but that's in relation to Malcolm Graham. 23 Q. The sentence relating to Peter Swann makes mention of 24 Marion Ross? 25 A. Oh, yes. The sentence is simply wrong but I see in the page 138 1 bottom paragraph that I revert to talking about Malcolm 2 Graham and the crime scene mark made by Marion Ross. 3 It's just a mistake. The top sentence is a mistake but, 4 I mean, it's not a mistake that was repeated in the 5 report itself. 6 Q. If we can look at paragraph -- sorry, the second 7 paragraph on that page says that you: 8 "... have not been able to interview Robert 9 Mackenzie or Alan Dunbar from SCRO as they have received 10 legal advice advising them not to see me. Their 11 solicitor is reconsidering that advice and their 12 position may change." 13 Do you have any specific recollection of that? 14 A. No. 15 Q. So if it's the position of Mr Mackenzie that he extended 16 full co-operation and that no legal advice had been 17 received preventing him from seeing you, that may be the 18 case? 19 A. Well, no, I doubt it. I mean, I simply don't remember 20 but I wouldn't have put that in unless I had some basis 21 for believing that they had received legal advice 22 advising them not to see me. I mean, I would not have 23 put that in unless that was the case. I mean, it's too 24 specific. Their solicitor is reconsidering that advice 25 and their position may change. I got that from page 139 1 somewhere. 2 Q. You are not able to confirm now whether that view was 3 correct or not? 4 A. I have no recollection beyond what is stated there. 5 Q. If we turn to paragraph 6 of that same page, the one 6 that begins, "If Crown Counsel ..." It says: 7 "If Crown counsel instruct no proceedings in 8 relation to SCRO officers, I will arrange to see Iain 9 McKie and/or Shirley McKie to explain the Crown's 10 position." 11 Was it common in 1999 to discuss the decision to 12 prosecute or not with someone who had made a complaint? 13 A. It was not common but it would not be unheard of. 14 Q. It's not something you could have done in every case 15 because you would have spent your life in meetings with 16 alleged victims of offences. 17 A. Yes. 18 Q. Was Ms McKie's case treated with kid gloves, perhaps, 19 because of the fervour with which her complaint was 20 being approached? 21 A. No. I would be interested in any examples of the way in 22 which it was thought to have been conducted with kid 23 gloves. 24 Q. Well, the decision to meet with either Mr McKie or 25 Ms McKie you have said is not unheard of. It is page 140 1 certainly not common. 2 Do you recall why, for example, that decision was 3 taken? 4 A. I have met with complainers in other cases. 5 Q. But you don't recall in this case why the decision was 6 made? 7 A. Well, my investigation started with a meeting with 8 Mr McKie and Shirley McKie's uncle. I see nothing odd 9 in the fact that at conclusion of the investigation I 10 was going to speak to Iain McKie and Shirley McKie and, 11 as I say, I have in other cases seen complainers at the 12 conclusion of investigations to explain why, to the 13 extent that I am able to explain, but to tell them what 14 decision has been taken as regards proceedings. 15 Q. I understand, but you are aware that there has been a 16 very large amount of publicity associated with this 17 case. 18 Is that something that the Crown were wary of? 19 A. Sorry, did you say the Crown were "aware" of or "wary" 20 of? 21 Q. Wary. 22 A. Wary of. Well, the Crown would always have an interest 23 in not being the subject of adverse publicity but it 24 didn't affect anything that I did in the investigation 25 of this complaint. page 141 1 Q. The next document I would like to look at, Sheriff, is 2 CO0008, please. 3 Again, that's another letter from yourself to 4 Mr Crowe indicating that you wished to interview 5 Mr Mackenzie, Mr Dunbar, Mr Graham and Mr Swann. 6 Paragraph 2 makes clear your intention, which is to 7 put the Durham report to them and to try to persuade 8 them to change their position. 9 A. Sorry, to see whether this persuades them to change 10 their position, yes. Throughout this investigation I 11 was hoping that the experts would agree and they never 12 did. 13 Q. It seems from this letter and the one that we looked at 14 previously that the hope was that those supportive of 15 the identification would change their position, not 16 those who had been instructed subsequently? 17 A. I can only repeat that throughout the investigation my 18 hope had been that a consensus could be arrived at but a 19 consensus was never reached. But if you're trying to 20 suggest that I was trying to ensure that there would be 21 a prosecution, I reject that totally. I most certainly 22 was not. 23 Q. No, not at all but it appears that the prevailing view 24 at the time was that Mr Swann, Mr Graham and the SCRO 25 experts were the experts who ought to change their view. page 142 1 A. It doesn't say "ought to"; it says, "to see whether this 2 persuades them to change their position". 3 There is no doubt that I was placing weight and the 4 greatest weight on the opinions of the independent 5 experts and, as this records, I was wishing to speak to 6 those who were giving a contrary view to see whether the 7 views of these independent experts changed their 8 position. That's what I was doing. 9 But I wasn't anxious to persuade them to change 10 their position. I certainly hoped that there would be 11 a consensus but it wasn't my job and I certainly didn't 12 set out to try and persuade anyone to change their 13 position. It's perhaps unfortunate that the word 14 appears there, but it's not me that's persuading, it's 15 just to see what this independent expert evidence, what 16 effect it has on them and whether it makes them change 17 their position. 18 Q. Indeed, it's perhaps unfortunate that word "persuade" 19 has been used but it's also perhaps unfortunate that the 20 only references to anyone changing their view are in the 21 preceding letter to Mr Swann and Mr Graham and, in this 22 letter, to Mr Mackenzie and Mr Dunbar? 23 A. I was doing what the letter sets out. I wanted to judge 24 their reaction to what would essentially be the 25 prosecution case. I was attempting to assess whether page 143 1 there were reasonable prospects of persuading a jury 2 that there had been a mis-identification and that the 3 only explanation could have been that it was wilful. 4 Q. In doing so, you have said that you attached some 5 significant weight to the opinion of the independent 6 experts. 7 A. Yes. 8 Q. Very much because they were independent experts; they'd 9 not been previously instructed and had not expressed a 10 view? 11 A. Yes. 12 Q. But the terms of the instruction of those experts were 13 to the effect that they ought to look at the marks to 14 see whether SCRO had mis-identified, in particular, Y7 15 and, if so, why. 16 A. Yes, because the Crown had obtained or it was HMCIC, I 17 think, who obtained the independent report from Rudrud 18 and Zeelenberg saying that they got it wrong. I was now 19 going to further independent experts and asking them to 20 assess the SCRO evidence in the light of this other 21 independent expert evidence that they had got it wrong. 22 Q. So the starting point for these independent experts is 23 that SCRO experts are wrong, let's find out why? 24 A. That other independent experts say they are wrong and 25 asking for them to comment. I'm asking for them to page 144 1 assess the SCRO evidence in the light of this 2 independent -- the starting point wasn't I went to 3 Durham and said, "I think the SCRO officers may have got 4 it wrong. Will you have a look at it and see what you 5 think". The starting point was that independent experts 6 from Denmark -- sorry, the other two had said that this 7 was a mis-identification. That was the starting point. 8 For me I then go to further independent experts and 9 said, in effect, "What do you make of this". 10 Q. The starting point for Durham then is that there has 11 been a mis-identification. Before they begin to examine 12 the materials, the starting point is that there has been 13 a mis-identification; is that not right? 14 A. Yes, that the Danish experts say there has been a 15 mis-identification. 16 Q. Indeed. The only reason that I'm going down this line 17 is that much has been made earlier in this Inquiry about 18 the influence that can be exerted on experts who are 19 expressing their opinion. 20 There is, in relation to other matters in the case, 21 a form which has been filled out in a way which is 22 perhaps or which has been suggested, suggests a possible 23 outcome to the experts who are examining the fingerprint 24 material. 25 Now, are the Durham experts not in the same page 145 1 position? They are having an outcome suggested to them 2 and they are working from that starting point? 3 A. No. 4 Q. They were aware of the allegation it was a 5 mis-identification, were they not? 6 A. Yes, but that's what they were helping me investigate. 7 I mean, this is an entirely different scenario from 8 experts who are looking at a mark and there is no 9 dispute, they are simply being asked for a view. It's 10 perfectly sensible they should not be aware of other 11 views when they do that but this isn't where we were. 12 This was a dispute as to whether this was or was not a 13 mis-identification. That was my starting point and the 14 Durham experts were there to help me assess this. They 15 weren't there to offer yet another assessment of Y7 or 16 QI2. That had already been done by other independent 17 experts. They were there to help me answer the 18 questions that I was posing, which is: how could this 19 be? If it is, how could this be? 20 Q. Can we have a look at CO1061, please. If we move on to 21 the next page, please. That is the letter that we were 22 looking at some moments ago, I think. It says: 23 "I do not think that there is any point in taking 24 statements from the Danish experts. As agreed at our 25 meeting, the experts in Durham should be asked to look page 146 1 at the fingerprint from the tin with a view not only to 2 them indicating whether they agree with the Danish 3 experts but also whether they can offer an explanation 4 for SCRO having got the identification wrong." 5 So, as you say, you're not asking for their view on 6 QI2 and on Y7; you're not even asking if the SCRO 7 experts are wrong; you are asking why they are wrong. 8 Is that not the case? 9 A. Whether they agree. It's with a view not only to them 10 indicating whether they agree with the Danish experts. 11 So I was asking them. I mean, I was asking them to 12 offer a view on that and, if they did agree, whether 13 they could offer an explanation for SCRO having got the 14 identification wrong. It would have been wrong if they 15 agreed with the Danish experts. 16 I mean, again, perhaps the wording could have been 17 improved but I think this is a level of nit-picking. I 18 was going to the Durham experts to get them to help me 19 carry out the investigation that I had been tasked to 20 undertake and I was asking them whether they agreed with 21 the Danish experts and, if so, whether there was an 22 explanation as to how SCRO would have got it wrong. I 23 mean, I just can't even begin to understand why anyone 24 would think that that is not an appropriate approach in 25 the circumstances that confronted me. page 147 1 THE CHAIRMAN: Had you not asked them whether they agreed 2 with the Danish experts then the point would be fair 3 enough but where you asked them whether they agreed that 4 means they've got to form their own opinion first? 5 A. Yes and the reference to an explanation for SCRO having 6 got the identification wrong, they only reach if they 7 agree with the Danish experts. 8 MR HOLMES: I make no criticism of your approach but what is 9 being done is that a proposition is being put to them 10 and they are asking whether they agree with it. They 11 are not being asked, as of new, to look at Y7 or QI2. 12 A. Well, in effect, they are. But knowing -- knowing -- 13 what conclusions others have reached. But, I mean, I 14 was in no doubt that they had to be aware of the 15 full background. They had to be aware of the dispute 16 because they were there to assist me in trying to work 17 out why there was this dispute. 18 Q. Absolutely, and I say again I make no criticism of your 19 own approach, but what will happen in due course, I 20 expect, is that my clients may be criticised by others 21 because their instructions, in looking at a particular 22 mark, are in the form of a proposition that is being put 23 to them and I want to be in a similar position when it 24 comes to examining the other experts, so you will 25 appreciate my reason for asking. The Durham experts page 148 1 were aware of what the position was before they looked 2 at the marks. 3 A. Yes. 4 THE CHAIRMAN: We have already had the response to that 5 issue. Sheriff Gilchrist draws a distinction between 6 your clients looking at it and the situation in which 7 the Durham experts found themselves. 8 MR HOLMES: If we can move on to CO0006, please. 9 Again, that's another letter from yourself to 10 Mr Crowe. The first page and a half of that would 11 appear to be notes of a meeting between yourself and 12 Mr Mackenzie; is that correct? 13 A. Yes. 14 Q. You agree that Mr Mackenzie seems to have explained the 15 reason for his own opinion to you in some detail? 16 A. Yes. 17 Q. I am interested in the penultimate paragraph on page 2 18 which says you cannot even get unanimity on that 19 point -- the point you were referring to there was 20 whether or not the fingerprints had been correctly 21 identified -- let alone establish that, even if there 22 was a mis-identification, it was made wilfully. 23 A. Where are we in this page? 24 Q. The penultimate paragraph. 25 So there is at 19th July 2001 no agreement amongst page 149 1 the experts that you've consulted as to whether the SCRO 2 officers are correct or not? 3 A. Yes. 4 Q. You say last on page 2, and this is a passage to which 5 you have already referred by my learned friend 6 Miss Galbraith: 7 "Although I tend to be unduly swayed by the last 8 expert to whom I have spoken ..." 9 Firstly, as I read that letter, who was the last 10 expert to whom -- 11 A. It would be Robert Mackenzie. 12 Q. Mr Mackenzie. Why unduly influenced? 13 A. I have already made the point that I concluded that 14 every expert I spoke to was genuine and was trying to be 15 honest. So not having any doubts about their 16 credibility, I invariably found their technical 17 explanation for their view persuasive. Unduly: well 18 perhaps I shouldn't have said "unduly", perhaps I should 19 have just have said I tend to be swayed by the last 20 expert. 21 Q. Thank you. Can we move on to CO4076, please. That 22 seems to be a letter from Mr McKie to yourself of 23 May 2002; is that correct? 24 A. Yes. 25 Q. It refers to the opinions of 129 world fingerprint page 150 1 experts. 2 A. Yes. 3 Q. Perhaps something of a facetious question but did you 4 see opinions of any of these 129 world experts? 5 A. Well, no is the answer to that. I saw the opinions of 6 the experts whose reports or conclusions I referred to 7 in my report. Whether they are amongst the 129, I don't 8 know. 9 Q. If there are 129 and they are all to express a view on 10 Y7, QI2 and the other marks we may be here for quite 11 some time. 12 Can we have a look at page 2, please. The last 13 paragraph of that says: 14 "I would appreciate your comments and early 15 confirmation that you do not intend to accept any SCRO 16 experts as expert witnesses, given that organisation's 17 intransigence and failure to co-operate in establishing 18 the truth." 19 It doesn't appear that Mr McKie is going to give up 20 very easily by that last paragraph, does it? 21 A. No. 22 Q. Had you already met with him by that stage to explain 23 why you weren't prosecuting the SCRO experts? 24 A. Well, could you remind me the date of the letter? 25 Q. The letter is 2002, 2nd May? page 151 1 A. Oh, I think so. The decision to take no proceedings was 2 taken August 2001. I would have met Mr McKie shortly 3 after, so it would have been months before this letter. 4 Q. Months before? 5 A. Well, that would be my recollection. I don't recall 6 there being any delay between the decision to take no 7 proceedings and my meeting with Mr McKie. But I don't 8 actually remember when I met with him. 9 Q. In May 2002 you are still in correspondence which makes 10 it fairly clear he's not terribly happy about the 11 prospect of the SCRO experts giving evidence again? 12 A. Yes. 13 Q. Again, were you concerned about Mr McKie's reaction? 14 A. I understood his reaction. He clearly believes that 15 there was a very serious error made and more, that it's 16 not simply an error, there's criminality. In the light 17 of that I can understand the position that he is 18 adopting in that letter. 19 Q. Standing the level of publicity that this case has 20 received throughout the years, were you concerned about 21 anything else? 22 A. Sorry? 23 Q. Were you concerned about the level of publicity that 24 this case had received and the possible effect that that 25 might have on any future evidence from SCRO experts? page 152 1 A. That was a potential source of concern but I'm not 2 actually aware of any case. I mean, obviously, the 3 McKie case has been bubbling away for several years and 4 I'm not actually aware of any case suffering as a result 5 of the adverse publicity that it has attracted. 6 Q. I'm asking was there any concern that that might happen 7 around about the time of this letter? 8 A. Not that I can recall. 9 Q. The final couple of items that I would like to refer you 10 to are, firstly, CO4081. That's the letter from Mr Bell 11 to you on 31st May 2002. 12 Again, this letter makes reference to the response 13 to Mr McKie. So it is clear there was some ongoing 14 dialogue at that time. Would that be fair? 15 A. Yes. 16 Q. This letter appears to be about how to avoid 17 a constructive dismissal claim; is that correct? 18 A. Yes. 19 Q. Is it clear from the fact that the SCRO are taking 20 advice about constructive dismissal in May 2002 that the 21 intention is that these officers will never give 22 evidence again? 23 A. They were waiting for a decision from Crown Office. 24 They may have anticipated that that decision would be 25 negative. page 153 1 Q. So it appears that SCRO's position is that these 2 officers will not be able to give evidence again and 3 they are looking for confirmation Crown Office share 4 that view; is that fair? 5 A. They are looking for a decision. I mean, I think he is 6 letting me know what the possible consequences of a 7 decision are and it's certainly my recollection 8 throughout this that SCRO were keen to have the Crown 9 make up it's mind one way or t'other and the Crown's 10 position was we wanted to await the outcome of the civil 11 proceedings. SCRO were keen that we make a decision and 12 clearly he is making me aware of what implications that 13 a decision not to use them might have on their 14 employment status. 15 Q. You were asked earlier about information from Crown 16 Office to SCRO that the possibility was that if SCRO 17 opted to use these officers again, the Crown Office, as 18 the customer, effectively, might object to their use. 19 A. Yes. 20 Q. Do you recall when that was done? 21 A. Sorry, when the ...? 22 Q. Do you recall when that intimation took place? 23 A. No, not the reference to the specific document. 24 Q. So far as the letter of 31st May 2002 is concerned, the 25 one we're looking at right now, that had no effect on page 154 1 the Crown's position, they were merely being asked for a 2 view; is that right? 3 A. We weren't asked for views, no. 4 Q. You were being asked for a view but it had no particular 5 affect on your position? 6 A. Sorry, are we being asked for our views? I don't think 7 we are. He is offering a suggestion as to a response to 8 Mr McKie. 9 THE CHAIRMAN: The third paragraph seems to be, as it were, 10 warning the Crown -- 11 A. Yes. 12 THE CHAIRMAN: -- it could get involved in this if it 13 maintains its attitude. 14 A. I mean, it's really just an update being given by SCRO 15 as to the advice that they have received from an 16 employment specialist; so he's just drawing it to my 17 attention and the possible implications of that advice. 18 MR HOLMES: Yes, it relates to a constructive dismissal 19 claim. 20 A. Yes. 21 Q. In fact, you will be aware that one of the officers did 22 end up taking SCRO to the employment tribunal. 23 A. Yes. 24 Q. And was successful on an unfair dismissal claim. 25 A. Yes, I'm aware of that from press reports. page 155 1 Q. Can we briefly look at CO4086, please. 2 Again that is a letter from Mr Bell to you, this 3 time on 12th February 2004. So nearly two years later 4 it's still being debated whether these officers were to 5 return to giving evidence. 6 A. Yes. 7 Q. Mr Bell reports that Mr Innes' recommendation is they do 8 return to giving evidence? 9 A. Yes. 10 Q. But, so far as you recollect, they never did so? 11 A. That is my understanding, yes. 12 Q. It is clear also from the final paragraph that the 13 officers expected to return to giving evidence? 14 A. Yes. 15 Q. And with individuals who had taken quite some 16 considerable time to qualify and many years of 17 experience behind them, that's only to be expected; 18 isn't that fair? 19 A. Yes, yes, and I think it is regrettable that it took so 20 long to resolve the matter. I think we started out with 21 very good -- well, I think the reasons were very good 22 from the very beginning that the civil proceedings 23 created the possibility of a judicial determination that 24 could have resolved the matter one way or t'other and we 25 were waiting for those. It's just unfortunate that the page 156 1 civil proceedings never provided that outcome and they 2 took an interminable time. 3 THE CHAIRMAN: Much longer than one might have anticipated 4 because there were complications. 5 A. Yes. 6 MR HOLMES: Can I ask, does that final paragraph suggest to 7 you that the Crown Office position, that nothing would 8 be done until after the outcome of the civil trial, had 9 been communicated to these officers or not? 10 A. I don't know what was said to the officers about the 11 Crown's position. SCRO clearly knew what the Crown's 12 position was and they refer to it in the second 13 paragraph. 14 Q. It's made clear that the position would be kept under 15 review in the light of developments in the civil case. 16 A. Yes. 17 Q. You agree that it's unfortunate that the decision took 18 some considerable time -- 19 A. Oh absolutely. Absolutely. 20 Q. And you agree that it was unfortunate that the decision 21 was not made despite the fact that the officers 22 themselves went through what has been referred to as a 23 "return to work matrix" and I think what you referred to 24 in your own evidence as a "re-education programme"? 25 A. Yes. page 157 1 Q. But, to your knowledge, none of these officers ever 2 returned to giving evidence after this case? 3 A. To my knowledge, they didn't, no. 4 MR HOLMES: Thank you very much. 5 THE CHAIRMAN: Have you any questions? 6 MR MOYNIHAN: Yes, sir. I think with an apology to all, I 7 am about to confess I made a completely elementary 8 mistake that Sheriff Gilchrist pointed out to me. I 9 forgot to ask him to adopt his statement, but there was 10 more of a reason. There is one particular part of it he 11 wishes to correct; so if I could give him the 12 opportunity to correct that and then release him for 13 other matters. 14 A. It is paragraph 28 which records that I wish to speak to 15 the four experts Peter Swann, Malcolm Graham, Robert 16 Mackenzie and Alan Dunbar. The next sentence then goes 17 on to suggest that they agreed with the identifications 18 of Y7 and QI2. 19 Now, of course, it really should say "they agreed 20 with the identifications of QI2 and/or Y7" because at 21 that stage Robert Mackenzie, although he subsequently 22 agreed with the identification of QI2, had not actually 23 looked at it. I'm not really sure what Alan Dunbar's 24 position was but I presume it would be similar to Robert 25 Mackenzie's. Of course, Peter Swann had examined Y7. page 158 1 So it's just that it's slightly misleading. It 2 rather suggests -- well, it does suggest that I expect 3 that I thought they agreed with the identifications of 4 both when what I really meant to say was that to the 5 extent that they had examined any of the questioned 6 marks, they agreed with the identifications of SCRO. 7 So I think it could be corrected by in the third 8 sentence in paragraph 28, it should read: 9 "They agreed with the identifications of QI2 and/or 10 Y7." 11 Sorry, I hope that's clear. 12 THE CHAIRMAN: That's fine. 13 MR MOYNIHAN: I have no other questions. 14 THE CHAIRMAN: Could I just detain you for a moment and get 15 one matter clear in my mind. On the issue of any of the 16 four witnesses of whom it was known publicly had 17 formed an opinion which was disputed, if any of them 18 were called to give evidence by the Crown, your concern 19 was they would be cross-examined about that and that 20 would, as it were, detract from the essence of the 21 prosecution, a question which had nothing to do with the 22 subject at all? 23 A. Had the potential to do that. 24 THE CHAIRMAN: Yes, and defence counsel would be likely to 25 take the opportunity, if they wanted to attempt in some page 159 1 way to discredit them. So as long as there was what I 2 might call a cloud hanging over it, until it was 3 dispelled it was better to keep those witnesses from 4 being put in that position? 5 A. Yes. 6 THE CHAIRMAN: So far as other people who had expressed a 7 view, that's within Scottish Criminal Records Office, 8 that wouldn't necessarily be known and there would be, 9 as I would have thought, no obligation to disclose the 10 fact because it would be irrelevant to the prosecution 11 that was being undertaken. 12 A. Yes. I don't think it would be exculpatory evidence 13 that had to be disclosed and it would be my 14 understanding that the involvement of the other SCRO 15 officers would not be widely or publicly known and 16 therefore the likelihood of the matter being raised by 17 defence counsel was negligible. 18 THE CHAIRMAN: So really, dealing with your first concern, 19 that didn't arise as far as they were concerned or only 20 to a very limited, marginal extent? 21 A. Yes and also that even if it had been known, their 22 involvement was so much less, almost peripheral -- well, 23 perhaps not peripheral, but it was so much less, that 24 the scope for defence counsel making mischief would be 25 much reduced. page 160 1 THE CHAIRMAN: Thank you very much. Thank you for your help 2 and I hope we haven't disrupted your own list too much 3 by keeping you here so long. 4 A. Thank you. 5 (The witness withdrew) 6 THE CHAIRMAN: What do you want to do? 7 MR MOYNIHAN: Sir, we are currently making an enquiry. The 8 next witness would have been Sheriff Murphy but I know 9 he had other professional commitments tomorrow and 10 Miss Alan is making an enquiry with him whether he would 11 prefer to start even tomorrow morning or if I could hold 12 him back to next week. 13 THE CHAIRMAN: I leave it to you to accommodate him because 14 obviously he has other duties. 15 MR MOYNIHAN: I suspect that starting this afternoon would 16 make no difference either way to him coming back. 17 THE CHAIRMAN: Well, I think we shouldn't prolong too long 18 after the time we are sitting if we are not going to get 19 anywhere. 20 MR MOYNIHAN: What I was thinking, sir, it 3.55. I think we 21 are probably is as well to adjourn just now because I 22 don't think to give Sheriff Murphy ten minutes this 23 afternoon would make a jot of difference really to the 24 question of his availability. 25 THE CHAIRMAN: I leave it to you to arrange as best we can page 161 1 what is convenient to him. Thank you very much. We 2 will sit again at 10.15 in the morning. 3 (3.55 pm) 4 (Adjourned until 10.15 am the following morning) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25