page 1 1 Thursday, 25th June 2009 2 (10.15 am) 3 MR MOYNIHAN: Good morning, sir. The first witness today is 4 Sheriff Murphy. 5 SEAN FRANCIS MURPHY (affirmed) 6 Examined by MR MOYNIHAN 7 Q. I am a bit worried -- you're rolling up your sleeves! 8 A. Perhaps a bit later in the day. We will see how it 9 goes ... 10 Q. Good morning. You have provided a statement to us. 11 A. Yes. 12 Q. Do you have that available to you? 13 A. Yes, I have it in front of me, thank you. 14 Q. You signed that and are content with its contents? 15 A. Yes. 16 Q. What I want to begin by asking is really the history and 17 the development and the evolution of the issues as they 18 came to be at the trial. 19 A. Yes. 20 Q. As the trial Advocate Depute I take it from your 21 statement that you had no involvement in the early 22 preparation of the case for trial? 23 A. I think the earliest involvement I had was some two or 24 three weeks before the trial proper. I mean, I'd been 25 told, I think, in advance that it would be fetching up page 2 1 in my sitting but I wasn't involved in any of the, sort 2 of, marking decisions or anything at that stage. 3 Q. So that people understand the system at that time, as 4 the trial Advocate Depute would you have been involved 5 in a number of other cases simultaneously in a sense? 6 A. Yes, I was. In those days trials were organised in two 7 week sittings with perhaps six or eight cases and the 8 papers would be delivered to the Depute responsible for 9 that sitting ten days before and you would work out a 10 running order of the cases once you had that 11 information. 12 Q. When you say the papers would arrive ten days or so 13 before, at that time, ten days or so before, one assumes 14 whenever the papers did arrive you either might be free, 15 ready to prepare, or you might in fact already be 16 involved in some trials? 17 A. That's exactly right. The ideal was that one was meant 18 to rotate office duty periods with sittings but by this 19 period the general workload was such, because of the 20 expansion in the number of High Court indictments, that 21 that wasn't always possible. 22 The papers were delivered to the Advocate Depute's 23 box in Parliament House on the Friday prior to the 24 Friday prior to the sitting. That's how the ten days 25 worked out and we'd taken them home that weekend or take page 3 1 the first three or four home that weekend and start 2 going through them. 3 Q. By that stage, ten days or so before the trial, were 4 these papers being delivered so that you could make 5 decisions for pre-trial preparation or were the papers 6 being presented to you as a fait accompli, a set ready 7 to go to trial? 8 A. They were presented with you, in effect, as if they 9 should have been fully prepared and ready to go to trial 10 but from time to time, as one worked through, one would 11 find something one was unhappy about and you might ask 12 for further steps to be done. But broadly speaking they 13 were meant to be fully prepared by the time you got 14 them. 15 Q. By giving you the papers ten days in advance, was the 16 intention that you would review and perhaps take last 17 minute decisions of an important nature in relation to 18 the case or was it simply to give you some opportunity 19 to study and prepare cases? 20 A. No, no. The cases were meant to be completely ready for 21 trial by that stage. The purpose in giving them to you 22 was so you could evaluate the witness running order and 23 give the instructions for the actual trial. 24 Q. Again, so that everyone understands the procedure at the 25 time. There would be delivered to you, would there be page 4 1 two things, one, a correspondence file? 2 A. Not exactly. What was delivered to you were what was 3 called the Crown precognition which would be the 4 statements of all the witnesses, so the precognitions of 5 all the witnesses accompanied by a narrative, a case 6 history and what was called the Crown Office file. That 7 included a correspondence file but contained other bits 8 and pieces. The correspondence would be -- it was a 9 buff cardboard folder. When you opened it up, the 10 left-hand side would be correspondence relating to the 11 case and the right-hand side would be various notes, a 12 copy of the original indictment, any notes left by the 13 person at Crown Office High Court Unit who had actually 14 prepared the precognition, and any requests from Crown 15 Counsel's instructions at an earlier stage and the 16 replies to those requests on the right-hand side. 17 So, yes, it was a correspondence file but it wasn't 18 simply that. It included a whole variety of papers 19 relating to the case but things which one would not use 20 for the prosecution as such. 21 Q. So ordinarily as a Trial Depute, therefore, you would 22 have those two sources of information, the Crown Office 23 file, the last one you described, and the precognition? 24 A. Yes. 25 Q. And the precognition, again so that everyone page 5 1 understands, would be plastic ring-bound volumes? 2 A. Generally, yes. 3 Q. As many volumes and as thick a volume as would embrace 4 all the witnesses in the case? 5 A. Yes, some of them were just single volume and that would 6 be accompanied by a copy of all the documentary 7 productions in the case. 8 Q. So you would have all of the witness statements? 9 A. Yes. 10 Q. All of the documentary productions? 11 A. Yes. 12 Q. All marshalled into these volumes called the 13 precognition? 14 A. Yes. Unfortunately, precognition has two meanings: the 15 sort of statement that is taken after an initial witness 16 statement in Scotland by, in those days, Crown or 17 defence would be called a precognition but the word 18 precognition was also used within the Crown Office for 19 the volume that was given to the Depute prior to a 20 trial. 21 Q. So the reason for asking about the precognition, the 22 volumes, is that at least in theory those were 23 self-contained, the Trial Depute would not need to look 24 outside the precognition for the material he required to 25 prosecute the case? page 6 1 A. Ideally that would be the situation. It was basically 2 the package you required to conduct the trial. 3 Q. In addition to the witness statements, you have 4 mentioned that there's a narrative at the beginning of 5 the precognition. 6 A. Yes. 7 Q. Did that narrative, as you say, cover the history of the 8 case, the procedural history of the case? 9 A. The answer to that is yes and no. When you opened it, 10 there was ordinarily a copy of the indictment, a list of 11 witnesses. Then there would be a case history and there 12 would be notes on the history of the accused and then 13 there would be a part headed "narrative" that simply 14 gave you a summary of the facts in the case which was 15 always immediately followed by a section headed 16 "analysis of the evidence", which would be something 17 prepared by the Marking Fiscal, basically setting out 18 the bull points to establish whether there was 19 effectively, setting out the bull points in relation to 20 the corroboration in the case and so on and, thereafter, 21 the witness statements would follow. 22 Q. So if I wanted to understand and, indeed, if anyone 23 wanted to understand what the issues were anticipated to 24 be in the lead-up to the trial, then as you would have 25 done when you first opened the file they should look to page 7 1 the narrative of facts and, more particularly, the 2 analysis? 3 A. That's the starting position to give you an overview of 4 the case. 5 Q. With that in mind if I ask you, as we have a copy here 6 of an excerpt from the precognition if I can have 7 displayed for you please CO2561. You may not have seen 8 this for some period. 9 A. Yes. 10 Q. It's headed up an "Analysis of the evidence". 11 A. Yes, that's the bit that would immediately follow the 12 narrative. 13 Q. Would this have been prepared by personnel at the 14 Fiscal's office who would be responsible for the 15 investigation and precognition in the case? 16 A. Yes. What happens is the Local Fiscal's office prepares 17 this and sends it into Crown Office and it's then looked 18 at by a High Court Marking Fiscal in Crown Office and 19 passed on to the Advocate Depute. 20 Q. This relates, as it says, in the third paragraph to the 21 crime of perjury, which was the crime you were 22 prosecuting in this case Ms McKie for. 23 A. Mm-hm. 24 Q. What I'm interested in is some of the comment that's 25 actually built into the document. page 8 1 A. Yes. 2 Q. The crime of perjury in the third paragraph, there is a 3 mention. The third line is applying it to Ms Cardwell, 4 as she was now Ms McKie: 5 "She has called into question the reliability and 6 infallibility of fingerprint evidence." 7 A. Yes. 8 Q. Just stopping there, as a matter of historical fact, 9 that was plainly the basis upon which the importance of 10 the case was presented to you? 11 A. That matter was raised but that wasn't necessarily 12 central to the perjury prosecution. The issue was 13 perjury and not really the reliability and fallibility 14 of fingerprint evidence. That was one element in the 15 proof of perjury. This is was certainly a concern that 16 people had but it wasn't necessarily the fundamental 17 concern to me as a prosecutor because perjury was the 18 issue. 19 Q. Perjury was the issue. One of my reasons for 20 highlighting that sentence is before you were a 21 prosecutor you had had a number of years of experience 22 of defence work in crime? 23 A. Yes. 24 Q. How long had you been practising as a criminal 25 practitioner? page 9 1 A. I had started doing summary trials as a second-year 2 trainee with Ross, Harper and Murphy in 1990, I think, 3 to '91. Then I was a qualified solicitor for about 4 three months and then went to the bar and started 5 divving(?) in November '91, called to the bar in July 6 '92 and was effectively pretty much a full-time junior 7 defence counsel right up until I went to Crown Office in 8 September '98. 9 Q. In the run-up to the Shirley McKie trial, based on all 10 your years of experience, what perception did you have 11 as to the reliability of fingerprint evidence in the 12 Scottish criminal courts? 13 A. They were regarded as pretty much reliable evidence that 14 someone had been there or touched something. I couldn't 15 remember a single case where I remembered it being 16 challenged. I have to say when I first started out it's 17 something that, from time to time, I did wonder about 18 but in practice it was never challenged and normally the 19 defence position was trying to explain what your 20 client's fingerprint was doing there rather than to 21 argue it wasn't his print, very much as is the position 22 with regard to DNA evidence. 23 Q. So we heard evidence yesterday from your colleague 24 Sheriff Gilchrist, that if a fingerprint was found on a 25 knife at the scene one would expect the argument page 10 1 normally to be how the accused's fingerprint got to be 2 on that knife? 3 A. Absolutely, rather than to challenge the actual 4 fingerprint analysis. That was very much the practice. 5 Q. We'll go on and look at the sentence just a little bit 6 later but when you first picked up the papers -- and we 7 have the date of a meeting you went to on 30th March so 8 we know that you had the papers by the 30th -- 9 A. I must have had the papers in advance of this case 10 because my notebook indicates I went to SCRO on 30th 11 March, so that was before the ten-day period. One 12 occasionally got advance notice of trials. 13 Q. Was there anything you were aware of by that date that 14 suggested to you the issue in the trial would come to be 15 whether or not Y7 was Ms McKie's fingerprint? 16 A. Oh, yes. I mean, the fundamental starting point seemed 17 to be the discovery of Y7, so that was a central matter 18 in the case. 19 Q. Sorry, I think you misunderstood me. It's back to this 20 question of the fingerprint on the knife and how it got 21 there. 22 A. Yes. 23 Q. Was the expectation when you first got the papers that 24 the question would be how Ms McKie's print came to be on 25 the doorframe rather than whether it was her print or page 11 1 not. 2 A. No, because by that time I was aware the defence were 3 awaiting incoming papers from the American experts. So 4 by the time I was involved I knew that there was going 5 to be some argument about the fingerprint rather than 6 how it came to be there. I knew that the case was going 7 to be in part about fingerprint analysis. 8 Q. So if we roll down then because it may be by the time 9 you were involved matters had moved on. 10 A. This is prepared long before -- this document is 11 prepared long before my involvement and things had 12 undoubtedly moved on, yes. 13 Q. If I carry on just immediately after the sentence that's 14 highlighted just now and if we bring up the next 15 paragraph as well. We've highlighted: 16 "She has called into question the reliability and 17 infallibility of fingerprint evidence. Miss Cardwell 18 has denied on oath that she entered the house of Marion 19 Ross and had left a print on the bathroom door surround. 20 [She] did not suggest during her evidence that the print 21 had been planted. She did, however, leave the matter 22 open by saying she was not an expert. 23 "Chief Inspector Hogg [who had been a witness] has 24 provided a number of articles regarding the planted and 25 manufactured fingerprints. Neither he nor any of the page 12 1 other police or SCRO fingerprint witnesses suggest that 2 there was anything suspect about the print Y7. The 3 independent SCRO witnesses Charles Stewart and Hugh 4 Macpherson have no concerns about the propriety of the 5 impression. The fingerprint impression has been 6 repeatedly photographed and compared with two separate 7 fingerprint forms provided by Shirley Cardwell." 8 This is the key sentence: 9 "There is no doubt that the comparison shows her 10 prints and the impression to be identical." 11 A. Yes. 12 Q. That's at least as it was when the case came back to 13 Crown Office? 14 A. Yes. 15 Q. Are you indicating that by 30th March, by the date on 16 which you had the meeting, that you were aware that 17 things might actually be moving on from that position? 18 A. This is effectively a summary of the Crown position 19 based on the SCRO reports and I understood that, but by 20 the type of my involvement one of the reasons I went to 21 see the SCRO people was because by that time I was aware 22 that the question wasn't plant, the question was 23 challenging whether or not SCRO had made a correct 24 identification of Y7. 25 Q. How did you first come to know that? page 13 1 A. I simply can't remember. I can't remember the details 2 without access to the Crown Office file but I have a 3 recollection that the case had fetched up in a prior 4 sitting with which I was not involved and had been 5 continued for the American reports and, therefore, I 6 would have been told the reason for the prior 7 adjournment. In fact, it would have been on the Crown 8 Office file. The Depute dealing with it at the point 9 when it previously adjourned would have said for defence 10 expert reports and I think by that time I was also aware 11 that Donald Findlay was for the defence and it's 12 perfectly possible he and I discussed it although I 13 don't actually remember how I came to know. 14 Q. There was also the suggestion -- or there has been in 15 previous statements you have given -- and I appreciate 16 we're going back 12 years or in this case maybe 17 10 years, the suggestion that your conversation with 18 Donald Findlay had been later than 30th March, had been 19 into April, had been very shortly before the trial 20 commenced? 21 A. There was a conversation between us shortly before the 22 trial commenced when he told me when the American 23 materials were coming in because they came in very much 24 at the 11th hour and he indicated to me there was no 25 formal report from David Grieve but that I would be page 14 1 provided with a synopsis or a copy of such statement as 2 the defence had, so I do remember that. 3 But it's possible, if I had known he was defence 4 counsel from the start, there may have been some 5 conversation about it because the case was -- topical 6 isn't quite the word. The case was talked about because 7 it was so unusual for a police officer to be indicted. 8 I simply can't remember but it's possible that we may 9 have spoken about it at an earlier stage. But it's 10 highly likely we spoke about it more than once. 11 Q. We started off by talking about the Crown Office file. 12 A. Yes. 13 Q. If I can bring you up another example about a Crown 14 Office file, CO3922. 15 A. Yes, that's the front, what the front cover would look 16 like. 17 Q. That would simply be a buff folder? 18 A. That's the buff cover that would go right round and when 19 one opened that up, the left-hand side would be the 20 correspondence and the right-hand side the other 21 documents I spoke of. You can see there at the section 22 "disposal", the trial Advocate Depute would make those 23 notes there indicating who had appeared for both sides 24 and what had happened. And where a trial had been 25 adjourned he would note that and the date to which it page 15 1 was adjourned and normally underline that. You could 2 end up, in fact, where a case had been adjourned more 3 than once with those sort of notes going right on into 4 the inside cover and up and down it in columns depending 5 how often the case had called. 6 Q. So this happens to be an example of a folder or Crown 7 Office file for the preceding case, HMA v David Asbury, 8 it was of a type that would have been routinely kept for 9 all cases? 10 A. Yes. 11 Q. For the prosecution of Ms McKie, do you recollect 12 whether you had a buff folder for that case? 13 A. I would imagine so. I honestly can't remember. I mean, 14 I just presume I did but I can't actually remember now 15 what was written on it or what it would look like. 16 What would happen normally with perjury because I 17 was involved in this myself in other cases, the Trial 18 Depute if he thought that there was a perjury matter 19 would refer the matter usually to the Home Depute for a 20 separate decision and the Home Depute would ask someone 21 to look into it. If a decision was made to prosecute, I 22 would expect a second folder to be prepared for the 23 perjury trial separately from the case out of which the 24 perjury issue had arisen. 25 Q. As you indicated, on this particular one we see that it page 16 1 records the date of the sitting in Glasgow? 2 A. Yes. 3 Q. Immediately below that, disposal, there is a very brief 4 note that the matter was obviously dealt with in 5 Glasgow, the trial judge would be Lord Dawson, Mr Dewer 6 and Miss Davis acted for the Crown, with now Sheriff 7 Taughten and Mr Alan for the defence? 8 A. Yes. 9 Q. Very brief detail of the trial; so it's obviously 10 written at the end of the trial with the verdict. 11 A. Yes. 12 Q. At the end of the McKie trial would you have written a 13 summary, something similar to that but with an 14 acquittal? 15 A. Yes. 16 Q. If, as I'm aware, there is no such entry on this file 17 then there must have been another file? 18 A. I imagine a separate one would have been prepared, yes. 19 Q. Since we are talking ten years ago would it be fair to 20 say that my inability to show to you the file for McKie 21 has a certain difficulty for you? 22 A. Yes, because when the person came to take a statement 23 from me for the Inquiry and I was asked the preparation 24 advance notice and things my recollection was I had gone 25 off earlier and I was asking if that was available page 17 1 because that would have told me the history but I 2 understood at that point it couldn't be found and 3 certainly wasn't available, yes. 4 Q. You may actually have to stay closer to the microphone. 5 A. Do you want me to say that again? 6 Q. No, no. If you hear your voice reverberate then the 7 microphone is working. 8 A. I mentioned I had the papers, obviously, before the ten 9 days. If a trial was scheduled for the Depute or some 10 sort of advance notice there would be a red mark up on 11 the top right-hand column, a little sticky little red 12 dot would be put on there indicating the Depute was to 13 get it before the ten days, before the usual ten-day 14 period. 15 Q. So if we move just then to your own recollection and the 16 particular date we are able to track from your own 17 documents, 30th March, you met two of the Fingerprint 18 Officers, Mr Macpherson and Mr Stewart? 19 A. Yes. 20 Q. At that date when you met them were you already 21 anticipating that an issue would be whether the 22 identification was correct or not? 23 A. I think so because I imagine that's why I would have 24 gone to see them. 25 Q. If it were not, if it were simply a question of page 18 1 planting, would you have taken the precaution of 2 speaking to the Fingerprint Officers? 3 A. I knew that Y7 was one of the key features in the trial. 4 For me it was one of the two key features in the trial 5 and it was highly likely I would have gone speak to them 6 because I had a habit of consulting with experts before 7 a trial. But can I just say one thing in relation to 8 the issue of planting, I never considered planting to be 9 a significant factor because I had dealt with cases in 10 the past and I had a prior consultation in another 11 matter in which I was defence counsel on the question of 12 planting and I was of the view that planting a 13 fingerprint is virtually impossible. It wasn't an issue 14 and I didn't understand that to be an issue. I was 15 concerned about the analysis of Y7, so far as I recall, 16 throughout. 17 Q. And the second issue that you mention, you said the 18 analysis of Y7 was one of the issues. What was the 19 second issue? 20 A. We believed there was evidence from one of the police 21 officers who was involved with the crime scene 22 management that he'd actually seen Ms McKie at a time 23 when, according to the extraneous material, she should 24 not have been there -- Mr Kerr. 25 Q. So the two issues were, in a sense, a practical one: did page 19 1 you have eye witness evidence placing Ms McKie in at 2 least a situation where she had an opportunity to touch 3 the doorframe. 4 A. Yes. I believe I had eye witness evidence. There were 5 certain difficulties about it but I believed there was 6 one eye witness who placed her at a time when, according 7 to such records as I had, that did not coincide with any 8 of the times when she had been there officially, as it 9 were. So I regarded that and the discovery of Y7 as the 10 two key elements in the case. 11 Q. Let's just deal with that particular point, the Kerr 12 point, and then we will come back to the fingerprints. 13 You have explained very carefully in the witness 14 statement, I will just give you a chance to explain it 15 in your words to cross check, that from your analysis of 16 the papers you thought that there was a possibility that 17 Mr Kerr, if the log was correct, must have seen Ms McKie 18 in the house in the course of the morning of the 19 Saturday, 11th January, when all the other evidence 20 suggested she had no reason to be there? 21 A. That's right. 22 Q. You knew though from the logs that she had a legitimate 23 reason to be at the house later on that day, in the 24 early evening. 25 A. Not from the logs because her appearance at 5.00 page 20 1 roughly, the team time appearance if I can call it that, 2 because the time was never precisely established, 3 doesn't actually appear in the log, but I knew from 4 other evidence that she had been with 5 Detective Sergeant, was it Shields, I think, her 6 partner, to collect the log. So I was aware of that. 7 She'd also been there at an earlier occasion in 8 relation to keys so that she and Detective Sergeant 9 Shields could look at the layout. There was an unusual 10 sequence of doors around the porch so they had been 11 there either on the Thursday or the Friday -- I can't 12 remember -- to check that out. So I knew when, as it 13 were, the official or legitimate visits by Detective 14 Constable McKie had been made to the house and none of 15 those appeared to coincide with the times, according to 16 the log, when Mr Kerr had been there but there was a 17 difficulty in that he'd given two or three statements at 18 the beginning and couldn't actually pin down on which 19 date or time it was. 20 Q. Before I ask about particular enquiries you have made, 21 in relation to Mr Kerr, I picked you up as saying in 22 your own witness statement to the Inquiry that you, in 23 fact, understood the defence to be similarly concerned 24 about Mr Kerr, paragraph 14 of your statement. 25 A. Yes, simply because Donald Findlay and I were speaking page 21 1 about things as the trial went along and I had indicated 2 to him that I had this evidence that I believed would 3 put her -- ultimately, I believed would put her there on 4 Saturday morning and I had given him prior notice that I 5 would be calling Constable Lees, the logging officer, 6 and Mr Kerr back-to-back, I can't remember now which day 7 but on a particular day of the trial. So that was a 8 pretty critical point. So I had said to him, "This will 9 happen tomorrow or Wednesday", whenever it is, and I 10 just remember, basically, from that conversation that 11 the matter was obviously a concern to him. 12 Q. In this particular case rather than simply relying on 13 the preexisting precognitions (by that I mean the 14 individual witness statements), you had taken the 15 precaution of actually asking for some specific matters 16 to be put to Mr Kerr; is that correct? 17 A. Yes. The statements were -- it would be a slight 18 exaggeration to say all over the place, they were rather 19 vague and he had said different things at different 20 times. So I asked my junior after the trial had 21 started -- I can't remember, if I actually asked Mr Kerr 22 to come in on an earlier day. I've done that 23 occasionally with witnesses prior to them giving 24 evidence but certainly he was available at one point and 25 I'd asked my junior to give his copy of the log to page 22 1 someone from the Fiscal's office and to have a statement 2 taken to see if we could -- sorry, a statement taken is 3 not quite ... to ask about it to see if he could firm up 4 and explain what his position actually was and there was 5 no written record but what I understood to be reported 6 back was that the meeting with Shirley McKie at about 7 lunchtime one day in the police station had probably 8 been the Thursday or Friday and the sighting was when he 9 was there on the Saturday and I understood that to mean 10 before lunchtime, 1.15 or whatever, when he'd left on 11 the Saturday because I understood this statement had 12 been taken by reference to the log. But of course in 13 the event his evidence was it was much later than that. 14 Q. Again, so everyone understands this long chain of 15 communication, as at that date as an advocate, were you 16 permitted to speak to a witness such as Mr Kerr? 17 A. No. I could consult with expert witnesses or I could 18 consult to ask for advice on a certain matter, 19 essentially expert witness testimony, but I would never 20 speak to an ordinary witness, that was the procedure. 21 You would ask the sitting manager to have someone from 22 the Fiscal's office speak to the witness and effectively 23 take an additional statement. Although, as I say, in 24 this case my recollection is it wasn't written down. It 25 was simply reported back verbally. page 23 1 Q. This is not just a matter of your own practice; this 2 would be ethics of the profession at that time, that you 3 as an advocate could not speak to a factual witness? 4 A. It was effectively standing orders for both Crown and 5 defence counsel. Apart from your own client and experts 6 you didn't speak to any other witnesses -- apart from 7 expert witnesses and one's own client one wouldn't speak 8 to a witness involved in a case at all. 9 Q. So you, in effect, caused inquiries to be made through 10 the only channels available to you and what was reported 11 back to you supported the view that Mr Kerr could place 12 Ms McKie at the house at the time where it appeared she 13 had no legitimate reason to be there? 14 A. I thought he was going to place her in the house some 15 time on the Saturday morning, which did not coincide 16 with the police accounts of when she was legitimately 17 there, yes. 18 Q. We will close this down reasonably quickly, you 19 explained very carefully in your witness statement that 20 in the event when called to give evidence, as does 21 happen from time to time, Mr Kerr's account was 22 different? 23 A. Yes. I do remember glancing across the table and there 24 was an enormous sigh of relief from Mr Findlay, yes. We 25 did exchange a glance at that point, yes. page 24 1 Q. So if we move back then to the question of the 2 fingerprint identification. 3 A. Yes. 4 Q. I can assist -- unfortunately, I may not have all the 5 bits of information on the computer system. I think we 6 have some copies. We have a limited number of copies of 7 a document that will in fact be shown to others in due 8 course. 9 I'm looking at a document which has a code DB0170 10 but I don't understand it to be on the system. I think 11 a copy may be shown to you and what I am going to look 12 for is -- it would have been on the PDF page 13 but 13 we're going to have to struggle to find it. 14 A. Do you want me to count through 13 pages? 15 Q. If I explain to you what is about to be shown are the 16 notes taken by Mr Wertheim, who is the American expert 17 who gave evidence. 18 This indicates if we look at the first page -- I 19 will start with the first page -- he has written what 20 would seem to be a log of his own involvement. The 21 first entry which ties in with his reports written in 22 the American style, 03, the month, March, 24, so 24th 23 March 1999, he met Angela McCracken of Levy & McRae who 24 were the defence solicitors. So it would seem, and 25 that's consistent with his reports, that he was involved page 25 1 by 24th March 1999. I'm not aware when he was actually 2 instructed but certainly he was involved by 29th (sic) 3 March 1999. 4 Then I think it is the thirteenth page. In fact, I 5 now see there are numbers on the top right-hand corner. 6 So it's 13 of 16? 7 A. So it starts as an entry dated 30th March. 8 Q. It starts with an entry under 30th March and the first 9 line -- we may need to refocus ... that's better, thank 10 you. This perhaps explains why it is better to have 11 computer technology. 12 It begins with an entry on 30th March 1999. He 13 arrived St Vincent Street, which I think is 14 Levy & McRae's office, and viewed logs, sketches and 15 reports. 16 Then the second entry is at 10.30 that morning he 17 arrived at court, he was escorted by Mr Bradley to the 18 witness room, provided with documents and the doorframe 19 for examination and photography and then carried 20 photographs. Now, Mr Bradley, Iain Bradley, was he -- 21 A. I was trying to remember when your people came to speak 22 to me. Iain Bradley was the Sitting Manager at the 23 time. When I was first spoken to I couldn't remember if 24 it was Iain Bradley or David Griffiths in those days but 25 would suggest it was Ian Bradley. He is a Procurator page 26 1 Fiscal who was, effectively, the High Court Manager at 2 the Glasgow High Court at the relevant period. 3 Q. Of the various Fiscals who were involved in the local 4 office, ie had been involved in the preparation of the 5 case? 6 A. That would be Kilmarnock. 7 Q. Or it might in fact have been Glasgow for some reasons. 8 A. I'm sorry, the Asbury case was Kilmarnock originally, 9 yes. 10 Q. By the time the papers come to you as the prosecuting 11 counsel, which office or Fiscal is it that you are 12 dealing with? 13 A. Prior to trial, if I wanted something done, I would 14 either go through the person who had dealt with it at 15 the High Court Unit in Crown Office (if, for example, I 16 wanted a further statement taken or something I would 17 issue instructions to that person) or if it was close to 18 trial I would go through -- actually, it varies. It 19 could be either the sitting manager of the court in 20 which the trial was to be conducted or possibly I might 21 phone the office directly who had prepared the 22 precognition. So it varied, in fact, in practice 23 depending what you wanted done and how quickly you 24 wanted it done. 25 If, for example, I wanted an additional statement page 27 1 from a witness in Kilmarnock I might simply phone 2 the relative person who prepared the original 3 precognition in the Kilmarnock Office and ask them to 4 look into something but my recollection is, by this 5 time, although I got the papers a little more than ten 6 days, we were in the pretrial phase and I would imagine 7 most things would be done through Iain Bradley by the 8 time of my involvement. 9 Q. So it would seem from Mr Wertheim's note that he was, in 10 fact, dealing with exactly the same Procurator Fiscal, 11 Mr Bradley, that you yourself were likely to be dealing 12 with primarily? 13 A. Yes, it looks like Mr Wertheim's gone to see the actual 14 physical doorframe which, by this time, would have been 15 lodged as a production with the High Court in Glasgow 16 pretrial and so he had to go through Mr Bradley at that 17 stage. 18 Q. Again, we go no more into it than this, it just so 19 happens that on the very day when you were meeting 20 Mr Macpherson and Mr Stewart, at latest Mr Wertheim's 21 involvement is known to the prosecution authorities 22 through Mr Bradley? 23 A. I don't think I was aware that Mr Wertheim was in 24 Scotland at that time. But first things first, in a 25 general sense that, yes, he appeared to have had page 28 1 some dealings with Mr Bradley on that day, yes. 2 Q. If we move slightly on, you mentioned, in addition to 3 Mr Wertheim, a Mr Grieve, a second American expert. 4 A. Yes. 5 Q. Do I take it you never received a report from Mr Grieve? 6 A. There was no formal report lodged. Again, I can't 7 recall entirely. I seem to remember that -- I certainly 8 remember speaking to Donald Findlay and he told me -- he 9 basically apologised the defence stuff was coming in so 10 late. He told me when I'd get copies of it, which would 11 be in a couple of days time. He indicated there was no 12 formal report from David Grieve but that basically a 13 statement or a synopsis of the defence position would be 14 made available and, of course, once he arrived for the 15 trial the Crown could take a statement from him. I 16 don't actually recall the contents of that but I would 17 imagine that must have been done. I certainly have got 18 notes prepared for cross-examination so I must have had 19 some notice of what his position was. I just can't 20 remember precisely the format that I saw it in or when I 21 saw it. 22 Q. So far as Mr Wertheim is concerned, did you in fact in 23 the event see a report from Mr Wertheim? 24 A. I certainly saw materials which he had prepared for 25 court. I think there was an accompanying report, as I page 29 1 recall, effectively was a defence. 2 Q. Sorry, there was a what? 3 A. I saw what were the defence productions. 4 Q. Yes. Do you remember the defence production, what we 5 have seen as a defence production, is a photograph of 6 Y7. 7 A. Yes. 8 Q. With a copy of Ms McKie's fingerprint and acetates, 9 overlays? 10 A. That's right. 11 Q. Is that what you saw? 12 A. I saw that. I assume there was a report with it but I 13 can't remember. 14 Q. If I bring up -- 15 A. I certainly had to -- sorry. 16 Q. I will bring up a few documents in a moment. How 17 shortly before the trial actually commenced do you 18 recall you saw these productions? 19 A. I can't remember that precisely but I'm fairly certain 20 the sitting had started. It was either on the eve of 21 the sitting or it was during the sitting but a few days 22 prior to the trial commencing. 23 Q. In one of your statements you have suggested that since 24 the sitting runs for two weeks that you saw the 25 productions perhaps on the Friday at the end of the page 30 1 first week? 2 A. Yes, it could have been the Friday at the end of the 3 first week or the Friday before the sitting started but 4 I suspect it may have been the Friday at the end of the 5 first week simply because I remember Donald apologising 6 to me that everything was coming in so late, yes. 7 Q. I have, in fact, three items to show you. First of all, 8 the production which is easiest to recollect, the 9 photographs with the acetate. 10 If we bring up DB0172, please. We have to progress 11 through the pages. That's not really very illuminating. 12 If we go to the next. 13 Do you recognise that? 14 A. Well, it's a fingerprint, obviously, but it looks like 15 this is a print from, I take it, Shirley McKie, as it 16 says at the top. 17 Q. If we move through. 18 A. This looks like a defence production and the acetates 19 could be folded over and superimposed as one went along. 20 There were several acetates on top, as I recall. 21 Q. If we progress through? 22 A. That's Y7. I do remember that's that. 23 Q. Progress through again. 24 What I think has been done is that for the computer 25 system individual images have been created that have at page 31 1 the bottom the photograph of the print with, as 2 appropriate, the acetate laid across so that we have a 3 series of images of the individual acetates laid across? 4 A. Yes, superimposed here on Y7. That was Mr Wertheim's 5 way of demonstrating things. He described it in 6 evidence, I think, as running lines. He would make 7 these tracings, in effect, of the lines and superimpose 8 them. 9 Q. So then do you recollect having seen that -- 10 A. Oh, yes. 11 Q. -- as you say, not earlier than the Friday preceding the 12 start of the sitting and possibly the Friday in the 13 middle. 14 A. I can't say that with the certainty but that's my 15 general impression -- it was a relatively short period 16 before. But, yes, I did see it in advance of the trial, 17 certainly. 18 Q. If we could also bring up, please, and lay side-by-side 19 two productions, DB0167 and DB0168. If they could be 20 put side-by-side. 21 These happen to be copies of reports and if we look 22 at the top at the manuscript, 6/115 and 6/116 notations 23 for a civil production, civil process, these are reports 24 by Mr Wertheim as you say, report prepared by Pat A 25 Wertheim in each case. One is dated 2nd April 1999 and page 32 1 the other is dated 12th April 1999 and he goes through, 2 for example, in each of them, paragraph 1, some of his 3 own background. 4 A. Yes. 5 Q. If we go on to the next page in each document, we see 6 paragraph 10 in each is the point I picked up 7 previously, on 24th March he'd examined some items. 8 A. Mm-hm. 9 Q. If we proceed to the next page, he then at least in the 10 right-hand one, that's DB0168, speaks of his comparison, 11 erroneously of something called Y5 but it should be Y7. 12 A. Yes. 13 Q. Looking at what we've just taken so far, have you any 14 memory of seeing either of these documents? 15 A. I don't remember but I think it's very likely that I did 16 because again what I have come across recently is my 17 cross-examination notes and I had some notes on his 18 background and expertise. So I would imagine that I saw 19 this or something similar but I just simply don't 20 recall. 21 Q. Looking at your statement, you have a recollection of a 22 second meeting with Mr Macpherson and Mr Stewart? 23 A. Yes. 24 Q. What had prompted the second meeting with them? 25 A. The arrival of the defence materials, including, page 33 1 particularly, I do -- one thing I do have a clear 2 recollection of is they were good enough to come down to 3 the court. The materials had been lodged by the defence 4 and I had a copy and we sat in one of the courtrooms and 5 looked at this process of placing the acetates over and 6 they made certain comments to me which I had noted and I 7 seem to recall them examining the defence materials, 8 they carried basically what looked like to me 9 effectively little magnifying glasses on feet and they 10 examined some of defence materials. 11 Q. Do you remember why it was that this meeting with them 12 took place in a courtroom? 13 A. I think basically, again, that's what makes me think it 14 was eleventh hour, simply because the materials were 15 physically there and they were keen to see it as soon as 16 they could and I was keen for them to see it as soon as 17 possible so I could have their views on it. 18 Q. Do you recollect how long that meeting took? 19 A. No, I can't I'm afraid. I simply can't. I simply 20 remember sitting with them in an empty court. I'm 21 fairly certain I had seen the materials myself prior to 22 that meeting but by prior to that meeting that might 23 simply mean earlier the same day. I remember them 24 coming down because they had been telephoned and advised 25 of things and were asked to come down. It certainly page 34 1 wasn't ten minutes. They were there for quite some time 2 but I couldn't put a precise figure on it, I'm afraid. 3 Q. With the defence productions coming in late, were they 4 outwith the period required by statute for notification 5 to you? 6 A. If it had been in '95 ... yes, I would imagine so but of 7 course there had been a prior trial guide -- I think it 8 had been adjourned exactly for the defence preparation 9 to be completed and in these circumstances the Crown 10 would not normally object to the production of expert 11 materials if we had known they were coming. 12 Q. So you wouldn't object to the late receipt of important 13 productions but one option would be that you could seek 14 an adjournment of the trial? 15 A. That's correct. 16 Q. In this case you did not seek an adjournment? 17 A. That's correct. 18 Q. You have explained in your own statement why that was 19 but if you could just summarise it for us, what were the 20 considerations in your mind? 21 A. The considerations in my mind were, first of all, the 22 SCRO Crown experts had to have time to consider the 23 position and they had come down and examined the 24 materials and made certain comments at the time which I 25 had noted. The process would have been thereafter for page 35 1 me to have asked them and for it to have been open to 2 them to indicate to me any further thoughts they had 3 about it on reflection prior to my having to deal with 4 the defence witnesses in the course of 5 cross-examination. But that was not going to be an 6 urgent matter, in the sense that there was an agreement 7 between the parties that all of the logging officers 8 would be called so there would be a complete record of 9 every logging officer's position; in other words, the 10 trial wasn't going to take simply a couple of days. It 11 was going to take a reasonable period of time. 12 So the considerations were, first of all: had the 13 SCRO chaps time to respond to what they had seen and 14 they indicated to me a position about it, which was the 15 basis of my cross-examination of Pat Wertheim in part 16 and, therefore, I was satisfied on that. 17 The second consideration would be in the light of 18 having seen, as it were, the whites of the eyes of the 19 defence position charging the fingerprints, as to 20 whether or not I should seek an adjournment to get, in 21 effect, a sort of not a second opinion but a third one. 22 I wasn't terribly keen to do that principally because 23 the SCRO position appeared to be clear and, by and 24 large, I wasn't a great one for filling the place up 25 with different expert opinions because you could end up page 36 1 completely bamboozling a jury. 2 Thirdly, there was the issue the trial had already 3 gone off and one would be anxious -- although, as the 4 prosecutor, amongst other things, in fairness to the 5 accused to have the matter resolved within reasonable 6 time. Everyone appeared ready to go and I could see no 7 reason for further delay essentially. 8 Plus, of course, the fingerprint was one of the two 9 issues because I thought also I had the eye witness 10 identification and on the basis of all of that, I was in 11 a position to go, the defence were in a position to go 12 so we just decided to get on with it. 13 Q. I may have picked you up incorrectly in what you have 14 been discussing so far. Do you still have your notebook 15 covering the meetings with the various individuals? 16 A. No, what I have is my trial notebook for the sitting. I 17 have a piece of paper indicating that I'd gone to SCRO 18 on that day but I don't have the actual detailed notes 19 of what they said. What I have got is my 20 cross-examination notes. So it appears what I've done 21 is having made out the cross-examination notes, I don't 22 know where any of the earlier notes are. The 23 cross-examination notes were obviously in my trial 24 notebook but that's what I've got. So I don't have 25 written ... page 37 1 I've actually got it with me. Would you bear with 2 me a second. It's possible -- I don't think I've got 3 detailed notes of the ... I could be wrong. 4 This notebook, of course, doesn't simply cover that 5 case. It's a sitting notebook. 6 Q. If I tell you the next question was going to be whether 7 you could expand -- 8 A. I'm sorry, the notebook does not contain notes of the 9 meeting with SCRO at the court. It simply goes from -- 10 the McKie notes start at the trial proper. 11 Q. What I was going to ask you was that you had now two 12 meetings with the Fingerprint Officers, Mr Macpherson 13 and Mr Stewart. 14 A. Yes. 15 Q. You had seen, as you say, the whites of the eyes of the 16 defence production. 17 A. Yes. 18 Q. One factor in your mind would be whether you, as the 19 prosecutor, could address the defence case? 20 A. Yes. 21 Q. Plainly, from something that the officers had said to 22 you, you believed that you could address the defence 23 case? 24 A. Yes. 25 Q. What was it that the officers told you when they page 38 1 examined the defence production? 2 A. I can't remember the full details but I do remember 3 certain concerns they had. One was this process of 4 running the lines, the acetate tracing. I do recall 5 that there was a suggestion that that introduced an 6 unnecessary factor potentially of human error. 7 Secondly, I seem to remember there were certain 8 striations or markings on Mr Wertheim's photograph that 9 were not there on the earlier photograph. So there's a 10 suggestion that some sort of -- essentially, some sort 11 of ... "damage" might be too strong a word but something 12 had happened to the mark itself effectively on his watch 13 that suggested to them a certain perhaps lack of 14 expertise in handling it and there would have been 15 issues in relation to the specific points, but a lot of 16 that came down at the end of the day to an assertion by 17 Mr Wertheim that certain SCRO points did not tally and 18 an assertion by SCRO that in their view they did. So 19 there were certain points where there were never -- it 20 was just a head-on collision between interpretations of 21 certain aspects of Y7. 22 Q. You've described in your statement -- 23 A. I'm sorry, there's one other quite important aspect as 24 it came out later on. There was a major difference 25 between the American experts and SCRO on the page 39 1 interpretation of the top half of the print because it 2 was quite clearly a pressure mark. Broadly speaking, 3 SCRO, as I recall, felt that that was so fraught with 4 difficulty that it could not be relied on or should not 5 be relied upon and their identification points all came 6 from the lower parts of the mark, if I recall correctly. 7 Whereas the Americans said that certain peripheral 8 aspects of the upper part of the mark were sufficiently 9 clear and sufficiently free of pressure damage to be 10 usable and that that was a major issue. That was 11 simply a diversions of approach. 12 Q. You've said in your statement -- this is what I wanted 13 to see if you can expand on it -- that the Fingerprint 14 Officers you saw, Mr Macpherson and Mr Stewart, appeared 15 confident of their position. 16 A. Yes. 17 Q. How did that come across to you? 18 A. Well, they had identified the 16 points. My 19 understanding was that the four SCRO people (bearing in 20 mind under the procedures four people would have looked 21 at it) had in fact identified amongst the four of them 22 more than 16 points; in other words, it wasn't the same 23 16 points necessarily, although they had agreed on 24 examples for the preparation of the court materials and 25 that, therefore, they were very confident that the page 40 1 bottom half section, bottom third really, of the mark Y7 2 which was substantially free of pressure damage had 3 given them material on which they could make an accurate 4 identification. 5 Q. I will complete that particular part and come back to 6 something you mentioned earlier. 7 In addition to their confidence in their own 8 opinion, did they give you any information about 9 Mr Wertheim's background? 10 A. No, I don't think -- I think probably by that time we 11 knew more about Mr Wertheim background than the SCRO 12 did -- I don't think they had heard of him. 13 Q. Did you, in fact, ask your junior Mr Denis to make 14 enquiries? 15 A. We weren't sure of what his status was as an expert 16 across the Atlantic Ocean so, in fact, I should explain 17 my junior Mr Denis, in fact, was a former San Diego 18 attorney who came over here for family reasons and 19 joined the Scottish Bar and through his good offices we 20 contacted the San Diego DA's office to ask what 21 Mr Wertheim's status was as an expert and they faxed 22 through some items indicating that he was a recognised 23 expert and they told us a little bit about his 24 background and his commercial activities. 25 Q. Are you aware of any other enquiries being instructed page 41 1 through the Fiscals into Mr Wertheim's background? 2 A. I don't think so because, I think -- if I'd been given 3 other material I don't see why I would have made the 4 request which we did through Mark and San Diego DA who 5 he happened to have personal contact with. There may 6 have been but I don't recall and I don't think Mark and 7 I would have done that if we had had something else 8 available. 9 Q. The other point I wanted to ask you about, really to 10 pick up, was you mentioned that at least it had gone 11 through your mind of getting another opinion on the 12 Crown's side, as you say correctly, a third opinion from 13 speaking to the two officers? 14 A. Yes. 15 Q. At that point were you thinking that a third opinion 16 would, in a sense, be calling for reinforcements of 17 your position rather than cross-checking whether they 18 were correct? 19 A. That would be pretty much my line of thinking by that 20 stage and I didn't consider that necessary because I had 21 the SCRO people saying firmly, "We think we are right 22 about this", and I had what I thought was Mr Kerr 23 saying, "I saw her". So I didn't think that was 24 necessary. 25 Q. I am sorry, it's just simply when one can speak in the page 42 1 lay terms of -- 2 A. I am sorry. I couldn't hear what you were saying there. 3 Could you repeat that? 4 Q. I'll try and speak into the microphone. 5 In the lay terms, if one refers to the more 6 colloquial expression of one is asking for a second 7 opinion, I appreciate it's third or more in this case, 8 one might ask for a second opinion to cross check the 9 advice if there is a doubt about the advice to 10 cross-check or, in a court setting, one might ask -- 11 one's aware there is an opposing expert, one might call 12 for reinforcements so that one is trying to outnumber 13 the other side. 14 A. Yes. 15 Q. Do I understand it that in this case what you were 16 looking at was literally reinforcement. You were not 17 seeking to instruct an independent cross-check of the 18 SCRO position? 19 A. Rightly or wrongly, I was not thinking in cross-check 20 terms I was thinking in reinforcement terms and it 21 seemed to me unnecessary and it would not justify an 22 adjournment just for that. 23 Q. What I want to now turn to is a matter -- again you will 24 have to be patient with me because I don't have the 25 original file. You have been asked when you were giving page 43 1 your statement to look at some previous correspondence 2 that bears upon this question of the Crown instructing 3 other experts. 4 A. Yes. 5 Q. Before we look at the correspondence, do you now have 6 yourself any personal recollection of the Crown having 7 given consideration to a separate expert on this matter? 8 A. No. I was asked about that when the statement taker 9 came and I think I was shown an internal Crown memo 10 from, I think, Gillian Climie but I have no recollection 11 of that and it would be something that in the pretrial 12 phase I might have been aware of it, in the sense of 13 having glanced through the file and seen it, but it's 14 not something I have any particular recollection of or 15 attached any particular significance to at the time, as 16 far as I recall. 17 Q. If we take very broadly there's a period of a year from 18 the initiation of proceedings to the trial and during 19 the course of that year there is some debate about this 20 matter, would you -- and you have covered this in your 21 statement -- have expected that debate to have been 22 closed down before the papers are passed to you as the 23 Trial Depute? 24 A. Pretty much although I have to say in fairness if I 25 thought that that decision was wrong or there was a page 44 1 reason to revisit it I would have had the authority -- 2 if I'd asked for another opinion I would have got one 3 and that was that, I would have gone and got one. But 4 the debate in terms of re-evaluating SCRO at very much 5 the pretrial phase was not a debate in which I was 6 involved and the only way in which I would have reopened 7 it would have been in view of possible reconsideration 8 once I'd seen the defence materials. 9 Q. Before looking at the specific correspondence if I can 10 just cover with you the structures within Crown Office 11 and the decision-making authority. 12 Within Crown Office there would be Crown Counsel, 13 Advocates Depute? 14 A. Yes. 15 Q. At that time advocates but now there are some solicitor 16 advocates as well? 17 A. I don't think there were any in 1999. 18 Q. So advocates who are Crown Counsel, Advocate Deputes? 19 A. Yes. Oh no, Frank Mulholland was the first, Frank 20 Mulholland was there by that time in his first tour of 21 duty. He was the only solicitor advocate who was there 22 at the time. 23 Q. Also within Crown Office there would be a number of 24 Procurator Fiscals? 25 A. Yes. page 45 1 Q. Looking at the decision-making if an important decision 2 required to be taken in relation to the conduct of 3 a trial, at what level would you expect that decision to 4 be taken, by an Advocate Depute or by a Fiscal? 5 A. That's very difficult to answer because the answer to 6 that is it would vary. It would depend on the nature of 7 the trial and the nature of the decision. 8 In a murder case a very significant decision, for 9 example, to reduce a murder indictment to a lesser 10 charge, or a rape indictment, would have to be taken by 11 a law officer. So if Crown counsel looked at the papers 12 and thought that was something had to be -- sorry, let 13 me start again. If someone had been placed on petition 14 for murder or rape and when the papers arrived Crown 15 Counsel thought it should have been marked down for 16 culpable homicide or indecent assault or attempted rape 17 or something, that would have to be referred to an 18 officer. That was the standing instruction. In 19 relation to other things, it varied. 20 My on practice was where I considered that something 21 might have some sort of public policy implication for 22 the Crown would be to refer it to an officer. In a case 23 of this sort where the indictment of a police officer 24 for a charge like perjury was concerned, I would have 25 expect the initial decisions at least to have been taken page 46 1 in consultation with perhaps the Home Depute because of 2 the nature of -- it's not every day you indict a 3 policeman for perjury. 4 Q. If the Crown more specifically because we will look at 5 the correspondence -- if an Advocate Depute has 6 instructed a report covering let's say three points, an 7 Advocate Depute has done it, and that instruction is 8 supported by the Solicitor General and then a report 9 comes in that covers only one of those three points and 10 the Fiscals who are dealing with that report are 11 debating whether that report should be left as it stands 12 or the extra two questions pursued, would you expect, as 13 a matter of the normal practice within the Crown Office 14 at that time, for the Fiscals to have the authority to 15 deal with the matter themselves and just settle for the 16 incomplete report or would you expect them, based on the 17 practice at that time, to go to an Advocate Depute to 18 seek authority? 19 A. Can I just check the premise there. Was this report 20 commissioned by an Advocate Depute? Did you say the 21 report was commissioned by an Advocate Depute? 22 Q. I will park that question and I will show you the actual 23 material we have. What I'm asking you -- because I 24 don't have a piece of paper that concludes this. I 25 simply have a discussion going backwards and forwards page 47 1 and what I'm asking you is from your knowledge of the 2 practice at that time whether you would have expected a 3 piece of paper and, if so, whose initials? 4 A. If I could look at it this way: if I had commissioned or 5 I had asked someone to look into something and got a 6 report that didn't answer all the questions that had 7 been asked I would have expect one of two things to 8 happen. One would be for that incomplete report to come 9 to me, very likely with a note saying he doesn't seem to 10 have addressed all the things here but certainly it 11 would have been put back in front of me. 12 The other possibility is that if it clearly did not 13 address the three issues which it had been designed to 14 address, I would not have been perhaps surprised if the 15 Fiscal had referred it back to the expert and said, 16 "Look, we asked you this, this and this and you have 17 only answered this and then sent me everything", but I 18 would have expected to see it, at the end of the day, 19 either as it stood or as amended because they had gone 20 back to the expert before coming to me saying they 21 haven't answered parts of this. 22 Is that what you were driving at? Does that answer 23 the question? 24 Q. What I'm driving at is this: if we can see that Crown 25 Counsel had asked for reports covering a number of page 48 1 points, three points let's say, the Fiscals pick up that 2 instruction and instruct a report on three points, the 3 report when it comes back deals with only one of those 4 three, the Fiscals are aware that there's some questions 5 concerning the appropriateness of that report and what 6 in fact came to you as the Trial Depute was the report 7 as originally submitted with only one of the three 8 questions addressed, would you expect, based on ordinary 9 procedure at that time, that the Fiscals would have 10 spoken to some Crown Counsel? 11 A. I would actually expect them to have endeavoured to 12 bring it back to the attention of the original counsel 13 who issued the instruction, failing which to the Duty 14 Advocate Depute. 15 Q. In the way of these things, if that had happened, would 16 you expect there to be, on the Crown Office file, a slip 17 of paper that would record that some conversation had 18 taken place and the matter being signed off? 19 A. Yes. Now it's possible -- if this was an internal 20 office communication I would expect there to be actually 21 a little paper slip saying, "Here's the report. He 22 doesn't seem to have been answered points two and 23 three", and Crown Counsel's reply written on the bottom 24 of the same slip. 25 If it had been referred to the original Counsel who page 49 1 may have been on circuit it's possible and it did 2 sometimes happen that the Fiscal, to save time, would 3 have phoned up the counsel concerned and said, "This has 4 come in. It does this but not this and this. What do 5 you want me to do", and I would expect there to be, not 6 necessarily -- there probably would have been a record 7 of the conversation but at least a record of what then 8 was done in furtherance of whatever instruction had been 9 issued. 10 Q. What I'll do is just take a few minutes before we break 11 to show you documents such as I have available to me and 12 we'll go through them relatively quickly without asking 13 you specific questions. 14 If I begin with a document CO3573, please. This is 15 a sheet headed, "Problems, observations, comments", with 16 various strikings out. 17 Would you have seen this type of sheet before? 18 A. I think it was broadly referred to by the marking 19 Depute, the marking Depute Fiscals, as a shopping list. 20 There was always a list of problems to be ironed out 21 prior to the completion of the precognition for Crown 22 Counsel. 23 Q. In this particular case if I could draw your attention 24 to paragraphs 3 and 4, at paragraph 3: 25 "SCRO are independent and have compared the page 50 1 fingerprint form and impression Y7 found at the house of 2 Marion Ross. Crown Counsel may wish to consider whether 3 or not an expert previously unconnected with the case 4 should make a further comparison." 5 A. Yes. 6 Q. It would seem that this was written by a Fiscal, as it 7 was by Mrs Greaves. She is thinking in the appropriate 8 terms Crown Counsel will require to consider this 9 matter. 10 A. Yes. 11 Q. "... may wish to consider whether or not an 12 expert previously unconnected with the case should make 13 a further comparison." 14 A. Yes. 15 Q. Then point 4: 16 "Chief Inspector Hogg has produced articles relating 17 to transplanted and fake prints. He does not consider 18 himself an expert in this field and Crown Counsel are 19 asked whether such an expert should be instructed." 20 The name it says Dr, it is in fact Mr, Terry Kent of 21 the Home Office at Sandwich has been suggested but you 22 did, in fact, ultimately meet Mr Kent and we'll deal 23 with that later. 24 A. Yes. 25 Q. There is the Procurator Fiscal thinking, it would seem, page 51 1 of two matters: a comparison of Y7 and then an expert 2 report in relation to the planting of fake prints. 3 A. Yes. 4 Q. If I move that on into the analysis which we have 5 already seen, CO2561. 6 In this case if we could go, please, to page 4, this 7 is the original manuscript page 37, which is a number we 8 will pick up later. It is the middle paragraph you will 9 see that two points already mentioned previously have 10 been combined in the one paragraph. Do see that? 11 A. Yes. 12 Q. I will just give everyone a chance to read it without me 13 taking time to read it all. When you have finished 14 reading it just say. (Pause) 15 A. Yes, I've read it thank you. 16 Q. That then moves on into CO3936, very helpfully extremely 17 illegible spider scrawl addressed to Ms Climie. I 18 understand this to be been written by Norman MacFadyen 19 then Deputy Crown Agent. I am not expecting you to be 20 able to confirm that or not. 21 He begins at the foot of the page to talk about 22 planting of fingerprints. Do you see that? 23 A. Yes. I'm sorry, I can't read the third one. It says 24 "It is [something] that fingerprints would have been 25 planted." page 52 1 Q. "It is incomprehensible", perhaps? 2 A. Thank you. 3 Q. That's just a perhaps. 4 If we look on it's the next part. He then goes on 5 to write: 6 ": 7 "But given the observations on Cardwell's 8 plausibility it may indeed make sense to involve an 9 independent expert, both on the question of 10 transfer/planting and on the general basis for 11 concluding that fingerprint interpretation is 12 100 per cent reliable." 13 We take it, again I can't read the initials myself 14 but I have reason to believe it the Deputy Crown Agent. 15 He has in mind two issues, first of all, planting and, 16 secondly, to get evidence to show fingerprints are 17 indeed 100 per cent reliable. 18 Not just given his identity, that particular 19 individual, but the Deputy Crown Agent, the office of 20 Deputy Crown Agent, would you expect everyone in the 21 hierarchy to take such a matter seriously? 22 A. One would have thought so. 23 Q. Then if we move on to the next document, which is 24 CO3935, mercifully a more legible document, we 25 understand to have been written by Ms Climie, one of the page 53 1 Fiscals, addressed to the Duty AD (that would be the 2 Advocate Depute on duty in the office) and you will see 3 my reason for believing the previous document is the 4 Deputy Crown Agent. It says: 5 "Please see DCA's attached note." 6 If we then proceed to page 2 of that note, Ms Climie 7 writes in the second line: 8 "I recommend that further fingerprint evidence be 9 pursued." 10 She refers to page 37 of the precognition, which is 11 the document I have shown you. 12 "The Home Office expert should be asked to give 13 expert evidence", and she says: 14 "(a) the possibility of transfer/planting of the 15 print; 16 "(b) the general basis for concluding that 17 fingerprint identification is 100 per cent reliable." 18 She says: 19 "I understand, although I do not know the detail, 20 that the English standard for matching prints is more 21 stringent than that used in Scotland, although even in 22 Scotland the number of points of comparison required 23 before a match is declared is higher than the number 24 required in some other jurisdictions. It might be an 25 idea to pursue whether Y7 can be matched to Shirley page 54 1 Cardwell on the English standard. (Presumably the Home 2 Office expert could deal with this.)" 3 Do you see that? 4 A. Yes. 5 Q. So that would seem, in fact, if one teases it out, to be 6 three points: planting, 100 per cent reliability and an 7 English expert to reconsider Y7. 8 A. Yes. 9 Q. Do you see that? 10 A. Yes. 11 Q. The final one, which will be an appropriate to break, is 12 if I then look at the document CO3934, again, a slip of 13 paper with, at the foot, initials, "JCP", now at least 14 my understanding this is might have been Jed 15 Patterson(?)? 16 A. Right. 17 Q. Writing to JYC (that's Jillian Climie) and the DCA 18 saying: 19 "Please indict High Court." 20 That would be simply the instruction to indict the 21 case -- 22 A. Yes. 23 Q. -- on perjury. 24 Then Miss Patterson, who was an Advocate Depute, 25 writes that she, "... in the conventional way CC ...", page 55 1 Crown Counsel? 2 A. Yes. 3 Q. "... considers that independent experts should be 4 instructed re the fingerprint comparison under the 5 question of planting/reliability of fingerprint 6 identification." 7 So she seems to have picked up and endorsed 8 Ms Climie's suggestions. 9 A. Yes. 10 Q. "If English requirement is more stringent, it would be 11 helpful if the expert making yet another comparison 12 could do so to the English requirements." 13 It goes on to another matter. 14 A. Yes. 15 Q. Just stopping there for a moment, understanding the way 16 things operate, what status would be attached to that 17 document as an instruction from Crown Counsel? 18 A. That's a direct instruction to the High Court Unit from 19 Crown Counsel that one would expect to be implemented 20 exactly as it stood. 21 Q. We know, at least from all we've seen, that you were 22 never presented with an English expert's opinion on a 23 comparison of Y7? 24 A. No. I think Terry Kent gave his views on the subject of 25 planting but that was it and he also gave me some page 56 1 background information on mis-identifications in other 2 jurisdictions. 3 Q. I will come to that. But just sitting there and looking 4 at matters with that in front of you -- 5 A. Yes. 6 Q. -- we know that what is being referred to there was not 7 actually, ultimately, supplied to you. 8 From your knowledge of the case, would you expect to 9 find some explanation as to why that information was not 10 supplied to you? 11 A. If one of these things for some reason could not be done 12 one would expect a note back from someone in the High 13 Court Unit saying, "We can't identify an English 14 expert", or whatever. If it's not to be done there 15 should be some further internal memos of this sort 16 explaining why it's not been done or what the problem 17 is. 18 Q. This is the point of my long question: I don't wish to 19 be unfair to the Fiscals but based on the understanding 20 and practice at the time, given what you see in front of 21 you just now, would you expect if that matter is dropped 22 that it would be raised with an Advocate Depute rather 23 than simply dropped by the Fiscals? 24 A. Dropped or amended. It should have been raised with an 25 Advocate Depute, yes -- absolutely. page 57 1 Q. What we would be looking for would be a piece of paper, 2 something similar to that, to the Advocate Depute's 3 instructions? 4 A. I would expect some sort of query from the High Court 5 Unit to be match with a CCI, Crown Counsel's instruction 6 slip. 7 Q. Sir, if you will just be patient with me, one more 8 document. 9 A. My only slight concern about this is, I think, and don't 10 mean to be critical because people have different views, 11 I might have been inclined if I was carrying this 12 exercise out to do that before marking the indict High 13 Court. 14 Q. I appreciate because, in fact, we will look -- in fact, 15 if I indicate to you that what happened was that 16 Ms Climie did indeed take exactly that view -- 17 A. I'm sorry? 18 Q. Ms Climie, the Fiscal, did indeed take exactly that 19 view. She thought that this should be done before Ms 20 McKie was placed on petition. 21 A. Yes. 22 Q. But if I move on and skip over the document that raises 23 that point and move on to CO3931. 24 A. Yes. 25 Q. Do you recognise that? page 58 1 A. It's Colin Boyd's writing. 2 Q. So this is now the Solicitor General? 3 A. The Solicitor General at the time, yes. 4 Q. If I tell you what has happened in the intermediate 5 period is Ms Climie has done exactly as you say. She 6 has questioned whether it's appropriate to indict before 7 this is done. 8 A. Yes. 9 Q. Because she is, in effect, questioning Crown Counsel's 10 instruction she has appropriately reported it through 11 the Depute Crown Agent to the Law Officer. 12 This then is what emerges from the Law Officer. 13 He's got problems simply about placing Ms Cardwell on 14 petition because the papers are needed for the Asbury 15 appeal but he thinks that they should nonetheless get 16 ahead with that. Then he says: 17 "Clearly we need a further independent expert but 18 that need not hold up the petition." 19 A. Yes. 20 Q. So it would seem, just reading that, that the Solicitor 21 General has endorsed what we see there; is that fair? 22 A. Yes, although his view seems to be different from mine, 23 in that he thinks that the officer should be placed on 24 petition before the independent report's available but 25 that's perhaps just a different view. page 59 1 THE CHAIRMAN: The petition would be the same as indict High 2 Court, won't it? 3 A. No, sir. If I could perhaps explain that, the 4 circumstances are such, if somebody, for example, is 5 caught red-handed in the course of a severe assault or 6 something of that sort and is detained in custody, he 7 will appear in court on a petition. 8 In a separate trial -- type of case, for example, 9 perjury or drunk driving is the obvious example where 10 certain steps have to be carried out before any decision 11 to prosecute can take place, the person would, in due 12 course, be issued with what's called a petition warrant. 13 That would initiate the proceedings prior to the service 14 of indictment. A petition would be served, as was the 15 case here with Ms McKie, a petition would be served 16 setting out the charge in its original form but the 17 indictment which would arrive -- that was to give notice 18 of the prosecution. The indictment in due course might 19 not be in the same form as the charge in the petition. 20 THE CHAIRMAN: And would come later? 21 A. Yes, much later. It's the initiating step in a solemn 22 matter in Scotland. It's the placing of the person on 23 petition. As I say, most commonly when they appear in 24 custody but in a non-custody case it would simply be 25 serve in due course by police officers on the accused. page 60 1 THE CHAIRMAN: Thank you very much. 2 Every time, I think I understand the procedure I 3 discover I haven't quite got it. 4 MR MOYNIHAN: I think, sir, perhaps if I give evidence and 5 Sheriff Murphy will correct me if I am wrong it may be 6 the petition which has initiated the proceedings, when 7 the further investigations are carried out the decision 8 is taken not to prosecute so there may in fact not be an 9 indictment so that the petition opens up the possibility 10 of proceedings but it's the indictment which in fact 11 triggers the trial. 12 A. That's exactly right, yes. 13 THE CHAIRMAN: Would this be a convenient moment? 14 MR MOYNIHAN: Yes, sir, it would. 15 THE CHAIRMAN: Shall we take slightly longer and give the 16 stenographer a break. Shall we sit again -- I think we 17 will make it 12.00. 18 (11.37 am) 19 (A short break) 20 (12.00 pm) 21 MR MOYNIHAN: I think I recognise that in covering the three 22 points that the Fiscals had been discussing and Crown 23 Counsel had been discussing there's one bit of context I 24 have forgotten to give you. 25 We began with the early working sheet that raised page 61 1 two points: planting and a possible re-comparison of Y7. 2 None of that indicates why someone would be interested 3 in the 100 per cent reliability of Y7. 4 If I pick that up and show you perhaps context for 5 that, if we could look again at please CO2561 and page 4 6 of that document and back to the analysis in the 7 precognition and I had read to you or asked you to read 8 over the middle paragraph where the two points were 9 picked up from the previous working paper. It's then 10 the next paragraph, the beginning of the next paragraph. 11 You will see: 12 "The precognoscer is aware that the police are 13 extremely concerned that should the case against Shirley 14 Cardwell proceed to a trial that a jury may not fully 15 understand the complexities of the case and the 16 infallible nature of fingerprint evidence. They are 17 concerned that Shirley Cardwell will present well in 18 court and the jury will feel sympathetic towards her." 19 You may remember the note I showed you -- perhaps if 20 I bring it up again -- I'm looking at CO3936. 21 This is the note that I'm attributing to the Deputy 22 Crown Agent, Mr MacFadyen? 23 A. Yes. 24 Q. If I take you again to page 2 of that, the Deputy Crown 25 Agent is writing: page 62 1 "... but given the observations on Cardwell's 2 plausibility it may indeed make sense to involve an 3 independent expert both on the question of 4 transfer/planting and on the general basis for 5 concluding that fingerprint identification is 6 100 per cent reliable." 7 It may be that that actually best correlates with 8 that second paragraph that I showed you. 9 A. Yes. 10 Q. If I am correct in my understanding of this, in asking 11 for evidence relating to the 100 per cent reliability, 12 it would seem that the people on the Fiscal side are not 13 doubting the 100 per cent reliability. They are in fact 14 saying, "We may need to lead evidence in relation to 15 that matter", would that fit with your reading of those 16 documents as well? 17 A. It does. I mean, I have a problem in my own mind 18 leading what is supposed to be expert evidence that 19 anything is 100 per cent infallible -- but that's a 20 separate issue -- but that appears to be what the 21 documents are suggesting. 22 Q. I am very interested in your comment but I asked you 23 earlier on about your own experience and attitude 24 towards fingerprint evidence. 25 Can you explain your doubt about leading expert page 63 1 evidence that anything is 100 per cent infallible? 2 A. To my mind, it's not the proper function of expert 3 evidence. The proper function of expert evidence is to 4 look at something and give an opinion on it. 5 The question of deciding if that's correct or not is 6 the responsibility of the fact-finder which, in this 7 case, would be the jury and it seems to me inappropriate 8 to seek to lead evidence that something is 100 per cent 9 reliable. One can only lead evidence that it has never 10 been disproved before. I would hesitate with that 11 simply because, as we all know, bits of evidence 12 frequently blow up in your face in the middle of cases 13 when think it's at the centre of something, just from 14 experience. It goes against the grain to suggest 15 infallibility in the context of evidence. 16 Q. Yet that would seem to be what is -- 17 A. That seems to be the way of thinking here. I accept 18 that's what the documents say and it's very easy -- 19 hindsight is always 20/20 but after what happened in the 20 case but as a general proposition I would always have 21 resisted that and I would have vigorously have resisted 22 any attempt to do something to do like that, to get 23 opinion to that extent from a witness. If I was 24 appearing for the defence and the Crown sought to do 25 something like that I would have vigorously opposed page 64 1 that. 2 Q. That sort of theme may come back again as we're looking 3 through this correspondence? 4 A. If you seek to do something like that it will come back 5 to bite you. 6 Q. If I then take you to the next letter -- and I have 7 skipped over some items that we will come back to 8 later -- we have looked at the Solicitor General and 9 then immediately after that CO3928, please. Perhaps we 10 could put the two pages up side-by-side as there are two 11 pages to this document. 12 If I tell you this is the letter that goes from 13 Miss Climie, the Fiscal in the Crown Office, to her 14 opposite number, Mrs Denise Greaves, in fact the Glasgow 15 Office -- that was the reason for saying to you the 16 Glasgow office was involved -- you will see that what 17 Ms Climie does -- and would this be the way it works -- 18 Crown Counsel having instructed certain things, it's 19 then the Fiscal who communicates that instruction to 20 someone to action? 21 A. Yes, on the ground elsewhere, yes. 22 Q. We will see now that Miss Climie is picking up three 23 matters, very neatly numbered 1, 2, 3? 24 A. It looks to me like 2 and 3 are -- well, 1 and 3 25 interlinked. Though both seem to relate to planting. page 65 1 Q. One is the general question of the transfer/planting. 2 Number 2 is the general basis for concluding that 3 fingerprint identification is 100 per cent reliable. 4 Do we see that that's picking up what the Deputy 5 Crown Agent had said? Are you reading those two 6 together? 7 A. No, no. 3, whether or not examination of Y7 has 8 anything to suggest -- that seems to relate to planting 9 as well. So 1 and 3 are planting and 2 is a separate 10 issue. 11 Q. Then if I take you across, and this is the reason for -- 12 you will see the last paragraph on the first page: 13 "The English expert is to be asked" -- 14 Immediately below number 3 you will see that 15 Miss Climie writing: 16 "I understand from discussion with Mrs Greaves that 17 the English practice for identifying points of 18 similarity is more stringent [again repeating what we 19 have seen in the earlier manuscript documents] than the 20 Scottish practice. If this is indeed the case then the 21 English expert should be asked to look at Y7 and confirm 22 that, on the basis of the English practice, the print 23 can be identified as being that of Shirley Cardwell." 24 So that perhaps is a separate matter. 25 A. Yes. page 66 1 Q. Then it says the English expert is to be precognosced in 2 detail about that and at the top of page 2: 3 "On arrest, Detective Constable Cardwell should be 4 fingerprinted. The comparison between her prints and Y7 5 by the English expert should be on the basis of the 6 prints taken from [her] on arrest. In addition, you 7 should instruct the Scottish fingerprint experts to 8 carry out a further comparison of Y7 against the prints 9 taken from DC Cardwell on arrest. The additional 10 fingerprint evidence on this basis should be 11 incorporated into the precognition." 12 Would you recognise that as reasonably explicit 13 instructions emanating from Crown Office on the matters 14 covered in the manuscript documents? 15 A. Yes, it seems pretty clear. 16 Q. In fact, when we come to the end, were you presented 17 with material of that sort, in particular re-examination 18 of Y7 by the English expert? 19 A. I'm sorry? 20 Q. Were you presented with that material, a re-examination 21 by an English expert? 22 A. No, I don't think so. I don't recall that. 23 Q. You may just have to move your microphone -- just move 24 the microphone -- 25 A. I don't recall ever seeing anything of that sort. page 67 1 Q. Please, I will put something to you for comment. Please 2 treat it as a matter for comment. 3 I asked you earlier on about the fact that if 4 considering an expert one might actually be considering 5 one of two possibilities: calling a second person, a 6 reinforcement of an existing position; or, 7 alternatively, considering instructing a second expert 8 as a cross-check. 9 A. Yes. 10 Q. You very helpfully told us that by the time you were 11 dealing with matters you were contemplating a second 12 expert as reinforcement? 13 A. Yes. 14 Q. Reading this letter -- 15 A. If I may interrupt you at that point, with respect, with 16 the position of course I don't know what the other 17 expert was going to say and so it may not have come up 18 to the mark as a cross-check, in which case one would 19 have to disclose to the defence what had happened but 20 those were the lines on what I was thinking, albeit you 21 never know what the answer is going to be. 22 Q. The reason for pausing here in having looked at the 23 material so far, looking at the material so far, would 24 you interpret -- and this is what's difficult, we're 25 trying to interpret what's in the mind of the people who page 68 1 are writing these documents -- would you interpret them 2 as simply considering the need for reinforcement or, 3 because it's discussing the possibility that English 4 standards may be different, that they are using or 5 contemplating the possibility of a cross-check? 6 A. That's very difficult for me to answer because I see 7 that the opening line is that the instruction is to 8 place the panel on petition. Now, if it was a 9 cross-check, I might expect that to precede the placing 10 of the accused on petition. I cannot remember, but I'm 11 not convinced -- perhaps you could help me with this -- 12 I'm not convinced that the English standard was 13 significantly different. Am I wrong about that? 14 Q. I think that's one of the questions we will come to in a 15 little bit. But, please, if we just ask you, because "I 16 don't know" is the answer to your question of me, if you 17 can explain to his Lordship what your own position is in 18 relation to that, did you have any expectation of the 19 English standard being different? 20 A. This is a matter of which I was briefed upon before the 21 trial. The difficulty is I can't remember the answer. 22 I was certainly made aware that in other 23 English-speaking jurisdictions the standard was 24 significantly less than the 16-point scale. 25 I was also given some broad summary of what the page 69 1 position was elsewhere in Western Europe and, again, I 2 think most of them did not come as far as the 16-point 3 standard. I simply can't remember, but I thought the 4 English standard was roughly the same as ours. 5 But the difficulty is this happened at exactly the 6 point when there was an active discussion at the Home 7 Office and in Scotland on moving away to what was called 8 a non-numeric standard, which raises a whole series of 9 other issues which was somewhat debated at trial. 10 My recollection was the 16-point standard was one of 11 the highest in the world. 12 Q. If I can now put back in place one of the intermediate 13 steps I have skipped over, as you've said, one might 14 look at the question of the English standard simply on a 15 numerical basis; as you say, 16 points which was perhaps 16 the highest in the world. Other jurisdictions may have 17 had 12 or indeed lower. 18 A. Yes. 19 Q. If I show you CO3933, this is the document which I had 20 skipped over from Ms Climie. This is the one where 21 Crown Counsel having instructed indictment, she in 22 effect queried that. So she's writing to the Deputy 23 Crown Agent so that she says: 24 "I apologise for the time I have taken over this, 25 but I wanted to be read as much of the precognition as page 70 1 possible. Please see Crown Counsel's instruction of 2 15th January 1998. Obviously, Cardwell has not appeared 3 on a petition yet and that would seem the appropriate 4 first step." 5 So she is saying not to proceed straight to 6 indictment, just proceed to petition. Then she's taking 7 up the very point you have just been making: 8 "Before placing her on petition, I am of the view 9 that the further fingerprint evidence angle should be 10 pursued -- this may take some time." 11 She then says, in effect for personal reasons 12 related to what Ms Cardwell was doing at the time, there 13 didn't seem to be any urgency. 14 So that would fit with your own, just exactly what 15 you have just said? 16 A. Perhaps different people have different approaches but 17 that would be my view of the matter, yes. 18 Q. If we go on to the second page of this -- so, first of 19 all, it fits in with what you have said: if there were 20 further significant enquiries to be carried out, you 21 would expect those to precede her being placed on 22 petition, not to follow? 23 A. You were specifically asking me as to whether this was 24 effectively evaluation or looking for support and I 25 think, insofar as I can answer that, because, you know, page 71 1 it wasn't something that was in my mind at the time, I 2 would have expected one to exhaust the various lines of 3 enquiry first if it was looking for support. 4 Q. I am grateful to you because again -- and the Fiscals 5 will give evidence in due course -- it is a question of 6 how the material reads and I'm very grateful for your 7 insights into this. 8 The reason for looking at this document was in fact 9 to pick up the question of the understanding of the 10 difference in practice because, if you look to the 11 second page, which I've just brought up, and I give you 12 a chance to read the second paragraph beginning with the 13 word "Re", you will see -- 14 A. Beginning with the word ... I'm sorry? 15 Q. If you look at the second paragraph beginning with the 16 word "re" -- R-E -- you will see what the point was that 17 was understood. 18 In fact, can we put the second and third pages 19 together. If I understand it correctly, what Ms Climie 20 is writing is that a counting details or characteristics 21 towards the total of 16, Scottish practice might regard 22 something called a lake as two points of the 16; whereas 23 perhaps English practice counted it as only one. 24 Is that anything of which you were aware? 25 A. I was thinking in terms of the 16 points. This appears page 72 1 to imply that they both have a 16-point standard, which 2 I think was largely a historical accident as I 3 understand it. I mean, one did look at this at the 4 time, although my memory is a little vague. But that 5 would appear that there is a different interpretation of 6 certain characteristics but it does seem to suggest they 7 are both on the 16-point standard. 8 Q. Yes, and that was the point I wanted to clarify. Both 9 jurisdictions were on the 16-point standard and you had 10 asked me a question earlier on -- and I confess I do not 11 know the answer -- whether the interpretation of that 12 standard differed north and south of the border. But at 13 least here is the Fiscal thinking that it might differ. 14 If I run that forward again so that we are fully 15 informed -- and, as you say, this is with 20/20 16 hindsight -- run that point forward, if I take you 17 firstly to a document SG0375, this is perhaps not a 18 document you have had a chance to study. This is the 19 report by Her Majesty's Inspectorate of Constabulary for 20 Scotland after the trial. It's one of the first 21 official reports in relation to the matter. 22 If I turn to PDF page 61, please, the 23 paragraph 5.11.2 at the foot of the page, the last 24 paragraph you will see: 25 "HMIC [so Her Majesty's Inspectorate of page 73 1 Constabulary] noted during this inspection that 2 different experts throughout the world described similar 3 characteristics in different ways, for example, a short 4 ridge may be described as two ridge endings (therefore 5 two points) or an island (therefore only one point). 6 No-one could state with any certainty how long an island 7 should be before it's classed as two points. This 8 difference in terminology is more than semantics if one 9 considers that it could be the difference between making 10 an identification and not doing so. This variation in 11 consistent terminology and definition is not conducive 12 to fingerprint credibility ..." et cetera. 13 So there is the official report saying not -- and I 14 can't discriminate between Scotland and England but at 15 least saying on a worldwide basis there is indeed a 16 question about how one counts the points? 17 A. It appears to suggest there's no accepted standard on 18 certain aspects of it. 19 Q. If I complete the jigsaw -- and forgive me, I'll not ask 20 if you remember this but I will put up on the screen 21 part of Mr Findlay's cross-examination of Mr Stewart. 22 Look at SG0526 and if you go to PDF page 125 and begin 23 at line 10, cross-examination by Mr Findlay of 24 Mr Stewart he begins by asking about features 10 and 11 25 or characteristics 10 and 11 on the inked. page 74 1 "Print 10 and 11 on the inked show a bifurcation -- 2 yes?" 3 To which Mr Stewart says: 4 "The ridge coming up from this side, bifurcating to 5 the right and both the ridges then continue over to the 6 right where they join again and form a bifurcation in 7 the opposite direction." 8 Mr Findlay: "Now for a start you were asked 9 yesterday a general question about things disappearing 10 into the mists of time in relation to terminology used, 11 such as loops and whorls and arches and so on, but they 12 are not in the mists of time at all. They were in fact 13 the creation of a man called Galton." 14 To which the witness said: "The basic Galton 15 details were details used for fingerprint identification 16 for many years." 17 Then Mr Findlay, if we put 173 and 174 together, 18 perhaps -- Mr Findlay: 19 "And for a start one thing Galton said you are not 20 entitled to do is to take something such as 10 and 11 21 and call that two points when in fact it is only one 22 point, namely, that you have a little island in the 23 middle and for a start you are making two points out of 24 something that is only one point." 25 To which the witness answered: "Unfortunately, sir, page 75 1 Sir Francis Galton's interpretation of the ridge 2 characteristics was altered many, many years ago and 3 most bureaux now have adopted the standard that 4 something like that is taken as two characteristics." 5 Then Mr Findlay carries on. So it would seem, if I 6 take just that passage, that the point that the Fiscal 7 had anticipated in the letter (namely, there might be 8 some question of interpretation of the 16-point 9 standard) about whether in this case an island, a short 10 feature, is counted as one, an island, or two points, 11 two ridge endings, did in fact play out in the trial. 12 A. Yes, that's right. 13 Q. So what I'm looking at -- and, again, I accept with 14 20/20 vision -- one is looking at something that the 15 Fiscals had anticipated. No criticism of them; it's 16 remarkable perception. They had anticipated. It did in 17 fact come to pass in the trial as an issue and it's 18 picked up in the later official report. 19 A. Yes. 20 Q. Again, please, you have much more experience than I have 21 in these matters: given your experience, is this 22 something of which you were unaware as a debate? 23 A. I was aware that there was going to be a debate between 24 the experts on certain characteristics (for example, 25 that there were bifurcations which were disputed between page 76 1 the American experts and SCRO). So I was aware that 2 there would be a debate on the interpretation of certain 3 features. 4 If you mean in more general terms was I was aware 5 that there was a general debate on interpretation, I 6 honestly can't remember. I don't really think so. I 7 think I was aware for the purposes of the trial that 8 there were potential differences of interpretation. 9 Q. So if I therefore come back to where we had taken the 10 correspondence, when we are talking about the nature of 11 the standard and the possibility -- no higher than that; 12 the possibility -- that the standard is more stringent 13 in England rather than Scotland, my reason for looking 14 at this material is to suggest to you that what is being 15 contemplated is not that England used some standard 16 other than 16. Both jurisdictions use 16 -- 17 A. Yes. 18 Q. -- but there might -- I put it no higher -- might have 19 been a difference in interpretation of that standard in 20 the two jurisdictions? 21 A. That seems to be exactly the point that Gillian has 22 picked up in the note that you drew to my attention 23 earlier. 24 Q. Go back then to CO3928. Her letter after, as you say, 25 the listing of three points seems maybe numerically not page 77 1 to be three separate points (maybe at best two), but 2 then following paragraph really does introduce a 3 separate matter, that there's a need for an English 4 expert. It seems that Ms Climie had this understanding 5 of English practice sourced from Mrs Greaves, the Local 6 Fiscal? 7 A. Mm-hm. 8 Q. If I move that on to a document which is HO0053 -- and, 9 again, it may help if we just put the two pages perhaps 10 of the document side-by-side -- this is the letter of 11 instruction that goes from Mrs Greaves, the Local 12 Fiscal, to Terry Kent. Again, there is a 13 misunderstanding that he's a doctor; he is in fact 14 "Mr" but that doesn't matter. It goes from Mrs Greaves 15 to Mr Kent and this is the instruction upon which he 16 prepared his report. 17 You will see that there is then set out in that 18 report in a numerical order what his report is to cover. 19 Some of it is not really matters of opinion. Point 20 number 1: 21 "An oration of your expertise relating to 22 fingerprints, an analysis of fingerprint planting and 23 manufacture." 24 So printing and manufacture is one of these 25 points the Fiscals had raised. page 78 1 (2) perhaps associated with that, the quality of the 2 fingerprint Y7. Point number (4) in the letter: 3 "Any concerns you have regarding the fingerprint 4 Y7." So perhaps again associated. Point 5: 5 "Any comment you may wish to make on the SCRO 6 16-point comparison of fingerprints and the statistical 7 basis for duplication of fingerprints." 8 It doesn't talk about 100 per cent reliability but 9 it is talking about the 16-point comparison and the 10 statistical basis. Could you see that? I take your 11 point earlier that you had reservations, personally, 12 about a witness saying something is 100 per cent 13 infallible simply as an assertion. 14 Could you see the significance of asking an expert 15 to give evidence about the statistical basis? 16 A. That is a much sounder approach, in my view. 17 Q. So you could see the relevance of that? 18 A. Yes. 19 Q. Then point number 6 is: 20 "If you are able to make any comment on the identity 21 of the fingerprint comparing with Shirley Cardwell's 22 fingerprint form, this should be included." 23 That would seem, at least to my eye, to correlate to 24 the question of asking an English expert, that's Mr Kent 25 in England, to comment on the identification of Y7. page 79 1 A. It's effectively asking his view of the identification. 2 Q. Again, please, because this is only a question of 3 interpretation of these documents so if you have any 4 reservations about this please just indicate. 5 I would suggest that this correspondence is carrying 6 forward, in effect, what I've said to you are three 7 points that have to be seen from the Crown Office 8 material, the first one is the whole question of the 9 possibility of planting. 10 A. Yes. 11 Q. Secondly, the question of 100 per cent reliability, as 12 you say, now presented on a more sound basis of the 13 statistical basis for fingerprints? 14 A. Yes. 15 Q. Then, thirdly, the very specific question of the correct 16 identification of Y7 as Ms McKie? 17 A. That's very much what it looks like. 18 Q. Then if I take you to the report which Mr Kent produced, 19 which is CO3876, this is the covering letter. 20 If I move on to page 2, do you recognise this? 21 A. I did see a report from Terence Kent but I simply don't 22 remember it's so long ago. I may well have seen this. 23 I simply don't recall. It's probable I did I would 24 imagine because I certainly was provided with the some 25 materials by him before the trial. page 80 1 Q. If I simply tell you this is the report that was in the 2 trial, if I move to the second page -- 3 A. Yes, I'm happy to accept that. 4 Q. If I move to the second page, you will see at 5 paragraph 9 a conclusion: 6 "From the above it would seem likely the fingerprint 7 was deposited after any application of aluminium 8 powder." 9 In other words, he was saying that it would seem 10 that the fingerprint Y7 came on to the doorframe after 11 the Scenes of Crime Officers had originally dusted with 12 aluminium? 13 A. That's not quite how the evidence at trial was but 14 certainly that was part of -- that supported our 15 thinking at the time. That's quite right, yes. 16 Q. Then we move that page to the side and bring up the next 17 page, page 3, and ask you to look at paragraph 33, you 18 will see he says: 19 "I am not qualified to comment on the identity of 20 the fingerprint but it is quite clear and contains a 21 number of well defined characteristics which I would 22 expect to be sufficient for an identification to be 23 made." 24 That would seem a very clear signal from him to say 25 he's not qualified to express a view on the correct page 81 1 interpretation of Y7? 2 A. He's not a comparisons expert, he's saying, in effect, 3 yes. 4 Q. So of the three points that I've suggested to you were 5 emerging from the correspondence, one, the question of 6 planting. If you take it from me that's the major theme 7 of -- 8 A. That seems to be what most of this is about and that's 9 what he was asked to speak about at the trial, yes. 10 Q. That's point one. Point three I'd said was the 11 comparison of Y7 to an English standard. He says in 12 terms he's not the man to do that. 13 A. Well, I'm sorry, that's not necessarily quite how ... as 14 I understand it, he's saying he's not qualified to 15 actually carry out a comparison exercise, yes. 16 Q. Is that the way you read it? 17 A. Yes. 18 Q. So that particular question, therefore, is unanswered by 19 Mr Kent's report. 20 A. Yes. In effect, he's not a second opinion and he's 21 saying that quite clearly. 22 Q. The intermediate point, the second point, the question 23 of the statistical basis for reliability, if I am 24 incorrect others will pick me up but I certainly have 25 not found anything in this report that deals with the page 82 1 statistical reliability of fingerprints? 2 A. I happy to accept he hadn't drawn my attention to 3 anything in that category. 4 Q. If I am wrong, someone will. 5 At this point, therefore, it would seem that 6 Mr Kent's report has dealt with only one of the three 7 points that had been addressed or identified by Crown 8 Office and, in terms, he says in paragraph 33, he's not 9 qualified to answer one of them. 10 A. Yes. 11 Q. And another of them is simply omitted. 12 A. Yes. 13 Q. Again, from your understanding, would you expect the 14 fact that some of these questions have not been 15 addressed to have been picked up? 16 A. My answer to that remains exactly the same as before. I 17 would have expect either it to be picked up by the 18 Fiscal or referred back to the original Crown Counsel to 19 say, "Look, here's what we've got. Do you want 20 something else done now?" 21 Q. If I take you to the final letter really that deals with 22 this matter for me, CO3463 and perhaps if you bring up 23 the two pages of that. 24 I will give you a chance to read that. If I perhaps 25 help you, in the second paragraph, the second sentence, page 83 1 Miss Greave says: 2 "The only part of Mr Kent's report which causes any 3 concern is page 2, paragraph 9." 4 That is the one I have drawn to your attention. 5 That's the one where he thinks that Y7 came on to the 6 door after the aluminium dusting. So that's being 7 talked about there. So perhaps if I allow you a chance 8 to read the letter. 9 A. Thank you. (Pause) 10 Yes, thank you. 11 Q. If I can assist, again it is a remarkably detailed and 12 perceptive document. It turned out to be the case that 13 when Y7 was found a number of other prints were also 14 found at the same time. 15 A. Yes. 16 Q. Some of those being the deceased's prints. 17 A. Yes. 18 Q. I think what the Fiscal is picking up is that it's 19 unlikely -- 20 A. That can't possibly have happened. 21 Q. -- that the deceased's prints were on the door first 22 after her death and, therefore, she was questioning 23 Mr Kent's, not just Mr Kent's theory but her own theory 24 of the sequence of events? 25 A. It really came to two aspects at the trial. Obviously, page 84 1 one's contention at the trial was that -- my analysis 2 was that Y7, if planted by the accused, had been planted 3 between Friday morning and I think it was Monday 4 lunchtime when Y7 was discovered by the chemical 5 procedure but the evidence at trial -- sorry, it 6 supported that contention, the fact that it appeared 7 between the between the aluminium powder dusting and the 8 chemical testing but the evidence at trial from the 9 fingerprint people themselves, the Scenes of Crime 10 Officer rather than people who analyse fingerprints, the 11 Scenes of Crimes Officers' view was it was not at all 12 uncommon for prints not to be picked up by aluminium 13 powder but to be picked up by the chemical procedure 14 doesn't mean necessarily mean they landed in between 15 and, quite clearly the proof of that was in the 16 discovery of Marion Ross' prints by the same process. 17 Q. I'm grateful to you for that explanation. So it turned 18 out that Mrs Greaves was, by the sounds of it, quite 19 correct. 20 A. She had correctly anticipated what was a matter of some 21 importance for the trial because, obviously, if what I 22 may call the Kent absolute position about that was right 23 then it would have greatly have favoured the Crown case 24 but, in actual fact, it couldn't have been right. 25 Q. If I may -- and I intend not to be controversial in page 85 1 relation to this -- it would seem from this exchange of 2 materials so far that the Fiscals dealing with this case 3 have been extremely perceptive in relation to matters of 4 minute detail; is that a fair -- 5 A. Yes, I would agree with that. 6 Q. Yet where we are now, by this date of 15th May since 7 she's copying Mr Kent's report, is that of the three 8 points he was asked, in fact he's only been addressing 9 one, the question of planting and faked prints? 10 A. Yes. 11 Q. There is other correspondence going backwards and 12 forwards between the Fiscals but at this point, so far 13 as Crown Counsel is concerned, I don't find anything 14 else and it's at this point where I would be asking you 15 in relation to Mr Kent's report, given that the 16 instructions started with Crown Counsel, were endorsed 17 by the Solicitor General, when he would have expected 18 the sufficiency of Mr Kent's report to have been taken 19 up with an Advocate Depute at least? 20 A. Yes, I would agree with that. 21 Q. And you are not aware of that having happened? 22 A. I can't answer that without the file because this would 23 be before my direct involvement and I just can't 24 remember. 25 I don't remember -- I mean, I obviously would have page 86 1 served in the office on duty during some of -- well, not 2 the -- well, yes, during some of this period. Well, 3 after September 1998. But I'm fairly certain it's 4 something one would be likely to remember because it was 5 such an unusual case. So I don't remember any personal 6 involvement but it's the sort of thing -- you would have 7 expected it to go back to Crown Counsel. 8 Q. Again, because some people may not understand how these 9 files operate. If it had gone -- we've touched this, 10 it's not a very sophisticated form of file recording. 11 It simply is examples of manuscript notes with initials. 12 A. Yes. 13 Q. I've laboured this because by the time, as I've said, 14 you have accepted from me that one interpretation of 15 this correspondence is because of the possibility of a 16 different English standard it has been contemplated in 17 Crown Office that there be a cross-check, whereas when 18 you pick up the matter very shortly before the trial you 19 are thinking in terms of an English expert or some other 20 expert as a reinforcement and you don't think that's 21 necessary because of confidence? 22 A. Yes. 23 Q. If I take you by coincidence on to the question of Terry 24 Kent -- paragraph 10 of your statement, just to remind 25 you -- you did, in fact, meet Mr Kent? page 87 1 A. Yes, I did. 2 Q. And you tell us something of your conversations with 3 him? 4 A. Mm-hm. 5 Q. I can now disclose really the more pertinent points here 6 that I wanted to ask you about. 7 A. Yes. 8 Q. There were three points in the instruction from Crown 9 Office. One is the question of planting and we will 10 take it as a tick against that. He has discussed 11 planting? 12 A. Yes. 13 Q. The third one was the question of a re-comparison of Y7 14 and he's marked a cross against that. He's not the man 15 to do that? 16 A. Yes. 17 Q. So what I wanted to discuss with you was the question of 18 the statistical basis underpinning fingerprint evidence. 19 You yourself, were you aware of the need to discuss 20 the statistical basis for fingerprinting with anyone? 21 A. I didn't give that particular attention because, in my 22 experience, I could not recall a case in Scotland, in my 23 experience, where fingerprints had been challenged. It 24 was -- while infallibility perhaps goes too far, it was 25 generally taken as a given that fingerprint analysis was page 88 1 accurate. So it wasn't a question that particularly 2 concerned me. 3 What I do recall is that, as I think I've indicated 4 in the statement, Terry Kent made me aware that there 5 had been at least one relatively recent case in England 6 where there had been a successful challenge to an 7 identification and I was always aware from Mark Denis 8 that it was something that happened on a number of 9 occasions in the United States. I was led to believe 10 had happened on a number of occasions in the 11 United States. 12 So I didn't specifically address the question by 13 looking for a statistical base but I was aware that 14 there had been difficulties with identification in other 15 jurisdictions. 16 Q. When you had a conversation with Mr Kent about this 17 matter, was it a relatively brief one or did he go into 18 any detail on these points? 19 A. He gave me a general briefing on certain matters and the 20 two specific areas I recall was planting, because that 21 is basically what we regarded him as being there to talk 22 about but, secondly, he was also involved because of his 23 Home Office connection with the consideration of moving 24 to non-numeric standard in England and Wales and he was 25 able to brief me on what that meant and where it had page 89 1 gone. And I think, rather alarmingly, one of the things 2 he told me or I learnt I think from him was one of the 3 people they had gone to for guidance was actually David 4 Grieve. 5 Q. So one of the people you were going to have to 6 cross-examine is one of the very people the Home Office 7 had consulted? 8 A. My recollection is Terry Kent had indicated to me that 9 they were unhappy with the 16-point standard because 10 they thought it was unnecessarily high, in fact. That a 11 person who was sufficiently accredited and experienced 12 should be able to identify a crime scene mark with fewer 13 than 16 points provided that there was no fundamental 14 divergence or a significant divergence between the crime 15 scene mark and the ink print of the suspect and that 16 other jurisdictions had gone on to a -- 17 Q. If I -- 18 A. Sorry. It's a helicopter. 19 Q. It's okay. My reason for interrupting is what you are 20 saying is too important to be drowned out. It doesn't 21 matter me being drowned out but your are a different 22 matter. 23 I think the moment has passed. So if I can take you 24 back to the beginning, you were telling us about 25 your conversation with Mr Kent. page 90 1 A. Yes. 2 Q. And the question of the non-numeric standard. 3 A. Yes. Let me try and explain the position overall as 4 best I recall it. Although I can't recall the minutiae 5 at this remove but my understanding was he was there to 6 give evidence, primarily, in relation to the question of 7 planting, but he was a Home Office person who had 8 responsibility for a number of things relating to 9 fingerprints. One aspect of that was that he was very 10 concerned about the outcome of the case because it could 11 lead to the confidence in fingerprint identification 12 being challenged or being questioned. 13 He had also, as I recall, been involved or had 14 knowledge of the attempt to move away from the 16-point 15 standard to a non-numeric standard in England and Wales. 16 He did take some time to try to explain that to me and 17 my recollection was along the lines as I was indicating 18 before the helicopter came along that a sufficiently 19 experienced and properly accredited expert might well be 20 able to identify a crime scene mark with fewer than 16 21 characteristics and, in some cases, considerably fewer. 22 For example, if someone had a very striking and 23 distinctive mark of some sort that was extremely unusual 24 then one might not need 16 to make a positive 25 identification, bearing in mind crime scene marks are page 91 1 often fractions of fingerprints rather than, sort of, 2 the textbook example you get when taking a print under 3 controlled conditions. 4 He indicated to me that the procedures were already 5 underway to move away from 16-point to non-numeric 6 identification in England and Wales and, as part of 7 that, the Home Office had sent some people to the 8 United States to study what had happened with a view to 9 training people who would eventually train other people 10 and lead to a sort of filtering down in their system. 11 One of the people, one of significant people they'd 12 spoken to in the United States, was David Grieve who was 13 regarded as having a very high formidable degree of 14 expertise in the question of fingerprint identification. 15 Q. There are a number of points I just wanted to pick up 16 with you in relation to that. 17 A. Yes. 18 Q. First of all, he mentioned to you a recent English case, 19 the case that I found that's recent to these events is 20 the case of MacNamee, which was December 1998, just 21 before the trial. Does that ring any bells? 22 A. Where did it happen? Was it somewhere in the West 23 Midlands, kind of, for some reason I -- 24 Q. It was the Marble Arch bombing, I think. 25 A. I'm sorry, I don't remember the details but I do page 92 1 remember there had been a successful challenge in a case 2 in England which had caused a bit of concern at this 3 end. 4 Q. Perhaps the more important point is that you were saying 5 that what Mr Kent was expressing to you was a concern 6 about the implications of the McKie trial to the general 7 confidence in fingerprint evidence? 8 A. Yes. 9 Q. Do I take it from that then that the impression that he 10 was giving to you is that he was a man who had 11 confidence in the general reliability of fingerprint 12 evidence or is that taking it too far? 13 A. I think it would be fair to say general confidence but 14 obviously there would be a concern if for the first time 15 if -- the first time in the 20th century, as I 16 understood it, there had been a successful challenge in 17 England followed by a successful challenge in Scotland 18 shortly afterwards, if that were to be the outcome of 19 the McKie, it would obviously be a concern. 20 Q. If I can show you please FI0052 and you will see this is 21 the statement that Mr Kent has provided to the Inquiry. 22 If I go to PDF page 11, paragraph 32, and give you a 23 chance just to read that. 24 A. Yes. (Pause) 25 Yes, thank you. page 93 1 Q. That's the reference to the case of McNamee one of the 2 alleged IRA bombers who was acquitted on appeal. You 3 will see my interest in it is the last sentence. 4 Mr Kent says: 5 "I was becoming at that time concerned about the 6 standards of fingerprint evidence undermining this most 7 important form of evidence." 8 Did Mr Kent, in the conversation you had or 9 conversations you had with him, express to you any 10 concern he had about the standards of fingerprint 11 evidence or fingerprint officers? 12 A. I can't remember what he said specifically but my 13 impression was that he -- no, I don't think the concern 14 was specifically about the officers, the concern was the 15 effect on the detection and presentation of criminal 16 evidence if this turned out to be not as reliable as we 17 previously thought it to be. I don't think I could put 18 it higher than that. But there certainly was a concern 19 but that was the concern, as I understood it. 20 Q. If I understand it, it's the concern of a man who 21 regards fingerprint evidence as generally reliable and 22 is worried that this case might undermine that? 23 A. Yes. 24 Q. Rather than someone who says, "I have a concern about 25 the reliability of fingerprint evidence and this is page 94 1 perhaps another example of that". 2 A. My impression was more the former, that it was generally 3 reliable but the generally held position could be 4 chipped away at and it might not turn out to be as 5 reliable as we thought it to be. 6 Q. If I take you on to paragraph 47, and give you a chance 7 to read paragraph 47. (Pause) 8 A. Yes, thank you. 9 Q. So he's referring in paragraph 47 to having carried out 10 a study and it is a memo dated 8th June 2000 so it's 11 after the trial? 12 A. Yes. 13 Q. If I could bring up the whole of that page and perhaps 14 the next page as well, you will see that in paragraph 48 15 he talks about a conclusion, one being that there were 16 virtually no instances of experts finding 15 17 characteristics, the inference was that once an expert 18 was convinced they would find 16 points? 19 A. Yes. 20 Q. So he seems to be -- if I give you a chance in fact just 21 to read these two pages. (Pause) 22 A. Yes, thank you I've read that. 23 Q. If we carry on to page 18. (Pause) 24 Could we bring up pages 18 and 19. (Pause) 25 A. Yes, thank you. page 95 1 Q. If I play devil's advocate just now, Mr Kent will give 2 evidence in due course but certainly on one reading of 3 what he's written in that section he's saying that the 4 studies he carried out led him to have some reservations 5 about the reporting of observations of fingerprint 6 officers suggesting flaws in fingerprint evidence that 7 require to be addressed. 8 A. Yes. 9 Q. I assume for the moment that, playing devil's advocate, 10 that is the correct interpretation of what he has said. 11 May I take it that in your conversation with him he did 12 not voice such a doubt? 13 A. I can't recall any such doubt being expressed. That's 14 the best I can put it. I don't remember and I don't 15 think so. My recollection was a more general concern at 16 something that had previously been regarded as a 17 significant and reliable element of evidence in criminal 18 cases was being eroded. That's my recollection or my 19 impression of his concern at the time. 20 Q. In a sense, if I go to extremes again just to play 21 devil's advocate, he could either be a proponent of 22 reliability of fingerprint evidence concerned the McKie 23 case may be undermining it or he could be, on the other 24 extreme, a critic answering that this is a technique 25 that's not 100 per cent reliable and there are flaws page 96 1 that ought to be drawn to the prosecution's attention. 2 A. Yes. 3 Q. Taking those as obviously two opposite ends of a 4 spectrum, which end did you understand him to be 5 standing at? 6 A. My impression was more of the former but, of course, we 7 knew that it wasn't 100 per cent reliable by that time 8 because we had examples from other jurisdictions of 9 successful challenges. So fingerprinting, in general, 10 could not be 100 per cent reliable. The issue was 11 whether or not ACRO thought it right in this instance. 12 Q. My reason for asking this is, in a sense, to use a legal 13 terminology to explain it, is of causation as a factor. 14 A. Yes. 15 Q. If one takes it that the question was posed, namely 16 100 per cent reliability, to Mr Kent, if one adds in his 17 statement to the Inquiry suggests that he was, in fact, 18 a man who at that time had been carrying out studies in 19 relation to this very point, one might in other 20 circumstances join the two up together and say, well, if 21 the point had been pressed with Mr Kent perhaps he would 22 have said what he said in the witness statement here. 23 The coincidence is, in fact, that you, in fact, had 24 an opportunity to discuss it with him. You didn't know 25 about this issue but you were in a conversation with him page 97 1 and would it be my correct understanding that he did not 2 volunteer to you any criticism of the reliability of 3 fingerprint evidence beyond indicating to you that the 4 case (which I understand to be MacNamee) had occurred. 5 A. I think he was also aware of challenges in the 6 United States but -- I think my source for that was 7 originally Mark Denis. But it was a given that there 8 had been successful challenges in other jurisdictions. 9 I don't recall any specific discussions about this 10 research. It may be that he did and ... but I don't 11 recall that. 12 Q. The final point on this chapter, which would be a 13 convenient point to stop for lunch, is, to pick up one 14 other point, I have been asking you generally about the 15 question of an independent expert perhaps being 16 instructed. If I can show you the statement that's been 17 given by Denise Greaves to the Inquiry -- if I find my 18 notes -- Denise Greaves' statement is FI0038. 19 This is again her witness statement and if I turn 20 please to PDF page 7, it's paragraph 12. It looks as if 21 I need pages 7 and 8. I will give you a chance, 22 Sheriff, to read paragraph 12. Before you read it, what 23 she is addressing is the very question I've posed to you 24 for much of the morning: what happened to 25 these unanswered questions. If you read then page 98 1 paragraph 12. (Pause) 2 A. Yes, thank you. I've read paragraph 12. 3 Q. We have already covered, in effect, the last paragraph 4 of that. You certainly as an individual were not asked 5 about getting a further report of the type that's being 6 discussed. 7 A. I wasn't in Crown Office even at this time. The 8 question of another report arose for me in the light of 9 the arrival of the defence evidence, the defence 10 materials, and quite clearly I had a decision to make 11 about that at that time, which I made, but the earlier 12 considerations of this were not anything with which I 13 was involved, I'm afraid. 14 Q. That's fine. 15 The final matter, just as detail: can I take it from 16 what you have said that if any assumption was being made 17 to be described as a former position, that's not an 18 assumption that you yourself were making? 19 A. Do you mean in relation here to the defence expert? 20 Q. The proposition being that Crown Office was in some way 21 comforted by the fact that in the Asbury case defence 22 experts had confirmed the identification. That was not 23 a factor that played in your mind at the time? 24 A. Not at any stage. 25 MR MOYNIHAN: One final point perhaps that would assist page 99 1 in -- perhaps, it is just as well we stop there for 2 lunch. 3 THE CHAIRMAN: Have you any estimate as to how many more 4 topics you have to cover. 5 MR MOYNIHAN: I have an estimate of having to away for 3.00 6 fro personal reasons. That is what I am aiming to be, 7 that I will be finished my examination-in-chief -- I 8 think much to some others relief around here -- by 3.00, 9 by the mid-afternoon break. 10 THE CHAIRMAN: It is ore from the witness's point of view I 11 was enquiring. 12 MR MOYNIHAN: I have already confessed to my selfish reason 13 for being concerned for me rather than the witness. 14 THE CHAIRMAN: I see, very good. We will sit again at 1.50. 15 (1.00 pm) 16 (Luncheon Adjournment) 17 (1.50 pm) 18 MR MOYNIHAN: Just to close the chapter we were talking 19 about earlier on, this question of another expert 20 opinion, if I could ask please that there be a letter 21 put up on screen, CO4063, and, again, it may be 22 necessary to put up more than one page. 23 If I can explain to others who are looking at this, 24 the question had been raised by the Inquiry team with 25 Crown Office of the question that we were just page 100 1 discussing before lunch about the conclusion of the 2 matter in relation to Mr Kent and this is the response 3 that was received. If I can ask you just to read that 4 please. (Pause) 5 A. Yes, thank you, I've read it just now. 6 Q. Thank you. 7 It is the last paragraph on the first page with 8 a reference to the Advocate Depute? 9 A. Yes, that's my involvement. 10 Q. That would be you, yourself? 11 A. Yes. 12 Q. It says that you carried out or you considered the 13 papers afresh. 14 A. Yes. 15 Q. Do you accept that? 16 A. Yes. 17 Q. It also is the case that you considered that further 18 evidence was not required. 19 A. For the reasons I mentioned earlier on this morning. 20 Can I just clarify one thing. When it says I considered 21 the papers "afresh" it's possible that some of the 22 correspondence you've referred me to today would have 23 been in the Crown Office file but when I considered it 24 afresh I have to be honest, I probably didn't read most 25 of that. I would have read the precognition because by page 101 1 that time in a sense I would assume it had been, what 2 one would think of as put to bed and ready to go. So I 3 considered the evidence available to me and took the 4 decision in the light of that. 5 As I say, this correspondence may well have been 6 available to me -- probably was -- but I wouldn't have 7 gone through all the earlier processes again. 8 Q. I don't wish to overtax your memory. The question I was 9 asking you and debating at length with you before lunch 10 (namely, whether the Crown might instruct an independent 11 cross-check), do you have any recollection that you 12 yourself considered that possibility? 13 A. When I said I would have considered seeking it in 14 support, there is an element of cross-checking that as 15 well. I'm not sure I can completely separate the two in 16 that sense. There would have been an element of that. 17 But, as I say, I had sufficient material before me to 18 proceed with the perjury trial that I was instructed to 19 proceed with and so that was the basis of the decision. 20 Q. That is fine. That closes that particular chapter for 21 my purposes. 22 That letter happened to mention Malcolm Graham. 23 A. Yes. 24 Q. I have already asked you about that, about the fall-back 25 position. page 102 1 I want to move on to another individual who you have 2 mentioned and been asked some detailed questions about 3 in your statement and that's Mr Swann. You deal with 4 Mr Swann in paragraphs 28, 33 and 35 -- 5 A. I'm sorry, what was the first number? 6 Q. 28. 7 A. Thank you. 8 Q. 33 and 35. Perhaps if I indicate to you and then give 9 you a chance to check the paragraphs as required. 10 What I'm going to go on to ask you about is your 11 knowledge of Mr Swann's involvement as an expert witness 12 for Ms McKie, not Mr Asbury for Ms McKie. 13 A. Yes. 14 Q. If I understand your statement correctly you say that 15 you did not know of Mr Swann's involvement before the 16 McKie trial started, you did know of his involvement by 17 the end of the trial? 18 A. I'm pretty sure that's right, yes. 19 Q. And where you're uncertain is at what point during the 20 course of the trial you first learned of Mr Swann? 21 A. Yes. 22 Q. With that in mind -- and I've had the benefit of 23 something being drawn to my attention that we will look 24 at -- but one of the points I was asking that underlay 25 the questions of you is that when you cross-examined page 103 1 Ms McKie, you asked her about knowledge of any other 2 expert before Mr Wertheim and she said she did not know 3 of one. 4 A. Yes. 5 Q. The question that was being asked of you is whether at 6 that time of that cross-examination you knew of the 7 involvement of Mr Swann yourself? 8 A. The answer to that I think must be no because she 9 answered the question in the negative and I didn't 10 challenge it further, as I recall. If I had had firm 11 material to contradict what she'd just said to me I 12 would have -- I'm pretty certain I would have put it to 13 her. 14 So what I think I did know, if I could 15 perhaps explain, there are two aspects of this which 16 might be or might not be of significance so perhaps if 17 you'd like me to explain. My position was that I 18 believed the defence had commissioned somebody else to 19 examine Y7 and that that person had confirmed, was 20 believed to have confirmed, the SCRO position about the 21 mark. I did not know, I think, who that person was or I 22 would have put it to her. 23 The assumption in paragraph 28 here is that it was 24 Peter Swann. I'm not 100 per cent convinced that that 25 is right because, having subsequently come across page 104 1 another piece of paper, I was given a list of people -- 2 sorry, let me start again to try and explain the 3 background to this so I'll try to make it as least 4 confusing as possible. 5 On one of the occasions when I spoke to the SCRO 6 officers, Mr Stewart and Mr Macpherson, and I think it 7 may have been the occasion when we were at court looking 8 at the defence productions or it may have been the 9 earlier occasion but I suspect certainly it 10 was discussed on the latter occasion, it was indicated 11 to me, as I recall, by them that the word on the 12 grapevine, as it were, amongst the fingerprint people 13 was that the defence had got somebody else to look at it 14 but they did not know at that stage who it was. 15 I'm pretty certain I asked them to let me know if 16 that came to light. As I've made you aware, I think, I 17 have -- I think I mentioned in passing in the statement 18 as well I found with my notes a piece of paper naming a 19 couple of people, including Peter Swann, as being 20 possibly the people that the defence had spoken to. I 21 think that that was provided to me prior to the end of 22 the trial but I'm pretty certain after I had 23 cross-examined Ms McKie because, bear in mind after that 24 we have the lengthy chapter of evidence of the two 25 American fingerprint experts and there were days, in page 105 1 fact, between her evidence and the end of the trial, as 2 I recall. 3 So I'm fairly certain if I had had that information 4 in front of me at the time of the cross-examination it 5 would have been put to her and it wasn't; so I think I 6 must have received that afterwards. 7 But a considerable time after all of this was over, 8 I received a letter from Iain Bradley asking for the 9 return of the what I think was called the Ashbaugh 10 report. I was asked about that when the statement taker 11 came and I have no recollection about that chapter at 12 all, but the letter from Mr Bradley dealing with 13 Ashbaugh report also makes reference to a person called 14 Peter Thorne who had apparently come forward and 15 indicated, although I don't know the manner in which 16 this had happened, that he had been consulted by the 17 defence as well about it. He's not one of the people 18 who was named to me before the end of the trial. 19 Q. If you can, because you mentioned this to me yesterday, 20 you have with you today that piece of paper with the 21 three names on it; is that correct? 22 A. Yes. If you bear with me I'll find it. The first two 23 are in somebody else's hand and the third has been added 24 in my own handwriting. 25 THE CHAIRMAN: Is the last one is your handwriting? Just page 106 1 could you identify for us which name is in your 2 handwriting. 3 A. Would it help if I simply read out the text. 4 THE CHAIRMAN: Yes. 5 A. The piece of paper is a lined sheet that says on it: 6 "Independent experts who looked at McKie case (1) 7 Peter Swann -- ex-super or chief super highly 8 respected", and then a telephone number is given and 9 then in a different colour of ink and possibly in a 10 different hand it says: 11 "Defence both", and there's an arrow pointing to the 12 second name which is number 2, Mike Heron, and it says: 13 "Ex-DI now thought to be working in some capacity 14 with Fiscal in Dundee." 15 Then two lines underneath there is in my hand the 16 number 3 and it says: 17 "Malcolm Johnson ex-DI Edinburgh IB may have been 18 asked as well." 19 I would interpret that as being somebody else has 20 obviously written the first two names and has handed it 21 to me and I've been told the third verbally and added it 22 on to the end. But, as I say, I can't confirm when that 23 happened other than the fact that if I had it in front 24 of me at the point when I was cross-examining her I 25 would almost certainly have used it so I presume it must page 107 1 have been later. 2 MR MOYNIHAN: If you -- 3 THE CHAIRMAN: If you display it someone might recognise 4 their handwriting. 5 MR MOYNIHAN: Sir, I think the reason for not displaying it 6 is the reference to a telephone number. 7 THE CHAIRMAN: No, no, a redacted version in due course, we 8 could do that. 9 MR MOYNIHAN: I was going to suggest if Sheriff Murphy just 10 leave that paper with us. 11 A. Yes. 12 THE CHAIRMAN: If the Sheriff leaves it behind, if he 13 wouldn't mind ... 14 MR MOYNIHAN: We could otherwise have displayed it here just 15 now. 16 What I want to do is I will take you to the 17 cross-examination of Ms McKie and then I will come back 18 to a passage that has been drawn to my attention where, 19 in fact, Mr Swann's name was mentioned by you at an 20 earlier date so I will ask you how that came about. 21 First of all, the reference to Ms McKie is SG0294 22 and it begins at PDF page 84. It is the PDF page rather 23 than the transcript page. 24 THE CHAIRMAN: I see. 25 MR MOYNIHAN: I think the passage begins at line 14. You page 108 1 were asking was she anxious, consult solicitors, and 2 then if we go to the next page, page 85, line 11: 3 "Can you tell the ladies and gentlemen how many 4 people were asked to look at the print Y7 for the 5 Defence before Mr Wertheim? She says: 6 "I have no idea." 7 "Well, was it one, was it more than one? 8 "You would need to ask my Counsel about that. 9 "Is this not a matter that you would have been 10 anxious to know about? 11 "Mr Findlay assured me he would do the job properly 12 and to trust him and that is what I did. 13 "At what stage did you first meet Mr Findlay? 14 "I can't remember the date or approximately the 15 number of months ago. 16 "Right. 17 "This matter has gone on for two years? 18 "Yes. 19 "And certainly from the point of your arrest you 20 would have instructed solicitors? 21 "Yes. 22 "Did you instruct solicitors before that? 23 "Yes. 24 "At what stage did you instruct solicitors? 25 "Within about a fortnight of my fingerprints being page 109 1 identified. 2 "Oh right, way back in 1997? 3 "Yes. 4 "And at that stage your solicitors would have 5 started to look into things? 6 "I don't now if they did at that point because it 7 wasn't really clear what was going to happen. Right. 8 "Well, at what stage do you think your solicitors 9 started to look into things? 10 "I don't know. You will need to ask my solicitors. 11 "Do you seriously not know whether the print was 12 shown to anyone before Mr Wertheim?" 13 She says: 14 "I don't know who has examined the fingerprint." 15 You asked: 16 "Do you know if anybody has?" 17 She says: 18 "I don't know who has." 19 Then you ask: 20 "Do you know if anybody has, regardless of their 21 identity?" 22 To which she says: 23 "I don't know. You would need to ask my solicitor 24 that. 25 "Well, did you not ask your solicitors? page 110 1 "Sorry? 2 "Did you not ask your solicitors how things were 3 progressing? 4 "Yes. 5 "And was there no discussion at any stage of other 6 people looking at the fingerprint? 7 "Well, there was discussion about, obviously, the 8 fingerprint people looking at the fingerprint but they 9 don't discuss with me day-to-day who, what and why. 10 "So you don't know whether or not anybody else 11 looked at the print. Is that your evidence? 12 "No, I don't know." 13 You then go on: 14 "Isn't the truth of this matter, Ms McKie, that at 15 one stage you did, in fact, go into the locus for a 16 look ..." and you move on. 17 So is that the passage, as you recollect it, in 18 cross? 19 A. That was the passage I had in mind, yes. Obviously, 20 this means before Mr Wertheim and so on looked at it, 21 yes. 22 Q. But are you indicating that had you known Mr Swann would 23 have been instructed you would specifically have put the 24 name rather than simply leaving it did she know of 25 anyone? page 111 1 A. If I'd had the material I'm pretty certain I would have 2 put it, yes, but, as I say, I can't remember when I was 3 given this piece of paper. 4 Q. If we go back to page one of that particular document, 5 PDF page 1, we see that that examination occurred on 6 11th May 1999. 7 A. Yes . 8 Q. What I want to turn to now is a transcript of 7th May, 9 so some four days earlier, SG0529. Go to page 3 of 10 that. So we are looking at the trial on Friday 11 7th May 1999, so some four days earlier. 12 A. Yes. 13 Q. Go to the next page. 14 We are going to look now at the examination of 15 Mr Macpherson, one of the Fingerprint Officers, and if 16 we go please to page 63, PDF page 63 -- if I take you 17 back to page 60, this is cross-examination by 18 Mr Findlay. 19 A. Yes. 20 Q. If I, in fact, go on to the next page, and the next 21 one ... PDF page 63 it is, Mr Findlay at the top of 22 page 61 of the original transcript: 23 "When was the last time that SCRO was challenged 24 over a fingerprint?" 25 Mr Macpherson says he doesn't believe that they've page 112 1 ever been challenged. 2 A. Yes. 3 Q. At lines 11 and 13 he mentions that independent experts 4 have looked at their work in the past. 5 A. Yes. 6 Q. "But they don't challenge it", there's no answer and 7 then there's a question about a danger in that situation 8 of intellectual arrogance can creep in? 9 Do you see that? 10 A. Yes. 11 Q. Then at that particular point your re-examination begins 12 and you pick up immediately that point of absence of 13 challenge, so you say: 14 "You say that SCRO, to your knowledge, has not been 15 challenged. Do you mean in court? 16 "Yes. 17 "You said that the defence would have people looking 18 at your work?" 19 He says: 20 "Absolutely, yes. 21 "How does that come about?" And if we could put the 22 page on the right, put it to the left and bring up the 23 next one. 24 "Well, there is ex-heads of bureau who are now 25 independent fingerprint consultants who offer their page 113 1 services." 2 Then you will see: 3 "Have you heard of a Mr Swann doing such work in 4 Scotland? 5 "Yes. 6 "Did he used to work in SCRO? 7 "No", and then it goes on. 8 A. Yes. 9 Q. There is a reference to Mr Swann in the context of an 10 independent expert checking SCRO work that's a few days 11 earlier. 12 A. Yes. 13 Q. Does that prompt the possibility you may have known 14 of Mr Swann's involvement for Ms McKie before this? 15 A. With respect, I don't think so because if I had known 16 that specifically I would have put it to her. I think 17 what I was aware of that he was the sort of or he was 18 one of the people who had done that in other cases is 19 what, I think, this means. If I'd had -- you see the 20 difficulty was I wanted to know who the defence had used 21 before the trial and they were saying to me there was 22 somebody but we're not sure who it is and I couldn't put 23 something on the basis of rumour. 24 So, with respect, I think clearly I was aware 25 Mr Swann was a former or a fingerprint expert who had page 114 1 done this sort of thing but I still don't think I was 2 aware that he'd actually been approached by the 3 defence -- specifically, in this case I mean. 4 Q. So, if I understand you correctly, that earlier -- the 5 second passage I've looked at is earlier so in the 6 re-examination of Mr Macpherson your recollection would 7 be that you know of some people who did this sort of 8 work and Mr Swann was one? 9 A. Yes, and it may even have been that he had been 10 suggested to me as a possibility in this case, but I 11 suspect I had no confirmation he was the person or I 12 would have put it to Ms McKie. 13 THE CHAIRMAN: I was going to ask you that. If you had had 14 a note there were three possibilities on the note and 15 you couldn't have put any one of them firmly to the 16 witness. 17 A. What the note actually says, Sir Anthony, is independent 18 experts who looked at the McKie case, which appears to 19 suggest by that time it was confirmation. What I 20 suspect is I was aware he was someone who did that type 21 of work but I did not know or could not -- it may have 22 been rumoured but not confirmed that he looked at Y7. 23 THE CHAIRMAN: And the note is firmer -- 24 A. Yes, that's why I say I think the note appears to me to 25 be firmer than what I think this was meant to reflect. page 115 1 MR MOYNIHAN: You indicate that when it came to 2 cross-examination of Ms McKie where she said she did not 3 know of anyone who thought it improper to put a specific 4 name to her without you yourself having had 5 confirmation? 6 A. Absolutely. I may even have been told we think it's 7 Mr Swann but unless I was told it was Mr Swann I 8 wouldn't have put it. 9 Q. If I close this chapter by the fact, as you know, and 10 you mention in your own evidence, that the notes of the 11 meeting that you had with the SCRO officers later in May 12 after the trial -- 13 A. No, with respect, it was -- sorry, not those officers 14 but with SCRO personnel, yes, indeed. 15 Q. -- indicates that you had a knowledge of three officers 16 and a Mr Swann as well, that you had had knowledge of 17 Mr Swann? 18 A. Yes. 19 Q. First of all, is the fact you found this slip of paper 20 with three names now the explanation for he reference to 21 three? 22 A. I think that must be. That would certainly seem, to my 23 mind, logically to tie in. 24 Q. So far as the accuracy of the note of the meeting with 25 the fingerprint personnel later, if it infers you knew page 116 1 before cross-examination of Ms McKie that Mr Swann had 2 been instructed on her behalf, would that note now be 3 regarded by you as inaccurate? 4 A. I have a number of reservations about what the minutes 5 of that meeting say about Mr Swann. It says, for 6 example, I had had contact with him and I had spoken to 7 him. That simply isn't right. So my position remains 8 the same. If Peter Swann had been confirmed to me as 9 the defence expert at the time of the cross-examination 10 I'm fairly certain, if I had chapter and verse, I would 11 have put that to Ms McKie. That is what makes me think 12 this must have been confirmed later. I could be wrong 13 but I can't see me having that ammunition and not using 14 it when I got that answer. 15 Q. I have two other topics to raise with you, one short and 16 one slightly longer. 17 The short one, perhaps I'll take. The Inquiry has 18 some information from a Professor Espie, who is a 19 professor of clinical psychology, and what I want to 20 do -- though this is perhaps more a matter for legal 21 submission -- I will just run this by you to see what 22 your reaction to it is. Mr Espie, as a clinical 23 psychologist, was instructed for a medical opinion on 24 Ms McKie's medical state before the trial, not 25 necessarily related to the trial, perhaps relating to page 117 1 disciplinary proceedings. 2 He concluded that she was fit, not suffering from 3 any medical conditions. He also concluded from his 4 discussion with her, that lasted up to about an hour, 5 that there was no psychological indication that she was 6 lying in any respect and, indeed, he concluded that she 7 was telling the truth. 8 One of the issues that's been raised is whether the 9 opinion of Professor Espie to the effect that Ms McKie 10 was telling the truth, whether that information should 11 have been communicated to the prosecution and perhaps 12 might have had a bearing on the prosecution's attitude 13 to the prosecution of Ms McKie. 14 A. Yes. 15 Q. Do you have any reaction to the relevance, either as a 16 matter of general comment or a matter of law, the 17 relevance of such an opinion from Professor Espie? 18 A. There are difficulties about presenting evidence of that 19 sort in Scots law. The one case which springs to mind 20 immediately is the case of Grimmand, in which I was 21 involved as an advocate, a totally different context but 22 essentially the truth or falsehood of a particular 23 statement made by a witness in our law is a matter to be 24 assessed by the jury and we have a traditional 25 reluctance to do what the Appeal Court, I think, called page 118 1 not in Grimmand but another case called Oath Supporting. 2 In other words, we have a traditional reluctance to 3 accept expert evidence of that sort. 4 Q. So if, as the suggestion would seem to be, 5 Professor Espie's expression of opinion was communicated 6 to his opposite number in the Police Medical Service but 7 lay there and did not get passed on to the prosecution 8 authorities, do you think, just from your knowledge of 9 the system, it would have made any difference had 10 Professor Espie's opinion been communicated on? 11 A. That would be pretty unlikely because the Crown 12 decisions to prosecute or not to prosecute would be 13 based primarily on what we thought was the available 14 evidence and evidence in relation to the veracity of a 15 witness as a concept as opposed to the veracity in 16 relation to a particular fact is a matter that we 17 traditionally are reluctant to accept as valid 18 testimony. 19 Q. In fact, we have seen earlier, if I just recollect the 20 Deputy Crown Agent's note, that some of the background 21 to this proceeded on the basis that Ms McKie did 22 present, indeed, as he said, as a credible witness? 23 A. When I mention the case of Grimmand this case has been 24 to most recently explored in Scots law in relation to 25 expert testimony supporting the reaction of children who page 119 1 have been abused. That was the context in which both 2 the Grimmand case and the Cosgrove Commission considered 3 it and, as I say, there is a traditional reluctance to 4 accept that in our law as a form of testimony that's 5 admissible. 6 Q. I have used the wrong expression about the Deputy Crown 7 Agent. It wasn't that she was credible; it was that she 8 was plausible. 9 A. Yes. 10 Q. So, based on your experience, Professor Espie's opinion, 11 you think, is unlikely to have had a bearing on matters 12 for the reasons you have explained? 13 A. Yes. 14 Q. I think we can take that up further with the -- I have 15 the Steer(?) encyclopaedia but I might read Grimmand. 16 A. With two Ms. 17 The Cosgrove Commission changed the law because the 18 Crown weren't allowed to lead evidence as to a pattern 19 of reaction by children on the basis that it was what 20 was described as oath helping. It also was considered 21 by the Appeal Court sort of en passant in relation to an 22 Anderson appeal in an abuse case, but if I sat down and 23 thought about it long enough I might remember the name 24 of that one but I can't off the top of my head. 25 Q. I might ask Miss Carmichael to do some research because page 120 1 I'm obviously not good enough at it. 2 If we move on -- 3 A. Sorry, if it's of interest, I think my own sister, who 4 is a research neuro-psychologist and is a forensic 5 expert witness in England and Wales wrote a dissertation 6 on that subject, in fact, about three years ago. 7 Q. We will follow that up. 8 The final topic I wanted to ask you about, again 9 within your statement, is the question of illustrative 10 material and the chartings that were done. 11 I want to begin with something that picks up your 12 observation that these are illustrative. They were used 13 for demonstration purposes. 14 We have evidence from an English expert, a man 15 called Mr Shepherd -- if I bring up FI0082 -- I will not 16 go to the specific paragraph necessarily but if I 17 understand correctly what Mr Shepherd is saying -- the 18 particular page doesn't matter. It just up there if we 19 need to go there -- Mr Shepherd is saying that if 20 illustrations are used -- there's nothing on that 21 screen, it's just there for me if I need to. 22 Mr Shepherd says that in English practice if any 23 witness were to produce an illustration of fingerprints, 24 then it would be an individual illustration and not a 25 joint illustration. page 121 1 In this particular case the Scottish Criminal Record 2 Office staff produced joint illustrations; is that 3 correct? 4 A. In the sense of there was one that would be spoken to as 5 opposed to the sort of agreed illustrative document 6 rather than each of the -- do you mean each of the 7 individual four who looked at the print would produce 8 their own illustrative document? 9 Q. Yes. 10 A. No, that's not commonly done here. 11 Q. That's exactly the point I wanted to ask you about, not 12 just in this case but in general? 13 A. In general, that was not done at that time. I don't 14 think current practice has changed. 15 Q. Did the fact that the four officers -- let us take it on 16 this basis: they produced one joint illustration that 17 they have discussed and agreed amongst themselves. Was 18 that common knowledge, that that's exactly what happened 19 with these items? 20 A. As I said to you, it was my understanding that it might 21 have been possible for the four of them collectively to 22 produce more than 16 points. So it follows from that 23 there must be some agreement that these are the 24 particular 16 that would be used for illustrative 25 purposes or perhaps produced by one of the officers on page 122 1 behalf of them all. 2 Q. Was that common practice in Scotland at that time? 3 A. It's my understanding -- I don't know whether it is 4 jointly agreed or if it's produced by one and agreed by 5 the others or if they actually consult about what 6 16 points to use but certainly it was my understanding 7 that all fingerprints that got to court the Scotland had 8 been checked four times and one common illustrative 9 exemplar, in effect, was used, yes. 10 Q. The reason for asking you about this matter in general 11 practice is if I again play devil's advocate, 12 Mr Shepherd looking at it from across the border in 13 England where he would expect each expert to produce his 14 own independent example, it would be, one, a factor from 15 that perspective in suggesting there had been some 16 collusion -- and I mean that in its full pejorative 17 sense -- some collusion among the experts here, the fact 18 that they produced a joint report. 19 A. Yes. 20 Q. Have you any comment on that, viewing it from the 21 Scottish practice? 22 A. If I could come into the same point from a slightly 23 different angle, I thought one of the most telling 24 points which Mr Findlay raised in cross-examination with 25 the SCRO officers to suggest that the process wasn't page 123 1 quite as independent as one thought in general terms, 2 was the fact that the way in which their procedures 3 worked was such that by the time the second officer 4 looks at the print and does his or her own comparison, 5 he or she already aware that another officer considers 6 it to be a match, not only that, considers it to be a 7 match for a particular digit from the fingerprint form 8 of the suspect and each successive person is in the same 9 position or they wouldn't be looking at the print. 10 So he was raising the issue of collusion in almost a 11 subliminal sense because they knew that that was the 12 procedure that was followed. It seems to me to be 13 perhaps an example of the same thing, that it is common 14 agreement amongst them that there is a match and I don't 15 know, as I say, whether one officer produces the actual 16 comparison document and the others look at it or if it's 17 done by some kind of collective agreement. But 18 collusion in that broad sense is happening in those 19 circumstances, I think, fairly obviously. 20 Q. If one takes any other variable, the fact that the four 21 experts agree a joint production -- 22 A. Yes. 23 Q. Do you see anything sinister or untoward, given the 24 Scottish practice, in that happening? 25 A. No, because I take it that they know what they're page 124 1 supposed to be doing and I take it that no-one would 2 agree an illustrative material to go before the court 3 where they disagreed, for example, with one of the 4 points that one of their colleagues had produced. 5 Q. Again, just for the avoidance of any doubt -- 6 A. I'm sorry, if I can qualify that slightly, I don't know 7 what the actual process is by which they reach that 8 agreement. 9 Q. Again, just for the avoidance of any doubt, the general 10 practice, not just with McKie but the general practice 11 in Scotland was for Fingerprint Officers to present one 12 illustration on a joint basis? 13 A. Collectively, yes. 14 Q. If I move to a completely different angle myself in 15 relation to this. You have had experience of using 16 these illustrations in court. 17 A. Yes. 18 Q. And they, in fact, turned out to be less than helpful. 19 A. Yes. 20 Q. Can I ask you just in relation to terminology: 21 illustrative can mean a number of things. First of all, 22 I understand from your statement that it was very clear 23 the Fingerprint Officers were explaining to you they had 24 not arrived at their conclusion of identification by 25 reference to these chartings. The chartings were page 125 1 produced afterwards as illustrations? 2 A. That was my understanding. 3 Q. Secondly, as illustration, they were not saying to you 4 that these points on the charts were the only 16 points; 5 they were simply produced as an illustration of 6 16 points? 7 A. That there were 16 points, yes; that's my understanding. 8 Q. The third point that I wanted to explore with you in 9 your preparation for the trial, had anybody suggested to 10 you that the illustrations that were produced were 11 anything other than an accurate recording of 16 points 12 in sequence and agreement? 13 A. No. The whole point is that's precisely what they are. 14 Q. Had anyone raised with you the fact that they were 15 produced on what we've come to call a charting PC in 16 that they were digitally prepared and that the machine, 17 in fact, produced an inaccurate reproduction of the 18 points? 19 A. I don't recall that being raised because that would 20 obviously have been a concern. 21 Q. But you don't recall them raising it with you? 22 A. No. 23 Q. But as you say in your statement -- 24 A. Sorry, to be quite clear, it was made clear to me that 25 these were not the actual materials that they had used? page 126 1 Q. Yes. 2 A. That these were illustrative and that they had looked at 3 their own images of the mark, yes. 4 Q. And, as you say, the material they would have used would 5 also have been produced in court, the original 6 photograph and the fingerprint form? 7 A. Yes. 8 Q. What I am taking up is the enlargements that they did 9 use you understood were illustrative in the sense we 10 have described. 11 A. Yes. 12 Q. It's whether anybody said, "Mr Advocate Depute, that 13 photograph, in fact, is an inaccurate record of the 14 16 points because the computer would just simply not 15 accurately plot points"? 16 A. I have no recollection of ever being told they were 17 inaccurate. The point may have been made that the 18 quality of what had been looked at at first instance was 19 better but that's quite a different thing from saying 20 it's inaccurate. If an expert had said to me, "The 21 materials you are putting before the court are 22 inaccurate", that would be the cause of grave concern. 23 Q. You would have been setting yourself up for a fall, in 24 effect? 25 A. Exactly, yes. I would have said, "What's inaccurate page 127 1 about it?" So I've no recollection of that. 2 Q. Moving on from that though, the two points I wanted -- 3 two separate points -- you have explained quite 4 carefully in your statement that, in fact, when the 5 photographs were used in court the technology just 6 proved to be quite inadequate. 7 A. Yes. At a certain stage of magnification the skin pores 8 and so on become apparent and it becomes a much more 9 confusing image but when one enhances it even more my 10 recollection is some of the pixillating and so on was 11 starting to come up and the lines became smudges and it 12 was very difficult to see precisely what was going on, 13 the definition wasn't good. But we'd never actually 14 enlarged them to that extent before in a court in my 15 experience. 16 Q. So, in other words, the fact that the term used in court 17 was "blobby", the fact they turned out to be blobby when 18 enlarged was not something that had been anticipated? 19 A. That first arose from my recollection when a 20 particular point was point was being put to one of the 21 SCRO officers, I think Mr Stewart, the fist officer, by 22 Donald Findlay and when it was enlarged to a certain 23 point it became very indistinct and the word "blob" was 24 used in cross, yes. 25 Q. If I can combine that with a separate point, you have page 128 1 also explained that in addition to the technology 2 letting you down, in fact, it transpired that due to an 3 absence of any experience of answering challenge the 4 Scottish Criminal Record Office staff, the officers 5 turned out to be less well able to explain themselves 6 than their American counterparts. 7 A. That was my impression of what happened. They certainly 8 were much less clear in their explanation and that was 9 my attribution, that the Americans had more experience 10 of this sort of thing whereas the SCRO people had never 11 been challenged in cross-examination. 12 Q. You hint at one example and perhaps if I bring up the 13 example I've found that illustrates or draws these two 14 points together, the technology and the inability to put 15 forward a reasoned explanation, it is SG0526. 16 This is the evidence of Charles Stewart. Mr Stewart 17 was your principal witness? 18 A. Yes. 19 Q. Within the transcript, if I go to page 125 please, PDF 20 page 125. This is the cross-examination of Mr Stewart 21 by Mr Findlay. 22 A. Yes. 23 Q. Perhaps if we put 125 and 126 up just now. We have 24 spoken about the Galton points here and then if we drop 25 the left-hand sheet and bring up 127 on the PDF and put page 129 1 it beside 126. Here we have an exchange at the foot of 2 the original transcript page 174, an exchange between 3 the witness and Mr Findlay beginning at line 20. 4 A. Yes. 5 Q. Mr Findlay: "So can you demonstrate to the ladies and 6 gentlemen of the jury then are two clear 7 characteristics?" 8 It must be "can you demonstrate to the ladies and 9 gentlemen of the jury two clear characteristics." 10 "Yes, sir. 11 "Can you? Look at the latent for us, please, and 12 put that on screen. Again, the same places obviously 10 13 and 11, please, Mr Stewart. So those are the 14 characteristics that we've looked at earlier, 10 and 11, 15 Mr Stewart, and just point them out can you so that we 16 can locate them. 17 "That is 11 and that is 10. Yes. 18 "Where is the bifurcation anywhere there?" 19 The witness said: "The ridge comes along here, sir, 20 and seems to split and carries down there and carries on 21 there." 22 Mr Findlay says: "Where? 23 "Well, I can see it, sir, I am afraid." 24 Mr Findlay begins to say presumably he can't but 25 then he's ably assisted from the bench and his Lordship page 130 1 says: 2 "Well, I have a magnifying glass and I must confess 3 I have great difficulty seeing it. Can you point out 4 exactly where it is with the marker? Looking at it with 5 the magnifying glass, it is just a fudge?" 6 The witness: "The ridge goes up here, my Lord, 7 there and splits that way and that." 8 Mr Findlay says: "That is what you say you can show 9 to the jury? 10 "Yes, sir." 11 Then Mr Findlay says: "You see, there are two 12 things here. We will just take a slightly flippant 13 example just to illustrate the point. An elephant walks 14 into this court and there is no point in me telling the 15 ladies and gentlemen of the jury it is in fact a cow 16 because it will never make it a cow. It will still be 17 an elephant. So there are two things here that you are 18 doing. One is that you're looking at things that you 19 say you can see, yes? 20 "That is correct, sir. 21 "But of course in fairness -- criticism but in 22 fairness -- the test, the worth of your view of the 23 matter is it is helpful if we can actually see something 24 for ourselves because at a point the ladies and 25 gentlemen of the jury have to decide this matter -- yes? page 131 1 "Yes, sir." 2 Is that an illustration? 3 A. That's precisely the sort of thing, yes. 4 Q. So, first of all, even for the Court, the judge -- we 5 don't have the jury's comment -- but the judge was 6 saying he was having difficulty seeing the point. 7 A. Yes. 8 Q. Mr Findlay, in very colourful language, is making one of 9 the points you are the officers are simply saying "it's 10 my experience that", but they were unable to present 11 reasons? 12 A. Effectively, they are listening to my iron in my 13 judgment; that sort of thing, yes. 14 Q. Mr Findlay is quite dismissive of that. He's saying, 15 "Your's saying it's an elephant and I can see a cow"? 16 A. Yes. 17 Q. "And you'll not persuade me otherwise." 18 That's only obviously a limited example. 19 Was that the type of thing that you are indicating 20 actually happened? 21 A. That's exactly the sort of thing I was indicating and 22 hoping to indicate in my statement was causing 23 difficulty from the Crown perspective. 24 MR MOYNIHAN: I think, with a degree of comfort from me, 25 that will conclude my questions, sir, and I am not under page 132 1 citation from this authority I'm under citation from 2 another authority so if I may be permitted to depart? 3 THE CHAIRMAN: I will release you. 4 Just while it's in my mind following on from what 5 you have just been asked, this is really what we're 6 discussing, the quality of the presentation as opposed 7 to the quality of the evidence. 8 A. Yes. 9 THE CHAIRMAN: But how did that compare with the way, for 10 example, Mr Wertheim's points were demonstrated? 11 A. You will find this actually summed up quite neatly in a 12 passage in Lord Johnson's charge to the jury where he 13 contrasts the evidence of the SCRO officers with the 14 response of the Americans where they appeared to be 15 giving clear and perhaps more cogent and logical reasons 16 for their conclusions which they had reached; whereas 17 the SCRO officers were saying, "To my eye, it looks like 18 such and such", the Americans would say, "Well, I can 19 see clearly this line, that line and it's generally 20 accepted that such and such is not accepted as that 21 characteristic". So there was more explanation in the 22 evidence of the two American experts than there was, in 23 general, with the SCRO officers. 24 I would say at this point though and I do accept 25 responsibility, the presentation of the case and page 133 1 presentation of the evidence was effectively my 2 responsibility and we were in what was uncharted 3 territory for us here, in the sense we had never blown 4 things up that big before or had been required to. 5 THE CHAIRMAN: Be that as the ultimate responsibility, it 6 it's fair to put it that way, but Lord Johnson's 7 observations maybe accord with your own view. 8 A. It accorded with my impression at the end of the day, 9 yes. 10 THE CHAIRMAN: Are there applications to perhaps begin with 11 Miss Galbraith. 12 MISS GALBRAITH: Thank you, sir. There are three points 13 that I would propose to raise with this witness: 14 firstly, briefly what Sheriff Murphy's views would have 15 been on the prosecution of the case, had there been a 16 clear indication at the outset of the true state of the 17 evidence; secondly, I would like to ask him about the 18 meeting with the SCRO officers which we have already 19 heard a little about -- 20 THE CHAIRMAN: That's the pretrial -- 21 MISS GALBRAITH: The pretrial meeting; and then, lastly, 22 simply to address comments that may have been made or 23 have been made by Mr Brown in the Inquiry. 24 THE CHAIRMAN: Yes. You can ask about those matters. 25 Cross-examined by MISS GALBRAITH page 134 1 Q. Sheriff Murphy, you gave evidence in terms of your 2 analysis of the case before starting the prosecution 3 that the two crucial lines of evidence was, first, the 4 fingerprint, Y7, and, secondly the eye witness evidence 5 of DC Kerr. 6 A. Yes. 7 Q. I suppose to a lesser extent the timing of the placing 8 of the fingerprint also featured in your analysis? 9 A. Yes. 10 Q. As you have explained, as the evidence transpired, the 11 eye witness evidence of DC Kerr wasn't what you 12 understood it to be? 13 A. Yes. 14 Q. And, similarly, the position with the placing of the 15 fingerprint between the aluminium powder and the black 16 powder wasn't what you had understood? 17 A. That was less an issue because it was possible either 18 way for the print to have been placed before or after. 19 As the evidence it came out it didn't entirely exclude 20 the possibility of it being placed after, albeit it was 21 perhaps not as strong a point as it otherwise might have 22 been if the evidence of the Scenes of Crime people had 23 been that it must have been planted after the aluminium 24 powdering obviously that would have been better from the 25 Crown perspective but it didn't entirely exclude it. page 135 1 But, yes, I accept, yes, that that was part of my 2 analysis at the time, yes. 3 Q. But as the evidence turned out during the trial what you 4 were ultimately left with the strand of evidence was the 5 fingerprint, relying on the fingerprint? 6 A. Basically nothing else, yes, that is right. 7 Q. Had you known that that was the position that would be 8 the position of the prosecution case at the outset can 9 you say today what your view would have been in terms of 10 continuing with the prosecution? 11 A. Well, the SCRO evidence would still have existed and 12 would not have gone away. What I would say about that 13 is that the question of possibly having that verified 14 again independently would have been a much larger issue 15 than it was for me and the critical factor there was the 16 evidence of Mr Kerr. If that had not been there, I 17 can't say what I would have done because the difficulty, 18 of course -- the decision to prosecute had been taken 19 prior to my involvement and my role was to basically 20 pick it up and run with it, but had the misapprehension 21 about Mr Kerr's evidence not occurred I think I would 22 have looked much more critically at the possibility of 23 having it looked at independently. But I can't say what 24 the outcome of that would have been so, you know, that's 25 as much guidance as I think I can probably give there. page 136 1 Q. Indeed, with that in mind, may you have given 2 consideration to perhaps delaying the start of the trial 3 in order to give you an opportunity to look into that? 4 A. Yes. When I said that I felt -- I didn't really feel 5 under time pressure because, in the one sense, there was 6 a little pressure to get it going because it hadn't 7 started before, but if I had considered that a further 8 review was necessary that would not have been a primary 9 concern. I would have just said, "No, I want this 10 before we start", yes. 11 Q. Sitting now with our 20/20 vision looking back on the 12 case, do you feel that you were given sufficient 13 information and information of a high enough quality to 14 enable you to prosecute the case properly? 15 A. It depends what you mean by -- there was a sufficiency 16 and the case did go to the jury, so there was a suitable 17 case that was presented. Some aspects of it could have 18 been much better presented in retrospect and the 19 critical issue here is the presentational one because 20 we'd never had to do that before and it was a learning 21 curve for all of us. That was new territory. I think I 22 would have looked at the presentation in much more 23 detail than I did if I had to do it all over again. But 24 I can't say if my decision to go ahead as opposed to 25 going back to our office and saying, "What are we doing page 137 1 here", would have been the same -- that's really 2 something I can't answer because I don't know what the 3 results of any independent analysis would have been 4 since there seems to be fingerprint people giving views 5 both ways subsequently. 6 Q. Can I ask you please about the meeting that you told us 7 about shortly before the start of the trial. 8 A. Do you mean when we had the defence materials or the 9 first meeting? 10 Q. Yes, the defence materials, when you met Charles Stewart 11 and Hugh Macpherson. I think you have said as a result 12 or during this meeting you were taking notes for 13 cross-examination purposes? 14 A. Well, I would have taken some notes of what they said to 15 me from which I would have made up some notes which I 16 used for cross-examination and I've found my 17 cross-examination notes but I haven't found the original 18 source material, I'm afraid. 19 Q. So it wasn't the cross-examination notes you were taking 20 at the time. You subsequently considered the notes you 21 had taken at the meeting and made up your 22 cross-examination notes? 23 A. Yes, that would have been the process but, as I say, I 24 don't have the notes of the original meeting. What I 25 have is the sheets from which I asked the questions in page 138 1 court. 2 Q. You said earlier in evidence that the meeting had lasted 3 for quite some time. 4 A. Yes. Because obviously they had to look at the 5 documents and then tell me what they thought of it. So 6 I can't remember the exact details but it's quite 7 possible that I went upstairs and had lunch or something 8 and came back and spoke to them. There would have been 9 a period when they were looking at it when I wasn't 10 there and then at a certain point I'd come back and they 11 gave me their impressions. 12 Q. Can I ask you, Sheriff, do you recall giving a statement 13 to officers from Tayside Police in around 14 September 2000? 15 A. Tayside Police? 16 Q. It was in relation to an inquiry you may know as 17 Operation Alba in relation to this case when they asked 18 you questions about the prosecution. 19 A. I'm sorry, I don't. 20 Q. It's also known as the Mackay Robertson Inquiry. 21 A. The what, sorry? 22 Q. Mackay Robertson. 23 A. I'm sorry, I don't remember. Do you mean in relation to 24 my role as Advocate Depute at the trial. 25 Q. Yes. page 139 1 A. I have to say I don't recall that. 2 Q. Can I ask you please to have a look at a document 3 reference CO2036. 4 A. That seems to be me all right, yes. I'm sorry, I don't 5 mean to be facetious but that's my personal details. 6 Q. I think, in fairness, the copy that we have isn't signed 7 at the end, perhaps, in the way a statement would 8 normally be so you may not have seen this recorded but 9 do you recall having seen a statement like this before? 10 A. No, I don't. 11 Q. Does it assist you to remember when you gave this 12 statement? 13 A. The police have come to interview me two or three times 14 about cases I've been involved in afterwards. I don't 15 remember this one specifically, I'm sorry. 16 Q. I think if I could ask you please to look at the second 17 page of this statement and on this page you mention the 18 meeting we have been discussing that you had with the 19 SCRO experts. 20 In particular, if we can have expanded, please, the 21 third, fourth, fifth and sixth. I just want you to take 22 a moment to look at that. (Pause) 23 A. Yes, thank you. I have read that, thank you. 24 Q. I think, in fairness, it gives broadly gives the same 25 account of the meeting that you have given us this page 140 1 afternoon. 2 A. Yes. Yes, I think so. 3 Q. If we can see the top paragraph, the second sentence, 4 you indicate that the meeting took place in a courtroom 5 at the High Court in Glasgow: 6 "... and together we spent the best part of the 7 afternoon going over the defence productions ..." 8 A. Yes. 9 Q. Then the only other point I would like to specifically 10 mention is in the last paragraph. It states: 11 "They also told me that they would go away and 12 examine the defence productions more closely and report 13 back with anything further of relevance." 14 A. Yes. 15 Q. That would be correct? 16 A. That would be my standard procedure when I'd spoken to 17 an expert witness, I'd always say that, yes. They told 18 me -- I would always ask an expert to do that, if 19 anything else comes up contact the Fiscal immediately. 20 Q. With that in mind, can I put to you comments that were 21 made by both Mr Macpherson and Mr Stewart regarding that 22 meeting and just ask for your comment on that. 23 Firstly, if you look at the Inquiry statement given 24 by Mr Macpherson, which is FI0055. If you go to PDF 25 pages 39 and 40, if we could have both pages up, please, page 141 1 and if we look at paragraph 172, Mr Macpherson states: 2 "Again, prior to HMA v McKie we spoke to a 3 representative from the Crown, I believe it was Mr Sean 4 Murphy. It was a brief discussion regarding the fact 5 that there was an expert disagreed with our opinion on 6 mark Y7. I don't recall a discussion about the basis 7 for our opinion or looking at any production books, 8 et cetera, with the Crown representative. I believe we 9 were shown Mr Pat Wertheim's enlargement of mark Y7 with 10 a brush stroke through it, which had a clear plastic 11 overlay attached to it. There was no discussion about 12 the best way to present my evidence. Charles Stewart 13 had discussions with the Procurator Fiscal." 14 A. Yes. 15 Q. Can I ask you just generally for your comment on 16 Mr Macpherson's account of this meeting? 17 A. This appears to be a reference to the second meeting 18 because, obviously, it refers to having Pat Wertheim's 19 materials. So I think that must be the court meeting. 20 There doesn't seem to be any reference to the initial 21 discussion is my first reaction. 22 Q. That is correct. My understanding is that was the 23 meeting we have just been talking about, that you 24 mentioned in your Mackay Robertson statement; is that 25 right? page 142 1 A. Yes, yes. 2 Q. Whereas your understanding of this meeting is that it 3 took some time, the best part of an afternoon? 4 A. Well, yes, because, as I say, I remember them coming 5 with magnifying equipment and having a good look at the 6 defence materials. Yes. It's not something that -- it 7 wasn't a -- my recollection is it was not a brief 8 discussion, although I mean, I don't know, that may be a 9 confusion or joining together of the two meetings 10 because the first meeting may have been more general. 11 But, no, certainly there would be no point -- well, let 12 me put another way. My recollection is the day we 13 looked at the defence materials we were all there for 14 some time, yes. 15 Q. Similarly, can I ask you to look at Mr Stewart's account 16 of this meeting. His statement is at FI0036 and, again, 17 if we can have pages 55 and 56 please. 18 At paragraph 264 Mr Stewart explains discussions 19 with the Crown. He says: 20 "I was not told about the defence expert's opinion 21 and productions until a day or so before I was due to 22 give evidence. I was called down to court to meet with 23 the Advocate Depute, Sean Murphy, and I think Ian 24 Bradley, the Procurator Fiscal. It was at this point I 25 became aware that the defence was going to be based on page 143 1 mis-identification as opposed to wrongful making of the 2 mark. It was also at this point that I became aware the 3 defence had consulted with two experts, Mr Wertheim and 4 Mr Grieve. I was briefly shown the defence productions 5 although I was not given the opportunity to examine them 6 in detail. 7 "I was not asked for any advice by the Advocate 8 Depute in respect of the case. I cannot remember any 9 meetings with the Advocate Depute before the trial, 10 apart from the one I referred to above. Accordingly, I 11 cannot remember having any discussions with the Advocate 12 Depute, for example, as to how fingerprint evidence 13 should be addressed or about how the Crown fingerprint 14 evidence should be displayed or in respect of 15 difficulties with charted enlargements." 16 A. Yes. 17 Q. Once again, that would seem to give a different account 18 of the meeting. 19 A. I would make a number of comments about that. First of 20 all, I don't accept that was the only meeting with 21 Mr Stewart because I have a specific note of going up to 22 SCRO and the date in my statement. 23 So far as his reference to being briefly shown the 24 defence productions and not given the opportunity to 25 examine them in detail: the whole point of bringing them page 144 1 down to the court was so that they could look at the 2 materials and it really was a matter for them how long 3 they needed to spend with them. I'm not the expert, so 4 I find that a little strange as a reaction because the 5 idea was to allow them as much time as they wanted to 6 look at them and to go through it with me." 7 Going on the second paragraph, I'd make a number of 8 comments about that. As I've mentioned I seem to have a 9 clear written reference to an earlier meeting. With 10 regard to the question as to how fingerprint evidence 11 should be addressed, broadly speaking, in very general 12 terms, although I haven't got specific notes of it that 13 was pretty much my recollection as to what the first 14 meeting was about because, in fact, Mr Stewart was the 15 first of the SCRO officers to give evidence and if one 16 looks at the transcript, as I think is available to you 17 all, I didn't actually go to the McKie case for quite 18 some time. There was a lengthy what we described 19 amongst ourselves in the Crown team as a tutorial on 20 fingerprints, there was an explanation as to how 21 fingerprints are gathered and represented and so on. 22 That was all presented on the basis, my recollection is, 23 on the basis of the earlier discussion we had and it was 24 only after much general discussion about fingerprint 25 evidence and how marks were recovered and examined and page 145 1 so on that we actually got on to Y7 at all, so I don't 2 accept that. 3 Now, the last part of the position is a little more 4 complex because with regard to how Crown fingerprint 5 evidence should be displayed or in respect of 6 difficulties with charted enlargements, I certainly 7 accept that. I did not discuss either of those things 8 with them in advance because we didn't really realise 9 that the physical difficulties about enlargement were 10 present until it actually happened at the trial. So I 11 agree that wasn't the subject of any prior discussion. 12 Q. If I can lastly ask you about comments that have been 13 attributed to you by Les Brown, is that a gentleman 14 that -- 15 A. Les Brown, the Fiscal? 16 Q. Not, not Les Brown the Fiscal. He is a retired police 17 officer who has given evidence to the Inquiry. 18 A. Oh, right. 19 Q. There is a comment that has been attributed to you that 20 I would just like to ask you about. 21 A. Sure. 22 Q. And comment on, I'm sorry. 23 A. Yes. 24 Q. He suggested that there was an incident during the trial 25 where you, after Officer Lees had given evidence, that page 146 1 you spoke to police officers outside the court and made 2 a comment, "That's two that's committed perjury". 3 A. Sorry? Me? 4 Q. Yes. 5 A. I'm sorry, please go ahead. 6 Q. It's really just to ask you, Sheriff Murphy, if that 7 happened. 8 A. There is a reference at the meeting that we had 9 afterwards to two people, because obviously the whole 10 Crown position was if Ms McKie had committed perjury one 11 of the logging officers must also have committed 12 perjury. I have absolutely no recollection of making 13 any such to remark to a police officer and I can't think 14 how I would come to be discussing the case with a police 15 officer. 16 Q. The meeting you are referring to, that included the SCRO 17 officers? 18 A. Yes, there's a reference there to two people been lying 19 but ... but that would be a quite inappropriate mark, in 20 my view, for an Advocate Depute to make. I have no 21 recollection of that. Is the suggestion I spoke to a 22 court officer or I spoke -- how do I come to -- I don't 23 understand the context. 24 Q. It may simplify matters if we have a look at the 25 statement of what he said. page 147 1 A. Yes, indeed. 2 Q. The document number is FI0017 and if we go to page 10 of 3 that, this is Mr Brown's statement to the Inquiry. 4 THE CHAIRMAN: 46A. 5 MISS GALBRAITH: It's paragraph 46A which we see is headed 6 "Comments of Advocate Depute: Sean Murphy." 7 A. The first point is this remark appears not to have been 8 made to him but to be relayed to him by other people. 9 Is that ...? 10 Q. Yes, that is perhaps a common theme. 11 A. I'm sorry, I have no recollection of that and I would be 12 quite surprised if I had made a remark of that sort. I 13 don't understand why I'd be speaking to a number of 14 police officers outside court after Mr Lees had given 15 evidence. My recollection is that Mr Lees gave evidence 16 on the same day as Mr Kerr because they were regarded as 17 a package at that point in the trial. Of course, after 18 Mr Kerr's evidence the position was quite different. I 19 have to say I have absolutely no recollection about that 20 and I'm quite surprised that that is suggested, yes. 21 MISS GALBRAITH: Thank you, Sheriff Murphy. I have no 22 further questions. 23 THE CHAIRMAN: Yes. We normally take a short break at this 24 stage but I should say that I don't want anybody to feel 25 under pressure of time but I do intend to complete page 148 1 Sheriff Murphy's evidence this afternoon. So if we stop 2 now for ten minutes and we will resume at 3.10. 3 (3.00 pm) 4 (A short break) 5 (3.12 pm) 6 THE CHAIRMAN: I am going to ask Mr Macpherson next, do you 7 have any questions? 8 MR MACPHERSON: I do have one issue I would like to raise in 9 relation to the view taken about police evidence and it 10 relates to a document that was put to the Sheriff but 11 not fully explored, if I may. 12 THE CHAIRMAN: Certainly, yes. 13 Cross-examined by MR MACPHERSON 14 Q. Sheriff, if I could ask you to have a look again at, I 15 think, what is called the Crown precognition in the case 16 which is a document, reference CO2561. 17 I think you told us that these were the papers that 18 you received. 19 A. Yes. That's the analysis of the evidence. Yes, that 20 would be in the papers I received, yes. 21 Q. If I just take you to the first two paragraphs of that 22 page. It reads there: 23 "The witnesses in this case are all basically 24 credible. In general, they are police officers and 25 legal persons associated with the court proceedings. page 149 1 Problems arise with the reliability we normally expect 2 from police evidence, in particular in relation to the 3 actual sequence of events. Obviously, none of the 4 officers involved in the murder inquiry expected this 5 case would arise from the investigation of the death of 6 Marion Ross. The officers correctly concentrated their 7 efforts on finding the murderer and not especially on 8 the actions of their colleagues, in particular Shirley 9 Cardwell. 10 "To this extent, the evidence given by the police 11 witnesses in connection with the events of 8th and 12 14th January 1997 will inevitably be of the standard 13 provided by civilian witnesses in similar circumstances. 14 It cannot be of the usual standard expected of police 15 officers. The deficiencies in the standard of evidence 16 should not have any material bearing on the proof of the 17 case." 18 That was the view of the person presenting the case 19 to you? 20 A. Yes. 21 Q. Was that essentially a view you formed yourself once you 22 had an opportunity to prepare the case? 23 A. Actually, to be honest, some of the content of that 24 statement I would have treated with a pinch of salt from 25 the very beginning. page 150 1 The difference between the evidence of police 2 witnesses and civilians in general terms is the police 3 officers very often make near contemporaneous notes 4 because that's what they're trained to do in normal 5 circumstances, whereas civilians tend to be relying on 6 memory or early statements but, to be perfectly honest, 7 I didn't attach any great significance to those views. 8 I would simply look at what evidence was available to me 9 and I didn't draw any significant difference between the 10 standard of evidence in this and any other case. You 11 have to evaluate what's in front of you. 12 Q. Would it be fair to say that you agreed that the quality 13 of the evidence available about timings, in particular 14 between these two dates, was not perhaps as much as you 15 would like? 16 A. I'm sorry, between which two dates? I don't follow. 17 Q. Between 8th and 14th January 1997? 18 A. I'm sorry, I see what you mean, yes. 19 The aspect of the evidence which gave me most 20 concern in terms of its quality was actually the log 21 keeping as time went on because that was an ideal or the 22 system that had been laid down by the Senior 23 Investigating Officer was an ideal that was 24 substantially departed from on various occasions. That 25 was the primary difficulty but as far as the rest of it page 151 1 was concerned -- there was also the additional 2 difficulty in that when one is dealing with a trial 3 relating to fairly recent events, particularly a custody 4 trial, one would expect officers and others to have a 5 reasonable recall. By the time you get to a perjury 6 situation you are a considerable time down the line from 7 the original events and, as is indicated here, the 8 emphasis is different. So things like Mr Kerr's 9 recollection of when it was he saw Ms McKie in the 10 canteen and so on were never likely to be terribly 11 accurate because of the passage of time and so on but 12 one was alert to those. Those were my main concerns 13 but, as I say, I had my own views about these matters 14 based on what I had in front of me. 15 Q. It was really Mr Kerr's evidence that I was thinking 16 of -- 17 A. Yes. 18 Q. -- as you would imagine. You said Mr Kerr's evidence 19 was -- his recollection was not as accurate as it might 20 have been because of the passage of time? 21 A. Yes. 22 Q. And that was the position effectively throughout the 23 preparation and the presentation of the trial? 24 A. Yes. 25 Q. I think we can understand how there may have been an page 152 1 assumption from the fact that the log recorded Mr Kerr 2 leaving at 1.15, that if he says he saw Detective 3 Cardwell while he was there, it was before 1.15? 4 A. Yes. 5 Q. And I can appreciate why you would want that to be 6 checked and it was important that you did. 7 A. Yes. 8 Q. And I suppose it is possible, is it not, that the same 9 misapprehension may have carried through that checking 10 process? 11 A. I don't know exactly what went wrong because my 12 instruction was that someone was to speak to him again 13 with the log, my junior's copy of the log. 14 It appeared to me that, from recollection, the log 15 seemed to record a fairly accurate sequence of arrivals 16 and departures by him in the previous two days. He was 17 one of the officers in charge of seizing and relaying 18 productions to the lab. They were being laid out as the 19 Scenes of Crime Officers were identifying them in a room 20 at the back of the house and were being uplifted and -- 21 so he would have been in and out. It seemed to me his 22 arrivals and departures appear to be been recorded 23 fairly regularly and the impression the log gave was he 24 basically had finished as far as the house was concerned 25 at lunchtime on Saturday and had not been back and I was page 153 1 really looking for confirmation as to what time it was 2 prior to that but certainly my understanding of the 3 response I got was that it had been on the Saturday 4 morning. 5 Q. I suppose it might have been that what whoever it was 6 that went to check that established was that Mr Kerr 7 said, "If the log says I left at 1.15, I left at 1.15"? 8 A. I can't comment on that other than the fact that was the 9 whole purpose of the exercise, yes, and that's why I 10 thought that I'd got an accurate response, which turned 11 out to be erroneous. 12 Q. I take it you are not saying Mr Kerr had expressly, as 13 far as you are aware, told the person checking that he 14 knew he had been there before 1.15? 15 A. Well, he had been there before 1.15. That wasn't in -- 16 the question was his return on the Saturday afternoon. 17 He gave a very detailed and extremely plausible 18 situation as to how all that had come about, which I was 19 hearing for the first time in his evidence and that was 20 the annoying aspect of it because I'd asked for it to be 21 checked and I got back what turned out to be an 22 ambiguous response that was not accurate. 23 Q. During the trial he gave evidence he had been there in 24 the afternoon? 25 A. Oh yes. He was in and out the place several times and page 154 1 he gave a very specific explanation in relation to 2 they'd run out of production bags and he was scrounging 3 shoe boxes from a shoe shop in Kilmarnock and using them 4 to transport door handles back to the station and he 5 said logging officers had got fed up with noting it 6 because he was in and out so often. 7 Q. I think he gave very similar evidence to the Inquiry 8 here. 9 A. Yes. 10 Q. Was he uncertain at the trial as to precisely when he 11 might have seen Detective Cardwell? 12 A. Yes, in terms of exact hours and minutes but he put it 13 at approximately the time when he knew she was 14 legitimately there to collect the log and so, 15 effectively, seemed to be confirming he'd seen her at 16 that time. I can't remember precisely what he did say 17 about timings but it was so much in frame that it tied 18 in with the surrounding evidence about that. 19 Q. Because one potential discrepancy that arises in the 20 evidence is, I think, in your statement to the 21 Inquiry and here you say that his evidence at the trial 22 was that he had seen her there at 5.00. 23 A. That's my recollection. If you have his evidence in 24 transcript and he said 4.00 or 5.30, that would be 25 right. That was my sort of guesstimate of my page 155 1 recollection of what he'd said but that might not be 2 accurate. What I am clear about is it did coincide with 3 the evidence that suggested that that had the time when 4 she'd been there to switch the logs over or to take the 5 log away for photocopying. 6 Q. What he said in the Inquiry here was really he didn't 7 remember the particular time, some time in the 8 afternoon, he couldn't be specific about the time and he 9 rather doubted that he could have suggested any 10 particular time, hour of the day? 11 A. Do you not have a transcript of his evidence? 12 Unfortunately, I would have been asking questions at the 13 time so it's not something I would have noted. 14 Q. I don't have a transcript of his evidence in the trial, 15 in the McKie trial. There is a note by a police officer 16 who was watching the trial which I can refer you to, 17 although of course not a document you are familiar with 18 or has particular authority. But perhaps if I can say 19 this: his evidence in this Inquiry was that he didn't 20 recall giving you a specific time although he would 21 probably have agreed to any particular time that might 22 have been put to him. 23 A. I don't think I would have specifically put a time to 24 him because I was apprehensive -- he didn't know when it 25 was other than the fact he thought it was before 1.15 page 156 1 but what I would say is, quite clearly, our initial 2 impression or our anticipation as to what -- our 3 expectation as to what his evidence would be was 4 completely different from what it actually was and 5.00 5 is my broad recollection but if I could put it this way, 6 his evidence was so consistent with the time when she 7 was there with DS Shields to change the log that we 8 regarded that matter as ended from that point on and it 9 wasn't evidence of any independent sighting on another 10 occasion, if I can put it that way. Whatever was said 11 about timing was so approximate to that sequence of 12 events that that was no longer an decisive part of the 13 Crown case in terms of what ... as a sighting at any 14 other time. 15 Q. I don't have a transcript of his evidence in the McKie 16 trial but is it possible that the time of her attendance 17 might have emerged in the course of his evidence anyway 18 so, in effect, might that have been put to him, he might 19 be aware she arrived at a certain point and saying, "If 20 she was there at that point then I saw her"? 21 A. My recollection is that the log did not actually record 22 her arriving to take the log away or coming back and 23 returning it. So we would have been basing that on 24 whatever Ms McKie may have said at interview and on the 25 evidence of DS Shields, who was her driver and, in part, page 157 1 on the position of Mark Lees and I mean, I simply can't 2 remember -- it would not be surprising if the timings 3 had been a little different from each other but broadly 4 within the same time period but whether my recollection 5 of 5.00 is accurate or not it was sufficiently 6 approximate with the other evidence to be -- it was 7 pretty apparent to us he seemed to be talking about the 8 same time and that was not what we were expecting him to 9 come out with. So as an issue we regarded that as 10 really dead water from that point as an independent 11 sighting. 12 Q. I presume that as soon as Mr Kerr accepted that he had 13 been there in the afternoon -- 14 A. Yes, once he accepted that, it became pretty obvious 15 that things were not as we thought they were, yes. And 16 whatever timing he gave or what he said about that, as I 17 say, tallied sufficient for it to be pretty much a dead 18 letter and the issue then became as to whether, if 19 Officer McKie had been in another time, if it had been 20 some other time or whether she had actually been in 21 during that visit at some point but that seemed a little 22 difficult in the sense that -- although that was I think 23 part of the Crown presentation ultimately because, of 24 course, Detective Sergeant Shields was sitting outside 25 and any opportunity would have been remarkably short. page 158 1 Q. Again, just on the same point, as I've said, Mr Kerr's 2 evidence to this Inquiry was that he was never at any 3 stage able to name a time at which he saw her. However, 4 clearly, in examination the point can be tested in this 5 Inquiry and perhaps in the trial it might be tested by 6 what he was doing, what he was listening to on the 7 radio, there was a football match perhaps starting, it 8 is possible to speculate about times that way and I 9 think that's what did happen in this particular inquiry. 10 I just wonder, if he says he was never able to 11 identify a specific time is that perhaps consistent -- 12 A. That could well be right. He might have said something 13 like teatime and I've had that in my head as 5.00 by the 14 time I've come to give this statement 10 years on. But 15 that could be right; I just can't be sure. But what I 16 am certain of is its proximity to the other events was 17 such that it became obvious he was likely to be talking 18 about the same visit. 19 MR MACPHERSON: No further questions. 20 THE CHAIRMAN: Mr Holmes, do you have any application? 21 MR HOLMES: Yes, sir. There are three matters I would like 22 to cover briefly. Firstly, there is the procedure in 23 1999 at a time when Ms McKie's trial took place. 24 THE CHAIRMAN: The procedure? 25 MR HOLMES: The High Court procedure. page 159 1 THE CHAIRMAN: Oh, yes. 2 MR HOLMES: Secondly, there was the time of Mr Swann's 3 discovery and, thirdly, there is the meeting that took 4 place between SCRO and Crown Office after the trial. 5 THE CHAIRMAN: Yes, you can ask about all three. 6 MR HOLMES: Thank you, sir. 7 Cross-examined by MR HOLMES 8 Q. Sheriff, if I can just ask, you have explained a little 9 bit about the procedure for High Court trials at the 10 time, they were organised into sittings of two weeks and 11 I think you said there were somewhere between six and 12 eight cases in each two-week sitting? 13 A. It varied enormously depending on the size of the cases 14 but something of that order, usually, yes. 15 Q. Can you explain, you wouldn't bring all the witnesses in 16 for all six or eight trials on any given day, would you? 17 A. Goodness, no. The procedure was this: having received 18 the papers, the Advocate Depute would determine the 19 sequence or running order of the trials within the 20 sitting and on the first day of the trial you would 21 bring in whatever witnesses you thought would be 22 required for day 1 of the first trial. 23 You would also instruct that perhaps the first three 24 or four witnesses for the second trial should be brought 25 in and that was known as the back-up, so that if for any page 160 1 reason the first trial could not start you could empanel 2 a jury and start the second trial and go back to the 3 first one later. 4 The third occasion -- the third reason which you 5 would bring witnesses in, if you had, from looking at 6 the papers, a suspicion that some witnesses might be 7 rather reluctant to turn up you might give an 8 instruction that civilian witnesses for a certain case 9 were to be brought in for what was called witness check 10 purposes, to see if somebody you thought might be 11 reluctant had actually shown up or not in answer to the 12 citation, in which case you could take certain 13 procedures if they hadn't turned up at the start of the 14 sitting. But broadly speaking, you would bring in day 15 1's witnesses for the first case and a couple from the 16 back-up case. 17 Q. So on any given due on which you were due to start the 18 trial you would have witnesses available for two trials. 19 A. I'm sorry, I didn't catch that. 20 Q. On any given day when you were true to start the trial 21 you would have witnesses available for two trials so 22 that if the first trial had to be adjourned there was no 23 loss of court time. 24 A. Usually -- that didn't always happen -- but usually that 25 was the idea in those days, yes. page 161 1 Q. You have explained also that your papers would be sent 2 to you by round about ten days in advance of the 3 sitting? 4 A. The standard was for them to arrive ten days. I've 5 obviously had these a little earlier because of the 6 meeting with SCRO on the 30th. 7 Q. That's what I was about to ask. There were advance 8 notice cases and you said this was one of them? 9 A. Yes. 10 Q. Are you able to say why this was an advance notice case? 11 A. Yes, it was pretty unusual because, first of all, a 12 police officer was being prosecuted; secondly, it was 13 perjury, which is unusual, and that involves, quite 14 often, extra preparation time because you would have to 15 look at the transcripts of the original trial in part 16 and so on and so it wasn't what one might call a run of 17 the mill case. So one would expect that to be flagged 18 up to the Deputy in advance. 19 I can't be sure about this but it is possible also 20 that, having been told I was to do it, I asked for the 21 papers early. I don't know and I'm not claiming that I 22 did but from time to time one could ask for papers early 23 if, for example, you wanted to do something like have a 24 meeting with the SCRO. But I suspect in this case it 25 was the other way about, that the papers were given to page 162 1 me in advance and I was given some extra notice but I 2 can't say when I'm afraid. Other than that, I must have 3 had them before, in advance of the SCRO meeting on the 4 30th. 5 Q. It is clear from the parts of the precognition that we 6 have looked at already that this would be regarded as a 7 trial of some importance? 8 A. Yes. 9 Q. The consequences to fingerprint evidence were realised 10 at an early stage? 11 A. Yes, absolutely. 12 Q. Is it also fair to say that on occasions where there 13 have been trials that are of particular importance that 14 perhaps the trial itself will be assigned a separate 15 sitting? 16 A. That would really only happen, not so much on the 17 importance but on the volume. If a case had something 18 like 250 witnesses it might well be assigned a separate 19 sitting. 20 What would tend to happen in a trial of particular 21 importance is that it would be -- the papers would be 22 sent to the Deputy at an earlier stage than normal but 23 special sittings would only be for cases with an 24 extraordinarily large volume of witnesses. 25 Q. Has it been known for trials of particular importance to page 163 1 be conducted by a Law Officer? 2 A. Oh, yes. That's probably much less common now than it 3 was in days gone by but, oh yes, that was certainly the 4 case at one time. 5 Q. When you refer to "days gone by" would that include the 6 period we're talking about? 7 A. (Pause). I can't remember how many cases. Certainly, I 8 do remember the Lord Hardy, who was Lord Advocate at 9 this time, always did one or two sittings a year, which 10 is not current practice. I cannot remember if when 11 Colin Boyd was the General he followed the same practice 12 but I certainly remember Lord Hardy did that. But, yes, 13 particular cases but really more in the Appeal Court 14 than at trial level would be specifically conducted by 15 an officer, yes. That was certainly the case at this 16 time that officers dealt with certain appellate matters. 17 Q. It is not something that to your recollection was 18 considered in this case? 19 A. If it was, I wasn't aware of that and I don't think it 20 was. 21 Q. Do you have a copy of your statement in front of you? 22 A. Yes, I do. 23 Q. In paragraph 2 of your statement I think you say that 24 Crown Office encouraged you to begin in the trial? 25 A. I'm sorry? Yes. page 164 1 Q. It's towards the end of paragraph 2. It says: 2 "I also remember being encouraged by Crown Office to 3 start the trial in the sitting of April 1999." 4 A. Yes. 5 Q. Can you say who it was at Crown Office that encouraged 6 you to do so? 7 A. I think in fact it was specifically relayed to me by 8 Iain Bradley as the Sitting Manager having come from 9 Crown Office. So remember that once the sitting had 10 started I would have been conducting trials. I think 11 basically the message was relayed to me by him but I 12 can't remember what the original source was. But, 13 again, I mean, I do accept this is not absolute. If I 14 had decided that I wanted to adjourn and do something 15 else that was my decision. That would have been my 16 decision. But, yes, I do remember quite commonly if 17 something had gone off before we would be encouraged to 18 conduct it in the second or subsequent sitting. 19 Q. Absolutely. As you said earlier on, except in certain 20 circumstances where you are looking at taking a plea in 21 a murder or rape, the decision would be for the Depute 22 at court whether to begin a court or whether to -- 23 A. No, pleas to a lesser charge in murder and rape had to 24 be referred to an officer but once the trial had started 25 it was the responsibility of the Depute conducting the page 165 1 trial whether to accept any plea that was offered in a 2 trial. 3 Q. But I understood from what you said earlier that, except 4 in those circumstances, any decision as to the conduct 5 of the case ultimately rested with the Depute at court? 6 A. Yes, absolutely that is the correct. That's why I say 7 that although I'd made that remark, ultimately it was my 8 decision and my shout to go ahead in that sitting and 9 that that was my responsibility. 10 Q. Are you able to say how it was that you were encouraged 11 to begin the trial? 12 A. It would simply have been something along the lines of 13 Iain saying to me that, "We really want to get this 14 started" or, you know, the Crown Office or Home Depute 15 or DC, somebody is anxious to get it started because 16 it's gone off before -- something of that. I don't mean 17 to make too much of it. It was something along those 18 lines was presented to me but I can't remember precisely 19 the language in which it was couched. 20 Q. Do you recall having any impression at the time as to 21 why? 22 A. Yes, my impression was that because it had been 23 adjourned from a previous sitting and also the Crown, as 24 much as the defence, were anxious to get a result on 25 this matter one way or the other. page 166 1 Q. At the time was it common for cases to be adjourned more 2 than once? 3 A. I'm sorry ...? 4 Q. Was it common for cases to be adjourned more than once? 5 A. I can't hear what you're saying after the word 6 "adjourned". 7 Q. Was it common for cases in 1999 to be adjourned more 8 than once? 9 A. Common ... how do you define "common"? It was not 10 unknown, it happened more often than we wanted it to, 11 yes. 12 Q. Prior to the reforms -- 13 A. Yes, absolutely -- 14 Q. -- it was much easier to obtain an adjournment if you 15 wanted to? 16 A. Yes, that's completely right. 17 Q. I will move on to when you first discovered the 18 involvement of Peter Swann, if I can. At paragraph 9 of 19 your statement you say that you have no note of any 20 meeting with officers of SCRO during the trial. 21 A. Yes. 22 Q. So any meeting that you had would have referred to the 23 one on 30th March or to the one that you have described 24 immediately prior to the trial? 25 A. Yes. Now, it is possible once we were into the defence page 167 1 case that either information was being passed on to me 2 or they were speaking to the Fiscal. It's possible that 3 one of them asked to speak to me, you know, in the midst 4 of, for example, Mr Findlay's examination-in-chief of 5 Mr Wertheim to raise some point they thought was 6 important, but I have no note of that and no 7 recollection of it other than I have some notes that 8 were obviously passed on to me by one of the SCRO 9 officers in the course of the trial, but after the 10 evidence in the course of the defence case, I think. 11 Q. Whether they did or did not speak to you earlier on or 12 during the trial, you record at paragraph 28 that you 13 did not know of Peter Swann's involvement prior to the 14 trial. 15 A. Yes. As I mentioned earlier, my recollection was that 16 SCRO had said to me that they's heard, you know, 17 effectively gossip or chat amongst fingerprint people 18 that the defence had been to somebody, but I didn't know 19 who it was. 20 Q. If the statement in paragraph 28 is correct, you did not 21 know prior to the trial, what I'm asking is that it 22 cannot have been at either the meeting at the end of 23 March or the meeting after receiving Mr Wertheim's 24 productions that you learned of Mr Swann's involvement; 25 would that be right? page 168 1 A. I think that that's right or if they had mentioned his 2 name it would have been in terms that were so vague that 3 it's not something I could rely on and I'm pretty 4 certain, first of all, that they did tell me they were 5 aware the defence had spoken to somebody and I'm pretty 6 certain also that I'd asked them to let me and the 7 Fiscal know when they had chapter and verse on that but 8 also I'm pretty certain that they didn't at that stage. 9 Q. Whilst it is clear from your evidence that it hadn't 10 been intimated to you, clearly someone must have known 11 that Peter Swann had been involved because he would have 12 needed access to the productions in order to carry out 13 an examination of the photographs, would he not? 14 A. I can't answer that because it depended on materials had 15 been disclosed to the defence at that stage they could 16 have given to him. So I just don't know. It depends on 17 what exercise he'd carried out. 18 Q. If he had examined materials that had been produced, if 19 he had examined the productions, then he would have had 20 to obtain permission from the Fiscal at the High Court 21 in Glasgow to have a look at those, would he not? 22 A. If he had gone to look at the actual mark the answer to 23 that is yes, but remember the defence were provided with 24 copies of productions for the previous trial diet and I 25 don't know what materials had been provided there. page 169 1 Bear in mind also that the ones that the jury get 2 are kind of copies of the ones that we've got and our 3 copies are often sometimes a little bit better. So I 4 just don't know. But certainly -- I do agree -- if he'd 5 wanted to carry out the sort of exercise that Pat 6 Wertheim eventually carried out, he certainly would have 7 required permission of access to the materials. 8 Q. At paragraph 28 you also say that you did not know the 9 identity of the expert. You did not know that the 10 expert was Peter Swann before the start of the trial. 11 Were you aware before the start of the trial that an 12 expert had confirmed SCRO's findings? 13 A. That was my understanding because that was what I 14 understood the SCRO officers to be telling me; that they 15 knew that somebody had looked at it and confirmed their 16 position. 17 Q. In fairness to the defence, that's a perfectly 18 legitimate practice for them to indulge in? 19 A. Yes, of course. 20 Q. Shop around for experts as much as they want. 21 A. It goes a little bit further than that because my 22 recollection is prior to -- and, again, I can't remember 23 the name -- but there was an abuse case in Derek Hogg 24 was involved when the defence got an expert in and the 25 Crown in fact sought to obtain copies of the defence page 170 1 expert's report because the defence decided not to use 2 him. 3 Prior to that point -- and the court eventually, I 4 think allowed that -- but prior to that point, it was a 5 bit of a gray area as far as we were concerned in terms 6 of the propriety of the Crown seeking access to a 7 defence report. But there's nothing wrong with the 8 defence seeking a report. Of course not. 9 Q. Was there any point at which you suspected at the start 10 of the trial that is what had happened? 11 A. I'm sorry, that what had happened? 12 Q. That the defence had previously been to another expert 13 and hadn't liked what they had been told so were now 14 instructing Mr Wertheim? 15 A. It's a little bit different from that because at some 16 stage -- and I can't remember when this is but I suspect 17 it was round about shortly after the trial had 18 started -- I was told informally by someone on the 19 defence team how they'd come to come across Pat 20 Wertheim, that initially they'd gone to speak to him on 21 the subject of plant because he was giving a lecture or 22 a seminar of than subject, I think in Liverpool, and he 23 had been asked to look at it. Having coming up to look 24 at it with the plant idea in mind, he then said, "This 25 isn't her print. It's not a match" and that's what led page 171 1 to it all. 2 But, again, there's nothing illegitimate in any of 3 that. It's a perfectly valid exercise for the defence 4 to carry out at all levels. 5 Q. Absolutely. It wouldn't have been revealed to you at 6 that stage, though, that Mr Swann had been involved 7 because you didn't know prior to the start of the trial 8 about Mr Swann? 9 A. I can't be sure in this instance. My understanding was 10 that somebody had looked at it for the defence and that 11 SCRO's understanding was that person had confirmed their 12 finding. I don't think I knew who that person was. If 13 Mr Swann's name had been mentioned, it had not been 14 mentioned in terms that were firm enough for it to be 15 something that I felt I could rely on at that stage, if 16 I can put it that way. Bear in mind at this stage this 17 is gossip or, you know, hearsay. 18 Q. Indeed, although from the fact that the defence 19 productions were coming to you now fairly late in the 20 day, and from the fact the defence expert was not one 21 who was commonly in use here, did you have any suspicion 22 that perhaps other experts had been exhausted before 23 Mr Wertheim was instructed? 24 A. I'm not sure if I really gave it that much thought or 25 attention. I was aware, as I mentioned, that there had page 172 1 been cases of mis-identification and challenge in the 2 United States and it may have been a logical place to go 3 if that's what he wanted to do, but I can't recall how 4 much I thought any of that through at the time. But it 5 didn't unduly actually surprise me. 6 Q. Had you been aware that Mr Swann had been instructed 7 prior to the experts who eventually appeared and that he 8 would confirm SCRO's findings, it would have 9 considerably strengthened the Crown case, would it not? 10 A. Yes, subject to the remark I made a little earlier that 11 at this stage we weren't sure of the propriety of 12 seeking out a defence expert the defence had elected not 13 to use. The matter is now settled but hadn't been 14 argued at that point is my recollection -- 15 Q. Your evidence -- 16 A. But put it this way: it might have strengthened the 17 Crown case but of course the American evidence would 18 still have been the same. 19 Q. Yes, agreed. 20 In any event, you may have been aware that an 21 expert had previously been instructed but you had no way 22 at that stage of verifying? 23 A. That's pretty much what it was. We were fairly sure 24 that had been done. I mean, it's the sensible thing for 25 the defence to do; so we were fairly sure that it had page 173 1 been done but we didn't know who it was I think was 2 broadly speaking, the position. 3 Q. Would a cautious approach not have been to adjourn the 4 case in order to allow the Procurator Fiscal to 5 investigate who this defence expert was? 6 A. I don't know what you mean by a cautious approach. By 7 that time we had the SCRO position and we had the 8 American position and I thought I had the eye witness 9 placing Ms McKie inside the hall or, you know, coming 10 into the place at a time she shouldn't have been there. 11 So yes, that's a possibility but it wouldn't have -- 12 it wouldn't have completely changed the landscape. 13 THE CHAIRMAN: You didn't know if Ms McKie was going to say 14 whether there had been another expert or not. I mean, 15 it might well have come out in cross-examination. 16 A. Yes. She might very well have said, "Yes, we had three 17 people; it was so and so and so and so" or five people 18 or something. But that would not have made any 19 difference to the presentation of the case because -- 20 THE CHAIRMAN: Yes, but it's an element of hindsight that 21 she declined to say that there was any other expert and, 22 therefore, it didn't come out exactly who that was. 23 A. Yes, that is right and I didn't have -- I'm pretty 24 certainly I didn't have the material to challenge that 25 statement or I would have done so at that point. page 174 1 THE CHAIRMAN: Which you would have done had you known -- 2 A. That's what makes me think I must have got the details 3 later, yes. 4 THE CHAIRMAN: I think, Mr Holmes, we have explored this 5 topic fairly closely. Thank you. 6 MR HOLMES: Indeed, sir. I am quite happy to move on to the 7 final topic which is the meeting on 21st May 1999. 8 A. Yes, this is the one with Frank Crowe as DCA and that 9 took place at the SCRO offices? 10 Q. That's correct. In fact, I think the minutes are 11 available. They are document CO0034. 12 Can I ask: was it common to debrief with Crown 13 witnesses in this way after a trial? 14 A. Not with all Crown witnesses but it was in certain 15 categories of case. I always did it in cases 16 involving SCDA or SDEA and then SCDDA officers, as it 17 became, always had a debrief on what had happened at the 18 trial. Here this was an exceptional case because of the 19 fingerprint issue and basically the outcry or fall-out 20 it from the case. This was exceptional. 21 Q. That probably answers my next question which is: there 22 was a good reason for having a debrief in this case 23 because -- 24 A. Oh yes. All I'm saying is it's not unique to this case. 25 I had debriefs in other cases but this particular one page 175 1 arose directly because of the public profile of the case 2 and the concerns about identifications thereafter. 3 Q. Certainly the indication from the precognition is that 4 there have been concerns about the impact of fingerprint 5 evidence in general prior to the case. Were there still 6 those concerns in place after the case? 7 A. Well, I think it was considerably amplified after the 8 case. 9 Q. If we look at page 5, please, Mr Crowe expresses an 10 opinion on page 5. It is the paragraph immediately 11 after the bullet points where he says that the long-term 12 credibility of the SCRO witnesses or he notes the 13 long-term credibility of the SCRO witnesses: 14 "Mr Bell, who was there, added that the SCRO require 15 policy direction for those going to court and stressed 16 that the integrity of the SCRO experts and that the 17 fingerprint system was sound." 18 A. Yes. 19 Q. So the people who were present at that meeting are, even 20 after the trial, still expressing faith in those who 21 were involved? 22 A. Yes, broadly speaking, yes. At that point, we were 23 still -- it was being regarded in general terms as what 24 we might call a one-off. 25 Q. There is one part of this I should give you the page 176 1 opportunity to comment upon which is that it is noted in 2 here that you had some contact with Mr Swann. 3 A. Yes. 4 Q. I think you said earlier on that that's not correct. 5 A. I think I covered that in my statement. That did not 6 ever actually happen. 7 My role there basically was to give some explanation 8 or guidance to the SCRO people of my impression of the 9 case as the Advocate Depute. The policy issues were 10 really why the DCA was there because that was his remit 11 and it was reported that I'd had some sort of contact 12 directly with Mr Swann. That's not correct. I think 13 what I may have said is or what I must have said is that 14 the Crown had contact with Mr Swann. But that's not 15 something I am responsible for personally. It would be 16 done by the Procurator Fiscal. 17 Q. Do you know anything about any contact that the Crown 18 might have had with Mr Swann? 19 A. I'm sorry, I didn't catch the beginning of that. 20 Q. Do you know anything about any contact that the Crown 21 may have had with Mr Swann. 22 A. I was asked about that at the point when my statement 23 was being taken and some things were put to me about him 24 saying that someone had phoned up and made yes or no 25 answers and, I have to say, I've got no recollection of page 177 1 that. I must have known by the time of this meeting 2 that someone had spoken to him, but it certainly was not 3 me personally and would not have been me personally 4 because, once this trial was over, I moved on to the 5 next sitting, as it were, and would not have been 6 attempting to contact him at that stage. 7 So I must have been told in order to have said that 8 at the meeting but, I mean, I must have said that the 9 Crown had subsequently had contact with him but that's 10 something simply I'd have been briefed on probably 11 before this meeting, possibly even by Frank Crowe 12 himself. I can't recall. 13 Q. I think you were asked at this meetings, according to 14 the minutes anyway, by one of the officers who was 15 present whether fingerprint evidence lost the case and 16 you expressed the view at the time it did not? 17 A. I think what -- yes, that was Ms McBride, as I recall, 18 and I think what I said was that it wasn't fingerprint 19 evidence alone because of course the other eye witness 20 evidence that I thought I had evaporated mid-trial. 21 Q. Does that remain your view today? 22 A. Pardon? 23 Q. Is that still your view? 24 A. Yes, it's a combination of the two things, yes. 25 MR HOLMES: Thank you. page 178 1 THE CHAIRMAN: Thank you very much. Miss Grahame? 2 MISS GRAHAME: There are six points I would like to clarify 3 and raise with Sheriff Murphy: The first regarding his 4 awareness of the defence on 30th March when he met with 5 the SCRO officers; secondly, in relation to the evidence 6 he had from Mr Kerr in terms of the statements and 7 precognition; one very small point regarding procedure 8 that's arisen relating to fixing of trials and the 9 changes that were made; fourthly, in relation to Mr Kent 10 regarding the timing and outcome of the meeting and 11 asking him to clarify one answer which he gave in 12 examination-in-chief; fifthly, potential evidence from 13 the indictment in the case I would like to put to 14 Sheriff Murphy for his comment; and, finally, in 15 relation to Mr Swann and a relationship with the McNamee 16 case. That was also brought out in 17 examination-in-chief. 18 THE CHAIRMAN: Very good. 19 Cross-examined by MISS GRAHAME 20 Q. Thank you. 21 Sheriff Murphy, the first issue I'd like to cover 22 with you is your awareness of the defence position and 23 at the time that you met with SCRO originally on 24 30th March 1999. 25 You said in your evidence earlier today that you page 179 1 thought you knew about the defence 2 being mis-identification of Y7 and I'd like you to 3 comment on one or two things. I will show you those if 4 I may. 5 If we hear evidence later that the first time the 6 issue of mis-identification of Y7 arose was when 7 Mr Wertheim took photographs of the prints and then 8 looked at those and then came to a conclusion on that 9 regarding mis-identification, and if we take it that he 10 took those photographs on 30th March 1999, and in that 11 regard you recall looking at a document earlier today 12 which appeared to be his handwritten notes, would it not 13 appear to be the case that you did not know on 14 30th March what Mr Wertheim's conclusions would be 15 regarding mis-identification and, in particular, you 16 didn't know that mis-identification of Y7 was an issue 17 that would be raised at the trial? 18 A. I can't recall precisely but my understanding is the 19 trial had been adjourned in order for the defence to 20 produce reports from the American experts. I did not 21 know, obviously, the detailed content of those reports 22 but we certainly knew that they were challenging the 23 SCRO identification because that was the whole purpose, 24 as I understood it, of waiting for these reports. 25 Whether I knew it was mis-identification, I'm not page 180 1 sure that I'm applying that notion retrospectively now 2 but I certainly think that I did. I could stand to be 3 corrected but Mr Wertheim was originally, as I 4 understood it, consulted in relation to whether or not 5 it could have been planted and, as a result of his 6 enquiries into that, decided that it had been a 7 mismatch. Now, whether the day he came to photograph Y7 8 in Glasgow on 30th was the beginning of that or if he'd 9 reached that conclusion at an earlier stage and was, you 10 know, gathering materials, I couldn't say. 11 Certainly I was aware, as I say, that we hadn't 12 started last time because we were awaiting reports from 13 the Americans. That was assumed to be some sort 14 of challenge or was known to be some sort of challenge 15 to SCRO. But I certainly think that we must have known 16 it was a mismatch but we didn't know what the grounds 17 were for saying that. But I accept I could be wrong 18 about that looking at it now. But, insofar as I can 19 recall, I think we knew some sort of challenge and 20 presumably a mismatch was what it was. 21 Q. So does your answer depend on whether the first date 22 that Mr Wertheim looked at the productions and at some 23 point thereafter came to a conclusion was 30th March or 24 not? 25 A. Well, all I'm saying is that I could be wrong about page 181 1 that. My impression was that we knew that there was a 2 challenge on the basis of mismatch but whether that's me 3 adding that at an earlier stage than we actually were 4 aware of that, I don't know. 5 But the way that that could be determined one way 6 and another is if you knew that Mr Wertheim had reached 7 that conclusion before when he came to examine the 8 materials in that way or not, that would give a 9 different answer because if he hadn't reached that 10 conclusion by that time I must be wrong and I accept 11 that. 12 Q. Can I also ask you about your statement to the Mackay 13 Inquiry? 14 A. Is this the 2000 one? 15 Q. Yes, CO2036 and it is paragraph 2 and 3 on page 2. 16 Would you just take a moment to read paragraphs 2 and 3, 17 please. 18 A. (Pause) Yes, thank you. 19 Q. Was that the information that you provided to the Mackay 20 Inquiry? 21 A. It obviously must be. I don't remember the date at this 22 remove of 16th April for the meeting, but that certainly 23 looks correct. 24 Q. That would be the Friday prior to the start of the trial 25 against Ms McKie? page 182 1 A. Was that 16th April? 2 Q. The Friday 16th was 16th April. 3 A. Right. 4 Q. And the trial started on 21st April which was a 5 Wednesday, the following Wednesday. 6 A. Right. Well, my recollection in 2000 would be much more 7 accurate now in terms of dates; so I'll accept that as 8 correct. 9 Q. So based on what's written here, some time round Friday, 10 16th April 1999 you had a meeting with Donald Findlay 11 and he outlined at this time what the defence's angle 12 was to be as regards fingerprint evidence and that this 13 was to be on a mismatch, as you referred it? 14 A. Yes. 15 Q. Moving on, can I ask you to look again at Charles 16 Stewart's statement, FI0036.055, page 55 of the PDF, 17 paragraph 264. Again, just take a moment to reread 18 that. You have already looked at it today. 19 A. (Pause) Yes. 20 Q. This is a reference to the second meeting which you have 21 given evidence on already. 22 A. Yes, that's right. 23 Q. Do you see in line 4 he says: 24 "It was at this point I became aware that the 25 defence was going to be based on mis-identification as page 183 1 opposed to wrongful making of the mark." 2 A. Yes. 3 Q. Do you have any comment to make on that? 4 A. Well, that's consistent with the date that you've just 5 shown me on the 2000 and leads me to wonder if my 6 assumption about the earlier meeting on 30th is actually 7 inaccurate. In which case it looks rather as if I 8 simply went along on SCRO on that date to go over their 9 position and confirm what they were going to be saying. 10 Q. When you say that, you mean on 30th March you went to go 11 over the position? 12 A. The first meeting that I had with the SCRO officers 13 predates the information you've just given me about the 14 meeting with Mr Findlay and, if that's right, while 15 anything I may have known about misdirection or so would 16 not have been in any detail even if I have knew that. 17 So it may be, to come back to what you we're asking a 18 few minutes earlier, that I am wrong about that and I 19 didn't know it was mis-identification at the time when I 20 first met the SCRO officers, which means that I've just 21 basically gone up to see the experts, as would be my 22 normal practice prior to a trial where expert evidence 23 was likely to be significant. 24 Q. And it was in the second meeting of SCRO that you raised 25 the question of mis-identification, by which time you page 184 1 had notification of the defence position on that? 2 A. Putting those together, there would appear to a 3 consistency on that which is perhaps more accurate than 4 my earlier recollection. I accept that. 5 We did know that we were waiting on reports from 6 American experts by the time of the first meeting on 7 30th but, putting this all of this together, there is I 8 say a consistency about that which I would accept is 9 better than my off-the-top-of-my- head recollection 10 without that guidance. 11 Q. Moving on to just a small matter I wonder if you could 12 clarify, Sheriff Murphy: we have heard that a trial is 13 or was at that time fixed to a sitting? 14 A. Yes. 15 Q. The McKie trial was fixed to a sitting in April 1999? 16 A. Yes. 17 Q. There had been a previous trial date which had 18 been adjourned on the basis the defence weren't ready? 19 A. Certainly, yes. 20 Q. Could you explain how the procedure in relation to the 21 fixing of trials has changed now insofar as if the 22 defence were not ready and awaiting reports, when the 23 trial would be fixed? 24 A. Well, in terms of the pretrial procedure in the High 25 Court the landscape has changed out of sight since 1999 page 185 1 because trials are no longer assigned to sittings. 2 What happens now is that a petition is served, as it 3 always was; an indictment is served but the indictment 4 does not give notice of a trial diet which is what it 5 did do in 1999. The notice of appearance attached to an 6 indictment in 1999 would give notice to the accused of 7 when the sitting was. It now gives notice of something 8 called a preliminary hearing and the trial diet is fixed 9 at that preliminary hearing once it has been established 10 that all parties are in a position to proceed and there 11 is, in effect, a preparatory checklist which is gone 12 through by both sides prior to the preliminary hearing 13 which is presented to the court in written form so that 14 the judge is aware of the state of preparation. 15 It is possible now for preliminary hearings to be 16 continued and for a trial diet to be fixed at a later 17 stage once everyone's ready, but that's completely 18 different from what we did in 1999. 19 Q. I would like to move on to ask you some questions in 20 relation to Mr Kerr. 21 A. Yes. 22 Q. You have been asked about the information you had been 23 in the precognition in relation to Mr Kerr. 24 A. Yes. 25 Q. I would like you to look for me please at three page 186 1 documents. Could we look, first of all, at CO2594. 2 This is a two-page document and perhaps we could have 3 both pages on the screen. Would you just take a moment 4 please, Sheriff Murphy, to read through those? 5 A. (Pause) Yes, thank you. I've read those two pages. 6 Q. Do you see this is a statement dated 10th April 1997 7 self-dictated by Mr Kerr? 8 A. Yes. 9 Q. He does recall seeing DC Cardwell on Friday 10th or 10 Saturday 11th January 1997 but there's no further detail 11 in that statement regarding when he saw her. 12 A. Yes. Well, with respect, he's talking about seeing her 13 there at the police station not at the locus. 14 Q. Yes. 15 A. Yes. 16 Q. And there's no further information there regarding 17 seeing her at the locus on Saturday at 5.00 or in the 18 afternoon? 19 A. Well, or any other time -- that's correct. 20 Q. Would you look please at CO2593. We see this is a 21 statement 12th July 1997 of James Kerr. I wonder if we 22 could look at pages 4 and 5. If we could have them both 23 on screen and again take just a moment to read through 24 those. 25 A. (Pause) I don't seem to be able to read the bottom page 187 1 part of it here. 2 THE CHAIRMAN: Can you move it up? 3 MISS GRAHAME: Just read what you can, Sheriff Murphy. I'm 4 going to focus on page 5, the first paragraph. 5 THE CHAIRMAN: It's been cut off unfortunately. 6 A. Yes, I've read that. Thank you. 7 MISS GRAHAME: Page 5, the first two paragraphs, Mr Kerr 8 appears to state at this time at some time in the 9 afternoon he was working in the bedroom. 10 A. Yes. 11 Q. He was going to the living room to get some bags and he 12 saw DC Cardwell standing in the porch. 13 A. Yes. 14 Q. Then he goes on to say toward the end of the second 15 paragraph that he glanced at DC Cardwell, he never 16 thought anything about it: 17 "Then I returned to the bedroom to continue my work. 18 I did not see DC Cardwell enter the house and I did not 19 see her in the porch when I came back from collecting 20 the bags." 21 A. Yes. 22 Q. Then he moves on to the next day. 23 A. Yes. 24 Q. So, again, there's no mention of seeing her in the 25 afternoon on the Saturday, 11th January. page 188 1 A. Well, with respect, it's not clear whether this is meant 2 to be 11th January or not. That was part of the 3 difficulty and that's why I had him spoken to because 4 he's given, in fact, three statements and it's not clear 5 from any of them exactly when this was. 6 Q. Do you see page 4 in the second paragraph that it 7 begins: 8 """On Saturday 11th January 1997"? 9 A. Yes, that's right. 10 Q. And then he continues to explain what he had seen that 11 day? 12 A. That's right. So this looks like a Saturday afternoon 13 sighting. 14 Q. And then towards the middle of that page he talks about 15 being off duty on Sunday, 12th January. 16 A. Yes. 17 Q. And then he goes on to further events after that. 18 A. Yes. 19 Q. So it would appear that this was about Saturday, 11th 20 January? 21 A. That's what this is about, yes. 22 Q. There's nothing in here that suggests he saw her at 5.00 23 in the afternoon? 24 A. No, but we had a great difficulty about all of his 25 timings because this is all done without the log and we page 189 1 also had some doubts about his discussion about arrival 2 at Kilmarnock Police Office that day because we thought 3 that might have been Friday rather than Saturday because 4 of the officers he mentions and so on. 5 Q. Can I ask you now to look at a precognition, please, 6 CO2592. We've heard this is a precognition taken by 7 Denise Greaves from James Kerr. 8 A. Right. 9 Q. Would you look, please, at pages 4 and 5. Could we have 10 them both on the screen and, again, just take a moment 11 to read through those, please. 12 A. (Pause) Yes, thank you. 13 Q. Do we see on page 4 at the top that this is what he 14 says, according to Denise Greaves, in relation to 15 Saturday, 11th January 1997? 16 A. Yes, that's right. 17 Q. Turning to page 5, paragraph 1, he's noted by Denise 18 Greaves as saying: 19 "In my opinion, it would have looked to her as if 20 the examination of the hall had been completed. That 21 examination would include the bathroom door. I think 22 Shirley Cardwell was there about 1.30 pm. I left the 23 locus about 3.00 pm-ish because of the backlog of 24 productions. My reason for thinking that was the time 25 was that the production room at Kilmarnock was along page 190 1 from the TV room and I recall that there was a rugby 2 match on during the afternoon. I did not see Shirley 3 Cardwell or speak to her after that." 4 A. Yes. 5 Q. So this would appear to suggest that he saw her at about 6 1.30 in the afternoon on the Saturday but, in any event, 7 he left the locus about 3.00 pm-ish and he did not see 8 her after that? 9 A. Yes. I would make two comments about that. The first 10 is that was inconsistent with the logging entries very 11 obviously and, while his account of being at one end of 12 the hallway and she being at porch is as I recall pretty 13 much consistent with his evidence at the trial, the 14 business about bagging something concerns me because my 15 recollection was that the Saturday was when he was 16 specifically engaged in the task of uplifting the door 17 handles and he talked about that at great length. 18 So there are some inconsistencies in my mind between 19 this precognition and obviously what was said. 20 Q. Can I just ask you one thing about the documents we've 21 looked at. Where were the documents that you had in 22 advance of the trial within the precognition? 23 A. I'm sorry, I didn't catch all of that. 24 Q. Where were the documents that you had in advance of the 25 trial within the precognition? page 191 1 A. I'm pretty certain that they were. I thought I may have 2 had three statements from him but it could have been two 3 statements and a prec. 4 Q. But it's clear his position in evidence changed? 5 A. Actually, the position to my mind was inconsistent 6 across these statements and that's specifically why I 7 wanted him spoken to again. 8 Q. Did you ask the Fiscal to speak to him. 9 A. Well, I asked my junior to ask the Fiscal to speak to 10 him; that's correct -- with the log. That was the whole 11 point: with the log, yes. 12 Q. The response you received, was it from the Fiscal direct 13 to you? 14 A. No, it was relayed by Mark, my junior. 15 Q. Was anything a response which was given to you such that 16 you had concern that his position was different from 17 what you understood it to be? 18 A. I thought he clarified that he had seen her before he'd 19 left at lunchtime on Saturday. That was my 20 understanding. 21 Q. Is it fair to say that, as a result of Mr Kerr's 22 position being different in evidence, that your view of 23 the case changed? 24 A. Yes, I think that's correct. 25 Q. And his evidence was a significant part of the Crown page 192 1 case. 2 A. His evidence -- you see, I wasn't unduly -- well, 3 unduly's not the right word. 4 That made a huge difference to the fingerprint 5 evidence because if the eye witness evidence had been as 6 we thought it was (in other words, that he had seen her 7 at the time when she should not have been there 8 legitimately), the fingerprint evidence became basically 9 corroborative of that and didn't stand alone. So it 10 made a huge difference. 11 Q. Once Mr Kerr's position in evidence was different the 12 fingerprint evidence did stand alone? 13 A. Yes, that's right. That's what happened. 14 Q. A suggestion has been made that it was you who said to 15 Mr Kerr as a closed question that he saw Shirley McKie 16 at 5.00 pm in particular, "Could it have been about 5.00 17 pm", ie the suggestion of the timing of 5.00 pm came 18 from you, rather than Mr Kerr. 19 What comment do you have to make about that? 20 A. If you have a transcript I would accept that but I have 21 some difficulty with that as a general term. I think 22 Donald Findlay would have been straight on his feet if I 23 had been suggesting a specific time to the officer. 24 THE CHAIRMAN: I think if this passage is available in? 25 A. Is it. page 193 1 THE CHAIRMAN: I don't think it is. I think the witness is 2 entitled to know that this isn't available on 3 transcript. 4 MISS GRAHAME: The transcript is not available. This was a 5 suggestion which was put by my learned friend, 6 Miss Carmichael, in re-examination of Mr Kerr. It's not 7 a suggestion which comes from a transcript of Mr Kerr's 8 evidence. 9 A. Right, it's been suggested to me. I mean, I think, did 10 I not suggest a timing of about 5.00 in my statement? 11 But that's basically my best recollection, but I think 12 it would have been quite wrong in the circumstances for 13 me to have asked a closed question. I would be very 14 surprised of that and I think, as I say, that would have 15 been likely to prompt an objection. Unless we got to 16 the stage where it's pretty obvious that he was talking 17 about the same time and I put the timings from someone 18 else about when that had happened but that would be only 19 after it had been become plain as a pike staff he was 20 talking about the time when she had been up to swap the 21 log documents. It would have been wrong to have asked 22 that question in other circumstances. 23 Q. Sorry? 24 A. It would probably have been wrong to ask that sort of 25 question in-chief, at that stage. page 194 1 Q. Thank you. I would like to move on to ask you some 2 questions in relation to Mr Kent. 3 A. Yes. 4 Q. Could we have his report, CO3876, page 4 of the PDF and 5 it's paragraph 33. You've been referred to this 6 earlier. Please take a moment to refresh your memory. 7 (Pause) 8 You gave an answer in examination-in-chief in 9 relation to this paragraph which you didn't finish and 10 I'd like to give you an opportunity to do so if you 11 wish. 12 The evidence you gave in answer was not necessarily 13 quite in relation to your reading of the paragraph 33. 14 I wonder if you could explain what your understanding of 15 that paragraph is. 16 A. It looks to me like he's indicating that he is not a 17 fingerprint comparisons man. He's not a fingerprint 18 expert in terms of the sort of experts who give evidence 19 in court by conducting comparison exercises. In 20 fairness to him, I think he made that pretty plain to me 21 when I was speaking to him, that wasn't is field. But 22 he seems to be suggesting that while he is not a 23 fingerprint expert of that sort, it looks, on the face 24 of it, to have such characteristics as would allow an 25 appropriate expert to make an identification. That's page 195 1 what it seems to be saying but you would, with respect, 2 have to ask him what he meant by that. 3 Q. In relation to the meeting which you had with Mr Kent, 4 you said your statement you thought this took place 5 between about 12th and 21st April, which would be 6 between the start of the sitting and the start of the 7 trial. 8 A. I think he'd come up for the trial and he was about at 9 that time. I cannot remember precisely but it would 10 have been some time during the sitting and possibly even 11 at or about the start of the trial. 12 Q. Was anything said by Mr Kent to you at that meeting 13 which caused you to have concern about the SCRO evidence 14 on Y7? 15 A. My impression was more the other way that he was worried 16 about it. I mean, I knew by this time -- I knew that he 17 was going to be challenged by the defence but his role 18 appeared to be more of a monitoring one. He was there 19 to give evidence in relation to the question of plant 20 but his role appeared to be more of a sort of a 21 monitoring one in terms of the Home Office concerns 22 about, "Oh goodness, are we going to lose another 23 fingerprint case in Britain". That was the impression I 24 had rather than him expressing any direct concern about 25 the SCRO. page 196 1 Q. Thinking back, Sheriff Murphy, are you sure that you 2 knew about the Wertheim defence, if I could call it 3 that, at the time you spoke to Mr Kent? 4 A. If I didn't at the time I first met him I'm sure I would 5 have had an opportunity to speak to him again before the 6 Wertheim defence was put in in the trial because he was 7 up observing what was going on at the start. So if I 8 didn't know the first time I met him, I'm pretty certain 9 we did know that was the defence before we got very far 10 and certainly before the trial started, yes. 11 Q. Could I ask you to look at two paragraphs contained 12 within FI0052, which is the statement from Mr Kent to 13 the Inquiry. 14 A. Yes. 15 Q. I would like to look at paragraphs 27 and 29. I'm 16 sorry, I've not looked at the PDF number. Could I have 17 pages 9 and 10 together. 18 Would you read, please, paragraphs 27 and 29? 19 A. Yes. (Pause) 20 27 and 28, did you say? 21 Q. 29, I said. (Pause) 22 A. Yes, thank you. I've read those. 23 Q. Do you see that he appears to be saying he formed no 24 view about the identification of Y7 -- 25 A. Yes. page 197 1 Q. -- up until Mr Wertheim went into court to give evidence 2 because the possibility that the Scottish experts had 3 made a mistake in identifying Y7 had never crossed his 4 mind and in 29 he talks about being quite puzzled at the 5 time about the fact he wasn't cross-examined by the 6 defence. 7 Does that help you recollect whether, when you spoke 8 to Mr Kent prior to the trial, whether you discussed 9 with him mis-identification of Y7? 10 A. I don't recall specifically discussing 11 mis-identification of Y7 with him because he wasn't that 12 type of fingerprint expert, but I certain would have 13 expected him to be aware that that was the defence line 14 by that stage because I understood he'd been talking 15 with the Fiscals and while he was there as an expert in 16 one area he was, kind of, monitoring the situation. So 17 I have to say that does surprise me but it's -- I'm 18 rather surprised he says he formed no views -- of 19 course, that's not his area but I'm a little surprised 20 he seems to suggest he didn't know that was the defence 21 position until he heard Pat Wertheim's evidence. 22 Q. Have you any reason to doubt what Mr Kent has said in 23 these two paragraphs? 24 A. No, it just it surprises me because I think we were all 25 pretty clear by the start of the trial that it was about page 198 1 mis-identification and I thought he was aware of that. 2 Q. Is it possible you didn't discuss that with Mr Kent? 3 A. I'm sorry? 4 Q. Is it possible you didn't discuss it with Mr Kent? 5 A. I don't think that's an area I would have discussed with 6 him because he was there in relation to the question 7 of plant. He wasn't there -- identification wasn't his 8 field and I think he'd made that pretty plain. 9 Q. I would like to move on please. You've been asked what 10 your view was on why Ms Climie, the indicter in Crown 11 Office, was suggesting that another expert report be 12 instructed in January 1998 prior to the petition. 13 If we hear evidence from Ms Climie that she did not 14 suggest further examination based on any doubt that the 15 SCRO experts had not correctly identified the mark to 16 Ms McKie on the 16-point standard, as it was then 17 operating within SCRO, again, would you have any reason 18 to doubt that? 19 A. That's a matter for her. I don't think I was even in 20 Crown Office at the point when those discussions were 21 taking pace. I joined in September '98. 22 Q. Finally, Sheriff Murphy, in relation to Mr Swann, if we 23 accept that Mr Swann was instructed as a fingerprint 24 expert on behalf of Shirley McKie for her trial and if 25 you take it from me for the moment that Mr Swann gave page 199 1 evidence at the McNamee case, which is the English case 2 referred to -- 3 A. The IRA one that was mentioned, sure. 4 Q. -- earlier today and that he must have given evidence 5 prior to December 1998 because that's when the judgment 6 came out, can you clarify: presumably it would have been 7 open to Mr Swann to raise the issue of the reliability 8 of fingerprint evidence with Mr Findlay or part of the 9 defence team? 10 A. I can't really comment on that. That's a defence 11 matter. I don't know what took place between Mr Findlay 12 and Mr Swann. 13 Q. But that is something that could have been discussed? 14 A. If they ever met. I don't know they ever did. 15 Q. Did Mr Findlay ever comment to you about an English case 16 or issues of reliability regarding fingerprint evidence? 17 A. I'm pretty certain the person who spoke to me about the 18 English case and alerted me to that was actually Terry 19 Kent and not the defence, and I knew about American 20 debates through Mark Denis. I don't think that those 21 issues were ever raised with me by Donald Findlay. I 22 knew there had been a recent English case where there 23 had been a problem but I don't think I knew the details 24 of the McNamee the case, yes. 25 MISS GRAHAME: Thank you very much. page 200 1 THE CHAIRMAN: Is there any re-examination? 2 Re-examined by MISS CARMICHAEL 3 Q. There is one point sir, yes. 4 Sheriff Murphy, Miss Grahame sought to suggest to 5 you that couldn't have known by the time of your meeting 6 on 30th March of what I might call Wertheim defence. 7 A. Yes. 8 Q. And I think she suggested to you that Mr Wertheim had 9 first come to a view on this matter on 30th March and 10 that -- 11 A. Yes. No, that he had gone to conduct the examination 12 that would have led him to that view of the materials on 13 that day, I think was what was being suggested. 14 Q. Yes. It may not be Miss Grahame's fault because she may 15 not be aware of this material but I think we looked 16 earlier on the screen -- and I wonder if we can do that 17 again -- at DB0170 and I think we may only have looked 18 at page 13 of it but if you look at page 1 of that I 19 think we see the first entry is actually 24th March 1999 20 and we have Mr Wertheim meeting Angela McCracken and 21 travelling to the High Court that day. 22 A. Yes. 23 Q. We may hear, it may be that there comes to be evidence 24 from Mr Wertheim that it was on that date that he first 25 became concerned about the correctness of the page 201 1 identification and for that reason he went on to take 2 his own prints of Shirley McKie that day. I think I 3 should perhaps also refer you to page 12 of this 4 document, Sheriff Murphy, and -- 5 A. Yes, I have that. 6 Q. I think at top of that page we see an entry for 7 1700 hours on 29th March which appears to refer to a 8 meeting with Mr Findlay at which there's been some 9 discussion that two reports are needed, one positive for 10 direct which, I think, might be an American term for 11 examination-in-chief. 12 A. Right. 13 Q. And a negative one for cross-examination. 14 A. Yes. 15 Q. So we might take it that there are some indications that 16 certainly prior to a meeting there had been indications, 17 at least within the defence team, that there are doubts. 18 A. Yes. 19 Q. Seeing those dates and the possibility of views having 20 been expressed to Mr Findlay by the 29th, does that 21 affect your position? 22 A. Not really, I think it probably comes to this: I cannot 23 say with any certainty that I was aware that it was a 24 specific mis-identification at the time when I first met 25 the SCRO experts. We certainly did by the second page 202 1 meeting but at the time when I went up to see them -- I 2 would certainly have gone to see them for a reason, it 3 may simply have been to go through the expert testimony 4 to make sure I understood it -- I simply cannot say with 5 certainty that I was aware of the details of what the 6 defence position was by that time. It may be that Mr 7 Findlay and I had spoken and he'd raised something but I 8 can't say that with certainty. Certainly, I was aware 9 of that as the position by the time of the second 10 meeting. It's possible but I can't definitely say one 11 way or the other. 12 There seemed to be a certain consistency in the 13 dates Miss Grahame was putting to me but I can't say 14 with certainty one way or the other. I cannot recall 15 now what information was in my possession by the time of 16 the first meeting. I certainly thought I knew, without 17 any detail, that it was a challenge to the SCRO 18 identifications but I'm not sure now how much of that is 19 20/20 hindsight. I'm sorry, I just can't remember. 20 MISS CARMICHAEL: Thank you for that. I simply didn't want 21 you to be proceeding on, as it were, information that it 22 couldn't have come to light before the 30th. 23 Thank you Sheriff Murphy. I don't have any further 24 questions for you. 25 THE CHAIRMAN: Thank you very much I am very grateful to page 203 1 you. I am afraid we have taken up a lot of your time 2 and I gather we have actually disrupted your own 3 court -- 4 Q. I am a public servant, Sir Anthony. 5 THE CHAIRMAN: -- so I am sorry about that. Thank you again 6 for your help. 7 So 10.15 tomorrow. 8 (4.30 pm) 9 (Adjourned until 10.15 am the following morning) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25