page   1
 1                                       Wednesday, 1st July 2009
 2   (10.00 am)
 3                    ALISTER GEDDES (continued)
 4   THE CHAIRMAN:  Mr Smith, I think you had a few more
 5       questions to ask.
 6   MR SMITH:  I did, thank you, sir.  I am sorry for the light
 7       delay; I had something to discuss with Mr Moynihan.
 8   THE CHAIRMAN:  That's all right.
 9              Cross-examined by MR SMITH (continued)
10   Q.  Mr Geddes, I wonder if I can ask you a few more
11       questions if I can about the association with Mr Les
12       Brown.  You remember I ended up at that point last week.
13           I think in your evidence on Friday you indicated
14       that there was a long meeting with Mr Les Brown and
15       during that he was interested in hearing what you
16       describe as "our side of the story".
17           Can I ask what did you understand was meant by your
18       side of the story?
19   A.  I believe the last time I answered some of the questions
20       I mentioned that we received a copy of the averments
21       presented by yourselves and, quite frankly, I didn't
22       recognise my involvement.  Your averments stated I had
23       contradicted the original identification and that I had
24       refused to sign the relevant documentation.
25           I was precognosced on those averments in 2005.  I
page   2
 1       received citations from yourselves and I fully expected
 2       to have the opportunity to refute what you had placed in
 3       your averments concerning myself.  With the Scottish
 4       Executive settling, I was denied that opportunity.
 5           Also at the same time I found out, again through
 6       your efforts, about a further allegation of erroneous
 7       identification against my name relevant to the mark QD2.
 8       Apparently the allegation had been made in the year 2000
 9       and I only found out because yourselves placed it as
10       further evidence of malpractice at SCRO over five years
11       later.
12           I was asked by the Scottish Executive to prepare
13       photographic enlargements including QD2.  I returned
14       them to the Scottish Executive but in the meantime they
15       had asked an independent expert from down south, I
16       believe, by the name of Mike Pass(?) to review the
17       evidence relating to QD2 and he confirmed our
18       identification.
19           This took over five years for me to finally find out
20       that I had another erroneous allegation against me, then
21       to be told, when I handed over my photographic
22       enlargements QD2 was handed back to me and I was told
23       that's all right, that's not an issue any more.
24           Every time there is an allegation against us it made
25       headline news in the papers.  For instance, QD2 and
page   3
 1       later on Alexander Sutherland when it was found we were
 2       actually correct it just seemed to be a damp squib and
 3       never made any headlines.  Further, in February the
 4       Scotland on Sunday ran an expose of institutionalised
 5       arrogance, corruption, conspiracy, criminality because
 6       by they'd got hold of a secret document which transpired
 7       to be the Mackay Robertson report.  They ran a four page
 8       spread on that in February and it was quite a difficult
 9       time and a lot of the detail contained in it again
10       relating to my own position.  Although Scotland on
11       Sunday never actually named me, it was clear from
12       excerpts they were taking that it referred to myself
13       and, again, I didn't recognise my involvement and ...
14   Q.  I realise, Mr Geddes, that you feel very bitter about
15       the position but what I am again interested in is
16       whether you imparted to Les Brown any information
17       whatsoever that wasn't readily publicly already
18       available.  Did you?
19   A.  Well, the simple answer is no, but there was no
20       bitterness.  It was anger at the fabricated evidence
21       being allayed to my door.  I gave a factual account of
22       my involvement to Mr Brown.  That was it.
23   Q.  So where was that factual account already publicly
24       available?
25   A.  Well, it was documented in the Scotland on Sunday.  It
page   4
 1       would have been heard at the civil hearing, if it had
 2       went ahead and --
 3   Q.  But, Mr Geddes, it didn't go ahead.
 4   A.  It was information -- it was coming out so I didn't see
 5       any issues with my giving a factual account of my
 6       involvement relating to Y7.
 7   Q.  So we can agree about this: you imparted information to
 8       Les Brown that was not already in the public arena that
 9       you thought might have come out in the public arena; is
10       that fair?
11   A.  It was certainly out in February in Scotland on Sunday.
12   Q.  All of it?
13   A.  Well, it might not have named myself but the factual
14       narrative I recognised as being relevant to myself.
15   Q.  As I understand it, your concern was that your side of
16       the story had not been brought out; so can I take it
17       that you were imparting to Les Brown what you saw as
18       your side of the story that had not already been made
19       public; is that right?
20   A.  Well, as I've said it was out in Scotland on Sunday in
21       February.  It would have been out in the civil hearing.
22       It was my factual involvement in the identification
23       process which was misconstrued when you presented to the
24       civil hearing.  I just wanted to put that correct.
25   Q.  I understand what you say, Mr Geddes, but if it was
page   5
 1       already in the public arena why did you have to give
 2       anything to Les Brown that was not already known?
 3   A.  Well, first and foremost, I believe it would be courtesy
 4       because he was giving us the time to actually listen to
 5       us.  He was taking on the investigation of the murder of
 6       Marion Ross, surmising, maybe guessing, at the time he
 7       was trying to ensure that the fingerprint experts were
 8       honest, that what they actually did was an honest
 9       application of their procedures and processes at the
10       time.
11   Q.  But, as I understand what Mr Brown was supposed to be
12       doing was investigating the murder of Marion Ross; is
13       that not right?
14   A.  That's correct, yes.
15   Q.  But can you help me with this: what was Y7 in
16       particular?  What did that have to do with the murder of
17       Marion Ross?  It was eliminated according to you.
18   A.  That's correct, yes.
19   Q.  So what did it have to do with the murder of Marion
20       Ross?
21   A.  Well, as I said, it was the only thing could speak to.
22       That was the only area that I was involved in.  It maybe
23       could be used as an example of how events in the case
24       were being misconstrued and the public was being misled.
25   Q.  Can I ask you to look at a document, please, which is
page   6
 1       AB0001, which I think you can see is a series of e-mail
 2       stamps, apparently from Les Brown at the top to
 3       Superintendent Weir.
 4           Now as far as this e-mail is concerned, you may or
 5       may not have seen this before but I think we can see
 6       it's addressed to Superintendant Weir:
 7           "Ref our telephone conversation and, as promised,
 8       herewith concerns re the investigation into the murder
 9       of Marion Ross.  On 27th February 2006 I was contacted
10       by Fiona McBride SCRO and five of her colleagues with
11       the request that I assist them regarding the allegations
12       being made that they had been mistaken [I think that
13       should be] when identifying the fingerprint Y7 found at
14       the locus of the murder as that of Shirley McKie,
15       serving police officer, who denied then and ever since
16       that she had not been to the murder house.  I was given
17       a signed mandate by the six officers and agreed to
18       assist on a voluntary basis."
19           Can you help me with this: were you one of the
20       officers who signed the mandate for the benefit of Les
21       Brown?
22   A.  I don't believe I was, no.
23   Q.  Did you ever sign any mandate individually or at all
24       along with other individuals for Les Brown?
25   A.  I don't recall doing that, no.
page   7
 1   Q.  Are you saying it didn't happen or do you simply have no
 2       recollection?
 3   A.  No recollection whatsoever; sorry.
 4   Q.  Do you know who did sign it?
 5   A.  No, I didn't witness anyone signing anything.  I would
 6       assume it was the six officers who were involved at the
 7       time.
 8   Q.  Can you tell us who you understand those six to be?
 9   A.  No, I'd be merely surmising the six that would have been
10       involved would be the four who led the evidence,
11       Mr Mackenzie and Mr Dunbar but that's only by ...
12   Q.  Mr Brown does act for you or did act for you; is that
13       right?
14   A.  He acted for me -- well, he certainly acted for SCRO
15       officers and I was happy for him to do so and I didn't
16       see any conflict or issues with him doing that.
17   Q.  Did you have any concerns whatsoever that Les Brown, a
18       retired police officer, effectively a member of the
19       public who had some experience, did you have any
20       concerns that he was willing to act on your behalf at
21       any time?
22   A.  Sorry, could you repeat that?
23   Q.  It's a very bad question.
24           You went along to the meeting with him and Fiona
25       McBride, correct?
page   8
 1   A.  That's correct, yes.
 2   Q.  And you must have wondered what on earth was discussed
 3       in the meeting with Les Brown; is that right?
 4   A.  That would be correct, yes.
 5   Q.  Did you discuss it with Fiona McBride before going to
 6       the meeting with Les Brown?
 7   A.  No, I didn't actually, no.
 8   Q.  You didn't discuss anything about what he wanted,
 9       what you would say, what information you would provide;
10       nothing at all?  Is that the position?
11   A.  She phoned me and said she was meeting with Les Brown,
12       who I hadn't heard of at the time, and she explained who
13       he was and I would be willing to accompany her to meet
14       with him.
15   Q.  You must have had some kind of idea what it was about?
16   A.  Well, yes, he was looking into the murder of Marion
17       Ross.
18   Q.  Did you consider it may be a prudent approach to speak
19       to one of your superiors and explain that you were going
20       to meet with a member of the public to discuss the
21       murder of Marion Ross?
22   A.  Well, I didn't see there was any conflict or any issue
23       relating to my services for the Scottish Fingerprint
24       Service.  I didn't see any potential issue or conflict,
25       I have to say.
page   9
 1   Q.  Can I take it you would agree that it would at least be
 2       inappropriate and possibly unlawful for you in the
 3       course of employment with SCRO to disclose matters
 4       imparted to you in that employment to a member of the
 5       public; would you agree with that?
 6   A.  With respect, Mr Smith, I can only speak to my
 7       involvement re the identification process.  So I didn't
 8       have -- I didn't see any potential conflict or issue
 9       between the Scottish Fingerprint Service and any
10       information I could give to Mr Brown.  I couldn't give
11       him any guidance relating to the murder investigation or
12       any information relating to that at all.  All I could
13       speak to was my factual involvement in the
14       identification process of Y7.
15   Q.  My question is slightly different to that.  If you were
16       in a position -- just think generally not necessarily
17       relating to this case -- in the course of your work you
18       are provided with and are privy to undoubtedly
19       confidential information relating to criminal
20       investigation.  That's right, isn't it?
21   A.  Speaking generally, yes, that could be the case.
22   Q.  And if we particularise it, in this case, the murder of
23       Marion Ross, the identification of Y7, QI2 all these
24       things you would be aware of certain matters that were
25       confidential, not in the public arena.  That's right,
page  10
 1       isn't it?
 2   A.  Potentially, but in this particular instance actually,
 3       no.  All I was dealing with was the fingerprint side.  I
 4       don't see where the conflict issue arises.
 5   Q.  So if you are provided with a latent fingerprint and you
 6       are given a list of fingerprints of suspects, people
 7       that you are asked to analyse the item against, you
 8       agree with me?
 9   A.  Yes.
10   Q.  Do you consider it would be open to you to disclose to a
11       member of the public who these suspects were in general
12       chat, for example?
13   A.  I wouldn't disclose suspects, no.
14   Q.  So there is confidential information imparted to you in
15       the course of your work and particularly regarding the
16       analysis of Y7 that should not be disclosed.  That's
17       right, isn't it?
18   A.  Yes, taken in that context, yes, yes.
19   Q.  It's not just relating to the question of identifying
20       possible suspects, is it?  There's all kinds of things
21       that might be important, like where the fingerprint was
22       found, the position of the fingerprint on the doorframe,
23       et cetera, et cetera.  All of these are matters that
24       come to you in a position of confidence.  That's right,
25       isn't it?
page  11
 1   A.  Well, initially when the case is brought to the Bureau,
 2       yes, but by 2006 the vast majority of that information
 3       was already out there.
 4   Q.  Can you be clear that you only disclosed information
 5       that was already in the public arena; is that right?
 6   A.  Yes, that's correct.
 7   Q.  I would like to, if I can, move on to a few more
 8       questions about the identification of fingerprints, the
 9       way it is gone about.  You realise of course that when
10       we have been sitting through most of the evidence that
11       we haven't had any guidance on a basic level as to how
12       one looks at fingerprints, and I would like you to help
13       us with something just to give some guidance as to where
14       we are going with this.
15           I would like to look in particular at print Y7 and
16       we'll try and get a reasonable photograph of it just to
17       give us some assistance with it.  Give me one moment and
18       I will get the document number.  It's SG0367, please.
19       In fact, if you go to the inked fingerprint for a moment
20       on page 5 and you can see the legend at the bottom
21       that's got, "Inked left thumb print of Shirley Jane
22       McKie".  You see that.  I am sure you look at thousands
23       of fingerprints and I am sure -- it doesn't stick in
24       your mind, does it, the approximate layout of it?  Is it
25       something that's burned into your memory at all?
page  12
 1   A.  I wouldn't say burned into my memory, no.
 2   THE CHAIRMAN:  Can you identify, just for my assistance,
 3       whose image is that?  Who made this image, if that is
 4       the right word?
 5   MR SMITH:  Sir, we will try to give you authorship of it.
 6   THE CHAIRMAN:  It's just whether it is one this witness
 7       might have seen before or not.
 8   MR SMITH:  Sir, I am not sure from the database the ...
 9   MR MOYNIHAN:  We think that that's Mr Wertheim's document,
10       defence production number 2.
11   MR SMITH:  I am obliged.
12   THE CHAIRMAN:  So Mr Wertheim.  So this may not be one that
13       you have seen before.
14   MR SMITH:  What I would like to do, if I can, Mr Geddes, is
15       get you to help us on some basic points.  I am not going
16       to go into huge detail of this you will be relieved to
17       hear but some basic points of analysis of a fingerprint.
18           If we look at the top part of the fingerprint, the
19       very top, we can see a line going across.  Do you see
20       the very top inked line on that.  Do you follow?
21   A.  No, sorry.
22   Q.  It's running at an angle of -- it's not quite level at
23       the top of the print, you see the line across the top?
24   A.  Yes.
25   Q.  If we count down from about -- could I have an arrow,
page  13
 1       please, just slightly to the left.  If we count down the
 2       next line appears to be more or less a continuous line
 3       across the page.  Do you see that?
 4   A.  Yes.
 5   Q.  But the next line down although it appears to go more or
 6       less across the page to the right-hand side below it
 7       there's another line that's shorter.  Kind of a Y-shape?
 8       If we follow the third line down, we get a Y-shape at
 9       the right-hand side; do you see that?
10   A.  I do, yes.
11   Q.  Would that be something called a bifurcation?
12   A.  A bifurcation?  The bottom one possibly could be.  The
13       top one would be a ridge ending, I suggest.
14   Q.  Sorry, let us deal with the next one down.  I don't know
15       if it is possible that the IT people can give me a mouse
16       or something to point.  It's kind of difficult to
17       describe.  I think something will be identified to you
18       on the inked print.
19           Just slightly below that second pointer, we see
20       there's a split in the ridge going from left to right if
21       you follow the ridge along and it splits into a Y-shape;
22       do you see that?
23   A.  Yes, I do.
24   Q.  I take it you agree that that appears to be a split
25       ridge or it may be called a bifurcation, something of
page  14
 1       that kind.  Is that right?
 2   A.  Yes, mm-hm.
 3   Q.  In fact, if we count two lines below that pointer and go
 4       to the left, again you see a point where there's a join
 5       between the line and another ridge ending or, if you
 6       like, a bifurcation.  Do you see that?
 7   A.  Yes.
 8   Q.  Hopefully --
 9   THE CHAIRMAN:  Can we just wait for a moment until we get it
10       so we are all sure we are looking at the same thing.
11   MR SMITH:  I don't know if we can have the entire image
12       expanded a bit like we had before.  Thank you.  Just not
13       quite at the end of that pointer but just a little below
14       and a little to the right, we can see there's again,
15       broadly speaking, a Y-shape.  Do you see that?
16   A.  Yes.
17   Q.  Do you see the pointer that's towards the right, the
18       right-most pointer.  Do you see that?
19   A.  Yes.
20   Q.  If you follow that left a little bit from that we can
21       see again a join, a Y-shape developing.  Do you see
22       that?  Thank you.  Just again a little below that, that
23       fourth pointer, we can see a Y-shape developing?
24   A.  Yes.
25   Q.  I think what we have is maybe three Y-shapes opening, as
page  15
 1       it were.  As you go from left to right they open out in
 2       that direction.  Do you follow?
 3   A.  Yes.
 4   Q.  Would it be fair to describe these are as bifurcations
 5       opening, as we go left to right they are opening as you
 6       move in that direction.  Is that fair?
 7   A.  Well, if you're dealing with the black lines that one or
 8       two would resemble more a ridge ending.
 9   Q.  We can, no doubt whether it is a ridge ending it doesn't
10       quite join up with the line above it but nonetheless
11       it's broadly a Y-shape appearing; is that correct?
12   A.  Okay, yes.
13   Q.  I would like you to look if you can at page 9 within
14       that production if that could be put up.  This again, I
15       think is a photograph taken by Mr Wertheim -- if we
16       could have that expanded -- of Y7 and we can see on this
17       photograph there is an area towards the bottom that
18       appears to have a brush across it of some kind.  We see
19       an area, if I can identify this -- do you understand
20       what I'm looking at?
21   A.  A brush stroke across the centre, yes.
22   Q.  A stroke of some kind?
23   A.  Yes.
24   Q.  Perhaps if you can just identify that and we can have it
25       marked just so we can see what we are looking at.  That
page  16
 1       kind of area there and if we remove the green shading
 2       for a moment and hopefully we can see that there appears
 3       to be some disturbance of some kind across that area of
 4       the print; is that right?
 5   A.  Yes.
 6   Q.  What I would like you to do if you could look at the top
 7       section of this mark again, if you can perhaps identify
 8       the area that I pointed out to you it's probably easier.
 9       There's actually two areas.  Perhaps if you put the
10       mouse on it and I can tell you when you've reached the
11       bit.  Just up a little from that.  Just there and then
12       down towards the right just up from there, please, and
13       just there.  Thank you.
14           Now, as far as the left-hand island is concerned do
15       we see the lines almost touching if we go down to the
16       right and just about halfway between the two arrow
17       points and then we can see what appears to be another
18       ridge joining from below that and touching the ridge.
19       Do you see what I mean?
20   A.  Yes.
21   Q.  Would you agree with me that this looks to be a Y-shape
22       but opening in the opposite direction to the one we
23       previously looked at?  Would you agree with that?
24   A.  Yes, it gives that indication.
25   MR HOLMES:  Sir, I hesitate to object but if this witness is
page  17
 1       being asked for evidence of his opinion perhaps he
 2       should be given an opportunity to examine materials
 3       first.
 4   THE CHAIRMAN:  Yes.  Well, it is not very satisfactory
 5       because, first of all, I don't think I was asked for
 6       leave to cross-examine on this point at all.  It's
 7       certainly not in the list I noted on Friday of the
 8       subjects you wanted to raise and I am allowing it for
 9       the moment but I think the extent to which this is the
10       appropriate time to go into an issue such as this, the
11       appropriate time has not yet arisen.
12   MR SMITH:  Sir, I am happy to leave it there and just ask
13       general questions.
14   THE CHAIRMAN:  I think that would be more satisfactory.  I
15       think it is a well-made point that if the witness is
16       being asked to express a professional opinion, he should
17       have a opportunity to do it and not in these
18       circumstances.
19   MR SMITH:  I am happy to move on.
20   MR MOYNIHAN:  Just before we do I have been reminded, unless
21       we capture the images that have been created so far they
22       will be lost.
23   THE CHAIRMAN:  That is a fair point.  I will ask both of
24       you: do you want them captured now?  The witness hasn't
25       really expressed an opinion other than what he saw --
page  18
 1   MR MOYNIHAN:  The only reason for capturing them is that
 2       without the images captured the transcript won't make
 3       any sense.
 4   THE CHAIRMAN:  Can they be photographed?  It has been done.
 5   MR SMITH:  Thank you.  Now these have been saved they can be
 6       removed and I can ask maybe some general questions about
 7       how one goes about analysis of fingerprints.
 8           I take it you would agree with the general
 9       proposition that even though you're doing, I suppose, a
10       non-numeric assessment, nonetheless what you are looking
11       for is points on a fingerprint -- I touched on this with
12       you last week -- points on a fingerprint that are the
13       same between the latent, the unknown, and the inked
14       print.  You are looking for that, is that fair, amongst
15       other things?
16   A.  Yes, that's correct.
17   Q.  Let's suppose you look at a latent print and an inked
18       print and you find 20 points that are exactly the same
19       and nothing in disagreement; then it looks pretty clear,
20       doesn't it, that that comes from the same author.  Is
21       that right?
22   A.  Yes.
23   Q.  Let us suppose you had seen a difference between one or
24       the other.  What would your position be as far as the
25       difference is concerned?  How would you approach that?
page  19
 1   A.  When you initially sit down with your crime scene
 2       photograph, you deal with that in isolation and you
 3       attempt to glean as much information from that crime
 4       scene photograph as you can relating to the particular
 5       mark in question.  You'll be looking, as I believe I've
 6       spoke last week regarding orientation, you'll be looking
 7       to see which area is disclosed, are you able to
 8       recognise pattern, the fixed areas that are common on
 9       well-taken prints such as deltas and whorls are they
10       present and you are looking to recognise any potential
11       problem areas.  Is there area that has suffered from
12       distortion due to pressure or contaminants or excessive
13       use of powder, et cetera.
14   Q.  So what you are doing is you are trying to work
15       initially from the latent unknown mark to see how much
16       information you can glean and then compare it with the
17       inked mark; is that right?
18   A.  That would be correct.
19   Q.  Is it fair to say if you discover a difference between
20       one and the other, otherwise they look similar, there is
21       a difference, what you have to do is come to a
22       conclusion whether that can be explained by some
23       movement or distortion or something that would
24       legitimise you coming to the conclusion, notwithstanding
25       the difference, but it's still the same fingerprint.  Is
page  20
 1       that fair?
 2   A.  You would have to attempt to explain it.  Not all
 3       potential differences can be adequately explained.  You
 4       would then have to balance that out with other
 5       information that you have.  If, for instance, you have
 6       sufficient volume in sequence and agreement and you have
 7       an area that you're uncomfortable with or you have a
 8       potential problematic area -- sorry -- you would have to
 9       balance that with the amount of information you did have
10       in sequence and agreement.
11   Q.  But let's say in that balancing exercise you couldn't
12       simply come up with an explanation why there was a
13       difference between the two.  Do you follow?  What would
14       your conclusion be?
15   A.  The balance of information is actually very important
16       because last week we heard evidence that crime scene
17       marks are partial just merely by the deposition of them
18       they are left by accident so they are partial
19       impressions.  But what a lot of people don't seem to
20       understand is that ten prints taken under ideal
21       conditions with a very compliant arrestee and a very
22       conscientious officer taking those prints those are
23       partial.  It's a physical impossibility to get all the
24       detail on the last phalange of that digit compressed on
25       to a piece of paper.  So you have -- you are comparing a
page  21
 1       partial unknown against a partial known.  So the
 2       question is how would I know there is no dissimilarity
 3       in the area that is not disclosed either in the known or
 4       unknown and the reason it comes back to that balance of
 5       information when you have sequence and agreement the
 6       nature, the way the ridge characteristics are formed in
 7       the womb, that pattern is unique to the individual.
 8       That pattern stays with the individual throughout life
 9       until decomposition after death and once you start
10       finding ridge characteristics in sequence and agreement
11       some examiners explain it by saying we can
12       predict what's in the area that's not disclosed because
13       the pattern is set once you have sufficient volume.
14   Q.  Please understand I am not asking you something that is
15       not recorded off screen, if you like.  I am asking you
16       about an area that you do have a reasonably good touch,
17       you can identify ridge characteristics and you compare
18       that with the known print and you see a number of
19       identical points, points that you think are identical,
20       but one or two or whatever that are different, a ridge
21       ending that's not in agreement, a bifurcation that's not
22       there, something like that.  How would you approach that
23       if you can't explain it, if you can't come up with an
24       explanation?
25   A.  I'll give you an explanation and I appreciate you are
page  22
 1       talking about something that I can clearly see, if
 2       that's a potential difference, but what I said was we
 3       balance that with the information you already had.  If,
 4       yes, it could potentially -- is there something there
 5       that I'm going to have a problem with, if I have
 6       sufficient volume in another area chances are that will
 7       be an explainable difference due to contaminants or
 8       pressure.  But it all comes back down to do I have
 9       sufficient volume.
10   Q.  So I just want to be clear: this last question on this,
11       if I may, are you saying that even if there was a
12       difference, say a ridge ending wasn't there, you think
13       there could still be a match between the known and the
14       unknown.  Is that right?
15   A.  Almost definitely, depending on the balance of
16       information you have.
17   Q.  You gave us some evidence last week about the
18       orientations, remember the orientation of Y7 on the
19       door, and you explained how you felt that would assist
20       you in your analysis.  Do you remember telling us that
21       last week?
22   A.  I do, yes.
23   Q.  When you saw it, were you able to come to any
24       conclusions as to whether it was one touch or two?
25   A.  When I saw it in situ?
page  23
 1   Q.  Yes, first of all, in situ.  Did you come to any
 2       conclusion it was one touch or two?
 3   A.  I don't believe -- I can't recall it assisting me in
 4       that area.  The conclusion I came to on assessing the
 5       crime scene mark photograph was that there was pressure
 6       that resembled as if there was two touches.
 7   Q.  That was at a subsequent time to the actual day you
 8       visited the locus?
 9   A.  I don't have access to the paperwork but I certainly
10       conducted comparisons with Y7 prior to being asked to
11       verify the elimination.
12   Q.  In your position today, at one stage you came to a
13       conclusion, I take it, that it was two touches; is that
14       right?
15   A.  Well, my initial interpretation was that the print was
16       placed, the mark was placed on and then somehow it was
17       twisted.  I couldn't explain how that could happen as I
18       didn't witness the event but just going by the pressure
19       on the top differing from the bottom there seemed to be
20       movement in the mark.
21   Q.  Were you of the view as to whether or not the digit,
22       whichever one, had remained in contact with the door
23       while the two touches were applied?
24   A.  Like I, say I couldn't say for certain because I didn't
25       witness the deposition of the mark, but just going by
page  24
 1       the information disclosed by the crime scene photograph.
 2   Q.  Can I ask you to look at a document SG0711 which I hope
 3       is a copy of a chart prepared for the civil case.  Can I
 4       ask you to look at page 2, please.  I take it that that
 5       is your signature at the bottom?
 6   A.  Yes, that's correct.
 7   Q.  I will find the part I wanted to ask you about.  You see
 8       in the third paragraph just reading from the start of it
 9       you can see:
10           "My mark assessment of Y7 concluded that there was
11       sufficient ridge detail shown to enable me to
12       individualise.  I was also aware of movement at the top
13       part of the mark.  A possible explanation I felt was
14       that the lower part of the mark had made initial contact
15       with the surface and whilst retaining contact the digit
16       had twisted allowing the top park of the mark to be
17       deposited."
18           Now, you remember giving that opinion at one stage?
19   A.  Yes.
20   Q.  Which was that there was a possible explanation that the
21       digit retained contact and twisted.  Do you remember
22       that?
23   A.  Yes.
24   Q.  Did you ever depart, as far as you can remember, from
25       that opinion?
page  25
 1   A.  Well, I've only give it as a possible explanation.  As I
 2       say, I never witnessed the actual event so I can only go
 3       by what's disclosed in the crime scene photograph.
 4   Q.  I follow it's a possible explanation but nontheless the
 5       indication you are giving is that you were, I suppose,
 6       at least an explanation of some kind of it was a
 7       retained contact between the two touches; is that right?
 8   A.  Well, I think it's more important to recognise that I
 9       was assessing the fact there was movement there of some
10       description.
11   Q.  You gave evidence, I think, to the Justice 1 Inquiry in
12       June 2006.  Do you remember reading that?
13   A.  Yes, I do.
14   Q.  We unfortunately don't have links to the various pieces
15       of evidence there.  What I do have is a copy of the
16       relevant part.  I am not sure if we can have this put on
17       the screen just to give some indication of what we
18       understand your evidence to that Inquiry was.
19           This is an excerpt from something that is recorded
20       as you having said:
21           "The assessment that I made at the time was that the
22       mark had been placed on the doorframe tip first, that it
23       had been twisted and that the bottom part of the finger
24       had then been placed on the door frame.  Both parts of
25       the mark were made by a single touch, albeit that they
page  26
 1       were made at different times."
 2           Now, again just my reading of it, but it seems to
 3       suggest that at different times.  Can you explain if
 4       that is different to the position about retaining
 5       contact or the same as.  Can you reconcile the two?
 6   A.  At the same occasion, at the initial touch when the
 7       person was making the touch on the doorframe.  I was
 8       merely trying to proffer an explanation or potential
 9       explanation as to why the mark had been deposited, why I
10       was able to recognise movement.  There lies the
11       difficulty of moving away from the crime scene mark.  I
12       recognised movement and distortion in the crime scene
13       mark and I was comfortable with that analysis.
14       Attempting to proffer an explanation as to how it was
15       deposited is fraught with danger because we didn't have
16       witnesses to the actual deposition of the crime scene
17       mark.
18   Q.  So can we understand it's essentially an open question,
19       as far as you're concerned, about whether it was one or
20       two separate touches, although it was one with a twist
21       if I can put it that way.
22   A.  An open question, no.  To me it was a touch.  Whether
23       the bottom went first or whether the top went first it
24       was initial contact and then, to me, there was a
25       twisting of some description that allowed the deposit
page  27
 1       side to be deposited.  Different times: I'm not saying
 2       it was left on Monday and then the following Tuesday
 3       another mark was left.  I'm merely saying at initial
 4       contact there was some form of twist that took place.
 5   Q.  Are you able to say whether -- and I realise this may be
 6       difficult -- whether it was a top part touched first or
 7       the bottom part touched first?
 8   A.  No, I couldn't say.  I keep saying, but it's important,
 9       that I only deal with the information disclosed by the
10       crime scene mark.
11   Q.  Now, if I can move on to a slightly different topic and
12       it is really about the position, as it were, nowadays.
13       You continue to work in the business.  I think you are
14       one of the few, if not the only, who were involved
15       certainly with the Y7 question who continues to work, as
16       it were, on a day-to-day basis with fingerprints.
17           Can I ask you this: since the debate, if I can put
18       it that way, over Y7 has come into the public arena have
19       you given evidence in any court case?
20   A.  Yes, on two occasions since Justice 1, I believe.
21   Q.  And as far as evidence is concerned I'm not sure if it
22       has happened -- please tell us if it has -- but if you
23       were to be asked by defence counsel, for example, "Have
24       you had any involvement in the analysis of Y7 or the
25       Shirley McKie case directly", you would obviously have
page  28
 1       to answer yes.  That's right, isn't it?
 2   A.  Well, I would be under oath, Mr Smith, so I would have
 3       to give a truthful account of my involvement if
 4       requested.
 5   Q.  Suppose the next question was, "And did you form a view
 6       that Y7 did belong to Shirley McKie", the answer would
 7       be yes?
 8   A.  As I've said, I'm under oath, yes.
 9   Q.  How would you deal with a question being put to you as
10       to whether you accept that that may not be her
11       fingerprint.  You answered that, I think, last week --
12   A.  I believe I did, yes.
13   Q.  Do you understand that defence counsel may be keen to
14       point out that whatever your view is at present aboutY7
15       that there is a real question mark in the public arena
16       over the identification of Y7 being correct.
17           Against that background, have your employers ever
18       given you any indication as to how to handle such a
19       question?
20   A.  No.  I'm quite happy handling that question.  At the
21       very most you can say at this juncture that Y7 is a
22       disputed mark and there certainly is aspects arisen from
23       the case requires the fingerprint community to get
24       talking and get sorted.  However, I would be there on an
25       entirely different matter and if there were specific
page  29
 1       issues that defence felt arose from Y7 and were
 2       applicable to that particular case I was there for I
 3       would be happy to try and alleviate any concerns they
 4       had.
 5   Q.  You will understand, of course, a question to that
 6       effect would be no doubt designed to show that your
 7       opinion in a case you were giving evidence in might not
 8       be as absolute as it otherwise would be thought to be.
 9       You understand that there maybe some benefit in being
10       asked that question.  What I am interested in is whether
11       your employers have given you any guidance as to how you
12       should handle that particular matter.
13   A.  I can't say that they have, no.
14   Q.  Are you able to indicate what the current status of the
15       mark Y7 is within the computer system that is kept with
16       unknown prints?  Do you know anything about that?
17   A.  I'm sorry, I've had no access to the case papers since
18       1997.  I couldn't tell you what the situation with that
19       is.
20   Q.  Are you aware of whether unidentified prints from
21       serious crime scenes are kept in a database with a view
22       to comparing them against suspects brought in for other
23       crimes?  Are you aware of that?
24   A.  Oh, yes.  The computerised system that we have has an
25       unsolved match database and it holds the ten-print forms
page  30
 1       as well, yes.
 2   Q.  Do you know if Y7 has been placed on the system as,
 3       effectively, from an unsolved crime or an unsolved print
 4       or whether it is somewhere tagged as being, "This is
 5       Shirley McKie's fingerprint so we needn't have to think
 6       about that"?  Do you know what the status of it is?
 7   A.  I couldn't tell you but over the years working on the
 8       computerised system it's certainly never been flagged
 9       up.
10   MR SMITH:  Can you give me just one moment, please.
11           Thank you.  I've no further questions.
12   THE CHAIRMAN:  I did ask on Friday for an indication but one
13       is certainly open if anyone wants to apply to
14       cross-examine in the light of everything that has
15       happened today.
16                    Re-examined by MR MOYNIHAN
17   Q.  I have two questions I want to ask.  I hope to keep them
18       brief because I know you are due to go on holiday.
19           There is one point from this morning's questions
20       that my learned friend Mr Smith was asking you.  He was
21       asking you about the significance of differences and I
22       just want to be quite clear.
23           If there is a difference present between a mark and
24       a known print that you can explain, then it drops out
25       because it's an explained difference and it wouldn't
page  31
 1       cause you any difficulty?
 2   A.  Oh, yes.  If the explanation is visible, then it's not
 3       an issue, it doesn't become an issue.
 4   Q.  What I want you therefore to concentrate on is a
 5       difference you can recognise between the mark and the
 6       known print -- so there is a difference -- which you
 7       cannot explain.  So it's not due to pressure or movement
 8       or whateer, some ready explanation.  You cannot explain
 9       that one difference.  Would I be correct in
10       understanding what you said to my learned friend
11       Mr Smith that you might still arrive at a conclusion
12       that there is a unique identity between the mark and the
13       known print, despite the presence of an unexplained
14       difference if otherwise you find a sufficient volume of
15       characteristics in agreement between the known and the
16       unknown marks?
17   A.  I think it's important to understand how you actually
18       come to the identifications.  Like I said earlier it's
19       sufficient volume in sequence and agreement.  When you
20       have the pattern that was formed in the womb at
21       eight/nine weeks gestation occurring during your
22       comparison phase, you have ident and you have to have
23       sufficient volume and what I was saying to Mr Smith you
24       have to have the balance.  You have to balance that.
25       What you're saying from a layman's perspective is, "Oh,
page  32
 1       there's a clear difference there".  Now, as a
 2       fingerprint examiner if I'm looking at that I'm saying,
 3       "Well, okay, to a degree there is a clear difference
 4       there".  We have to accept there's going to be occasions
 5       when I can't fully explain why that's different.  I
 6       could just put it under the umbrella of distortion.
 7       Well, it's distorted.  But if I don't witness the actual
 8       deposition of the mark, if there's no clear disturbances
 9       in the ridges then I won't be able to make that
10       explanation.  So you're going to have to balance that
11       with the amount of detail that is disclosed and if you
12       have sufficient volume, then you will have no
13       differences -- it then will become an explainable
14       difference but I won't be able to give you a full
15       explanation as to why it is different, solely based on
16       the fact I have sufficient volume in sequence and
17       agreement.
18           It's like I said to Mr Smith, crime scene marks are
19       partial.  As Sheriff Murphy said ten prints are taken in
20       ideal conditions.  Nonsense, ten prints are partial
21       also.  So how are we then able to work?  How are we then
22       able to do our job because there's areas not disclosed
23       in the crime scene mark and there's areas not disclosed
24       in the print.  How then can I convincingly say there
25       well, there won't be any differences, it just won't
page  33
 1       happen.  The reason I know it won't happen is because
 2       that pattern is formed in the womb, it's yours, doesn't
 3       belong to anybody else, not even similar, twins are not
 4       even similar.  You carry on.  You've got the pattern,
 5       the arrangement, then I can then predict what's
 6       happening outwith that as long as I have sufficient
 7       volume in sequence and agreement.
 8   Q.  So what it really comes to is, in a sense it's almost by
 9       definition, if you find what in your judgment is
10       sufficient volume in sequence and agreement, then you
11       would conclude 100 per cent certainty there was a unique
12       identity between the known and the unknown print?
13   A.  Oh, yes.
14   Q.  Therefore, because you've already reached that
15       conclusion, any difference, whether you can explain it
16       or not, has to be discounted simply because it must be
17       discounted because you've already reached a conclusion
18       that there has to be a unique identity given there's
19       sufficient volume in sequence and agreement.
20   A.  You are obviously going to take into account in your
21       initial analysis of the print and if you have an
22       explanation, then that's great.  But in the ideal world
23       you're not going to always have an explanation.
24       Sometimes you have to accept that.  That's why I say you
25       have to balance -- it's not just really a case of, "I'm
page  34
 1       going to ignore you and I'm going to go elsewhere".
 2       They're going to be taking into account.  It's always
 3       going to be at the back of your mind this could
 4       potentially turn out not to be.  It's like an alarm
 5       going off in your head.  You start counting 4, 5 --
 6       you're still in the back of your mind saying, "well,
 7       I've still got this to contend with".  So it's only
 8       going to be discounted once you have sufficient volume
 9       in sequence and agreement.
10   Q.  Therefore, that makes particularly worthy of study what
11       you and your colleagues would regard as sufficient
12       volume under the non-numeric system for a unique
13       identification?
14   A.  Well, technically, yes, but it always comes down to show
15       me the mark.  Each mark should be taken on its own
16       individual merit.
17   Q.  We have covered that before and I will not go over it
18       again if I can ask, though, one other question that is
19       associated with this but I am not going to go back to
20       1997.
21           My learned friend Mr Smith on Friday asked you, he
22       was primarily talking about the non-numeric system, he
23       asked you whether there was a minimum number of
24       characteristics that could be present before you could
25       have a view that there was sufficient volume.  I
page  35
 1       understood you to say that if one looked at it worldwide
 2       we might find examples of as few as three or four
 3       characteristics having been used.
 4           Do you recollect that?
 5   A.  Not just on its own, three or four characteristics,
 6       taken in combination with other detail that was present
 7       whether that be an analysis of the actual ridge
 8       themselves or the pattern or something unusual that made
 9       it stick out.
10   Q.  What I want to do is approach the same question from the
11       point of view of 1997 when the numeric standard applied.
12           We know that the rule for court purposes was
13       understood to be 16 characteristics, details or
14       points -- call it what you will -- 16 points in sequence
15       and agreement and no unexplained difference.
16           Was that the understanding of the rule then?
17   A.  That's correct, yes.
18   Q.  You have also talked about eliminations and the fact
19       that fingerprint practitioners can, in fact, arrive at a
20       conclusion of unique identity with fewer than the court
21       standard of 16 and we have had some evidence varying
22       from 10 to 12.  We will hear in due course from one of
23       your colleagues who was able to give an opinion on Y7 of
24       unique identity with as few as eight characteristics
25       being observed.
page  36
 1           Was there at the time in the Scottish Criminal
 2       Record Office a policy that with as few as eight points
 3       you could reach a conclusion of unique identity but,
 4       with as few as eight, you were unable to report that
 5       matter in court?
 6   A.  When you do your comparison there is no numerical
 7       threshold.  That's it.  The numerical threshold comes
 8       into being for presentation purposes at court.  I
 9       appreciate that it took on some degree of, oh, 16 puts
10       it beyond all reasonable doubt, et cetera, but there was
11       no numerical threshold when you did your comparison.
12       You carried out your comparison, you took cognisance of
13       all the detail disclosed and you came to a conclusion.
14       If you are presenting as evidence, then obviously you
15       would require to revisit and ensure you had 16 points in
16       sequence and agreement.
17   Q.  Perhaps if I would be more direct: we may hear evidence
18       next week from Mr Shepherd, who was in the National
19       Training Centre in Durham, who would be teaching some
20       Scottish Criminal Record Office staff at certain points
21       in time and his understanding was that Scottish Criminal
22       Record Office had a policy that 16 points in sequence
23       and agreement and no unexplained difference would permit
24       evidence to be read in court.  We are agreed about that?
25   A.  Mmm.
page  37
 1   Q.  Eight points in sequence and agreement and no
 2       unexplained differences an opinion can be given as to
 3       identity but that could not go to court?
 4   A.  Could not go to court?
 5   Q.  Yes.
 6   A.  Well, you mentioned yourself last week there was the
 7       dire and crucial if it was in a serious crime --
 8   Q.  Just so we're not at crossed-purposes, we picked up the
 9       second half of that.
10           His understanding was that the Scottish Criminal
11       Record Office had a policy whereby an officer could
12       reach an opinion on a unique identification with as few
13       as eight points in sequence and agreement.
14           Do you accept that as the position of the Scottish
15       Criminal Record Office in 1997?
16   A.  I wasn't aware of any policy but, as I said, as far
17       as -- I can only base it on my training and my training
18       was that you come to your conclusion.  There's no
19       numerical threshold when you are carrying out your
20       comparison and analysis.  As to whether there was a
21       limit to presenting or an identification leaving the
22       Bureau, my understanding for volume crime we had a
23       policy for referred to as "strong suspicion" but that
24       was merely a rather misleading term.  We were happy with
25       identification and, as far as I can recall, that was
page  38
 1       between 10 and 15, as far as I can recall.  As to
 2       whether there was anything else over and above that, I
 3       couldn't say for definite.
 4   Q.  And by strong suspicion you explained on Friday that by
 5       strong suspicion -- as you say, it is a misnomer -- you
 6       really, as an expert, saying my opinion is a unique
 7       identity.  It's more than a strong suspicion?
 8   A.  Yes.  It went through the identification process.  It
 9       was independently checked by each individual, they
10       signed up just as they would a normal straightforward
11       identification, only on this occasion I believe it went
12       through the Divisional Commander.  As I say, you would
13       have to check that but ...
14   Q.  And the final point just to ask you to comment on was a
15       lower level where at the point of eliminating marks as
16       perhaps having come from people with known reasons,
17       innocent reasons, that have been present, true
18       eliminations, the bureau might eliminate with as few as
19       six points in sequence and agreement for an elimination.
20       Do you have any comment on that?
21   A.  As few as six?
22   Q.  Yes.
23   A.  Again, you would have to show me the mark but you would
24       have to take into account a lot more detail than just
25       straightforward a collection of six ridge endings, I
page  39
 1       would suggest.  I'm not aware of that I have to say.
 2   MR MOYNIHAN:  No further questions.  Thank you.
 3   THE CHAIRMAN:  On the last issue, would I be wrong to
 4       conclude then that what amounts to sufficient volume is
 5       such volume as allows an expert to be satisfied that it
 6       is the unique print of a particular person?
 7   A.  That's correct.  The phrase I keep saying is show me the
 8       mark because each mark is, by its own very nature,
 9       unique to that individual and there could be a
10       particular instance as we said, as I said earlier,
11       Glasgow dealt with ridge endings and bifurcations but
12       there was many permutations of that, as Mr Moynihan
13       highlighted, islands and lakes, et cetera.
14           So when you are doing your initial comparison,
15       you're dealing with ridge characteristics but you are
16       looking to the location and the rarity of the make-up of
17       those characteristics.  There may be instances where you
18       have what basically breaks down to seven or eight ridge
19       characteristics or even less but you have something
20       that's really unusual there, there's maybe a convergence
21       in the core, there's maybe what we refer to as a spur,
22       different permutations that could be termed rarer than
23       others that could lead you to be just as confident with
24       an identification with far less than -- equally, if you
25       had a combination of straightforward ridge endings,
page  40
 1       bifurcations with 16, with 20.  You would be just as
 2       confident with a lower one because of the rarity of the
 3       characteristics and the location.
 4   THE CHAIRMAN:  But does this not mean that the volume might
 5       be sufficient to satisfy one expert but not sufficient
 6       to satisfy another.
 7   A.  Unfortunately, yes.  That's the very nature of -- that's
 8       the issue where the scientists have issues with us
 9       because it is subjective and it is down to the
10       individual.  I spoke last week of individual but the
11       Bureau has a responsibility to ensure that that
12       individual is trained, has relevant knowledge and that
13       expertise is maintained because it does come down to the
14       subjective opinion of the individual expert.
15   THE CHAIRMAN:  On a totally different subject I wanted to
16       just ask you one question: in the course of the very
17       intensive training you get over many years, is any of
18       the training that's delivered focused on the actual
19       presentation of the evidence to a jury in a way that it
20       might be able to understand what is being explained?
21   A.  Oh, yes, yes.  We go through very intensive -- some
22       experts actually say it's more nerve wracking going
23       through that than going to court because you have the
24       combined experience of many senior examiners who may
25       have experienced obscure questions once, twice, three
page  41
 1       times in their career but they bring them all together
 2       and fire them at you at what we refer to as a mock
 3       trial.  I think what's important to understand is that
 4       we are actually led by what we present to the court by
 5       the Crown Prosecution Service.  We present or we did
 6       present charted enlargements.  We only presented one
 7       because that was at the behest of the Crown Prosecution
 8       Service.
 9           As to how we, as individuals, articulate how we
10       effected our identification, there certainly was a lot
11       of training in that respect but a lot of things have
12       changed down through the years because there was a lot
13       of -- you were told a long time back it's yes/no
14       answers.  Don't get caught in convoluted explanations.
15       For me, that all changed a long time ago because it's
16       important that they are able -- you are there to provide
17       expert opinion evidence.  That's what it comes down to.
18       Now, it's a bug bear of mine that the court is the arena
19       where our evidence is tested.  Much is made of the fact
20       that fingerprints doesn't get challenged but I would
21       suggest to anyone who says that.  I do my comparison, I
22       document my conclusions, that gets sent to the Crown
23       Prosecution Service.  Invariably, I end up with a
24       citation but, for instance, like this week I was cited
25       for the High Court.  I don't get called.  The
page  42
 1       fingerprint evidence is accepted.  On the odd occasion
 2       that I do get called the prosecution takes me through my
 3       evidence, I may get one or two questions from the judge
 4       and then they will turn and say to the defence, "Any
 5       cross?"
 6           "No, my Lord."
 7           If the defence isn't going to get up and fully test
 8       my evidence, I'm afraid that's not my responsibility.
 9       I've got enough to deal with ensuring that what I've
10       done is accurate, consistent and correct.  If I'm
11       willing to present that and back that up then it's down
12       to the judge, prosecution and defence to ensure that I'm
13       thoroughly tested when I make an appearance in the
14       witness box.
15   THE CHAIRMAN:  Well, you have had a long time in the witness
16       box here and I am very grateful to you and I am sorry we
17       have taken up some holiday today.  But thank you very
18       much.
19   A.  Thanks very much.
20                      (The witness withdrew)
21   THE CHAIRMAN:  What I plan to do is stick to the same timing
22       that we have the break.
23   MR MOYNIHAN:  Sir, the next witness is Mrs Greaves who I
24       think is in the hall just now.
25                 DENISE McLENNAN GREAVES (sworn)
page  43
 1   THE CHAIRMAN:  If I could just have your names for the
 2       record please.
 3   A.  My full name is Denise McLennan Greaves.
 4   THE CHAIRMAN:  I should just say that we're going to
 5       interrupt your evidence at 11.30 because that's the
 6       normal break to give the stenographer who is doing it
 7       single-handed a chance -- I am sorry, when you are only
 8       getting started to stop you again.
 9           Mr Moynihan?
10                     Examined by MR MOYNIHAN
11   Q.  Mrs Greaves, you have got with you your own witness
12       statement.
13   A.  Yes.
14   Q.  And is that a witness statement you have had an
15       opportunity to read over before you signed it?
16   A.  Yes.
17   Q.  The microphone is just to your right.  You may want to
18       move it closer.  If you can hear your own voice
19       reverberating, that means it's working.
20           Having had a chance to read over your statement and
21       to sign it, were you content it was an accurate record
22       as best you could recollect?
23   A.  There are a couple of, I think, handwritten changes that
24       I made on page 3.  I think that would probably be on
25       your copy as well.
page  44
 1   Q.  Perhaps we could bring it up.
 2   THE CHAIRMAN:  Is that at paragraph 6?
 3   A.  Yes, I've deleted productions and added conclusions
 4       instead.
 5   MR MOYNIHAN:  Subject to those changes, you are content with
 6       the accuracy of your statement?
 7   A.  Yes.
 8   Q.  Please feel free as we progress through the examination
 9       if there are points that we are discussing that are
10       inaccurate in your statement please just feel free to
11       correct your statement as we progress.
12   A.  There are perhaps some additions that I've got to, yes.
13   Q.  At the end, if I've not, by chance, covered all the
14       points that you have marked in as additions or changes
15       then you can tell us if there's anything I've
16       overlooked.
17           What I want to do, just for my benefit as much as
18       anyone else's, is just to start by giving some dates and
19       I will use some of the documents that we have to assist
20       and get some dates.  If I bring up a document CO3943.
21       We can see this is a letter from Mr Vannet to
22       Mr Gallacher?
23   A.  Yes.
24   Q.  And the second paragraph, the second line, confirms that
25       Mr Vannet had asked you to deal with the particular
page  45
 1       matter and it is dated 13th August 1997?
 2   A.  Yes.
 3   Q.  So can I take it just as again without worrying about
 4       being too accurate about this that by August 1997 you
 5       were involved in the perjury case for Ms McKie?
 6   A.  Yes, that's correct.
 7   Q.  If I move on, I have a document which is CO3937.  You
 8       may not have seen this before.  This is an internal
 9       Crown Office document?
10   A.  That's actually the front page of the precognition.
11   Q.  It would indicate the precognition you prepared had been
12       received in Crown Office by 22nd December 1997.
13   A.  Yes.  It was sent, I think I despatched it there on
14       19th December and received by them on 22nd.
15   Q.  So I will come back and gives me my first period I want
16       to ask about, between middle of August and end of
17       December when the case was being precognosced by you.
18           If we bear in mind by 22nd December the precognition
19       is in the Crown Office, the next document I have to mark
20       the end of the next phase is CO3928, which is a letter
21       of 30th January 1998.
22   A.  Yes.
23   Q.  If we may just have the two pages of that.  We will see
24       a letter from Ms Climie addressed to yourself dated
25       30th January.
page  46
 1   A.  Yes.
 2   Q.  Which in the second line we see that:
 3           "Crown Counsel instructed proceedings against
 4       Ms Cardwell"; do you see that?
 5   A.  Yes, that's correct.
 6   Q.  So far as that month of January, in effect, it would
 7       seem the matter has been within Crown Office?
 8   A.  Yes, throughout the month of January, yes.
 9   Q.  Then comes back out to you courtesy of this letter?
10   A.  Yes.
11   Q.  The next point I want to look at from the point of view
12       of an understanding of timings is a form F32, which is
13       CO3921.  It's attached to one of your letters in April
14       but what we have to do -- it's a rather peculiar place
15       it's to be found, attached to a CV of Mr Kent -- don't
16       ask me why.  If I take you to page 4 of that document,
17       we will see a letter from you dated 15th April 1998.  It
18       deals primarily with Mr Kent but it refers in the
19       penultimate paragraph to a form F32 being enclosed as
20       previously requested.  Do you see that?
21   A.  Yes, that's correct.
22   Q.  Then if we go to the next page, page 5, is this a copy
23       of the form F32?
24   A.  Yes.
25   Q.  Again, I am breaking this down in dates.  It's
page  47
 1       15th March 1998 is the date of this form.
 2   A.  Correct.
 3   Q.  What's the significance of this form?
 4   A.  It's a form that's for internal use at Crown Office to
 5       allocate the case to a sitting in the High Court.
 6   Q.  Is it a form prepared by you and returned to the Crown
 7       Office?
 8   A.  Yes, it's a form that's prepared by me and it would be
 9       returned to the Crown Office but it would be for use by
10       one of the admin staff at Crown Office.
11   Q.  My reason for alighting on this particular document,
12       again, so that we understand the time-frame, paragraph 2
13       tells us the charge is one of perjury, paragraph 3 gives
14       us some dates so that Ms McKie had appeared on petition,
15       following the letter of 30th January, she had appeared
16       on petition at 6th March 1998.
17   A.  Yes.
18   Q.  Accordingly, she was bailed so, therefore, not in
19       custody.  At that time that meant that she had to be
20       brought to trial within 12 months.  That's why
21       6th March 1999?
22   A.  Yes.
23   Q.  Finally, written beneath under paragraph 7, is the
24       handwriting your own handwriting?
25   A.  Yes.
page  48
 1   Q.  Your understanding as of 15th March was that Crown
 2       Counsel had already instructed that this matter was to
 3       proceed on to a trial in the High Court.
 4   A.  Yes, the letter of 30th January had said that it was to
 5       proceed to place the accused Cardwell on petition on a
 6       charge of perjury.  So that would be a High Court case.
 7       (Car alarm)
 8   THE CHAIRMAN:  It happens every morning about this
 9       time ... I'm getting used to it now.
10   MR MOYNIHAN:  We don't have fire alarms, we have car
11       alarms ...
12           I may be reading too much into this -- and, please,
13       if I am tell me -- we know in the period down to
14       30th January there is an instruction within Crown Office
15       to place someone or Ms McKie on petition?
16   A.  Yes.
17   Q.  In the ordinary course of events in a solemn case,
18       particularly a High Court case, placing on petition
19       would be one stage in the process.  There would be a
20       separate stage, a decision to indict?
21   A.  Yes.
22   Q.  And a separate decision would be required from Crown
23       Counsel to indict the case?
24   A.  Yes.
25   Q.  If I tell you I have not found and I'm not aware of a
page  49
 1       separate instruction to indict the case, would I be
 2       reading too much into what you have written if I were to
 3       think that this indicates that a decision had already
 4       been taken to proceed to indict the case as opposed to
 5       simply placing Ms McKie on petition?
 6   A.  A decision -- my understanding was at that stage a
 7       decision had already been taken.
 8   Q.  Had already?
 9   A.  Yes, because I think I explained at the beginning of my
10       statement that cases where perjury is involved -- not
11       simply this case but in general cases where there's a
12       charge of perjury -- investigations take place in a
13       different order.  In normal cases the police report a
14       case to the Procurator Fiscal, a case is marked and the
15       person appears on petition and then once they're either
16       committed for further examination and then released on
17       bail or fully committed in custody, then the
18       investigation in relation to the case would take place
19       and the case would then be -- the precognition in due
20       course would be reported to Crown Office to Crown
21       Counsel with request for an instruction whether the case
22       was to be indicted or not.
23           In the case of perjury, there is normally an
24       investigation beforehand in that a transcript of the
25       relevant evidence is obtained and considered, a report
page  50
 1       is obtained from the counsel, Crown Counsel, the
 2       Advocate Depute who's taking the case and, at that
 3       stage, it's I think you'll see from the earlier
 4       correspondence that it indicates it was a prima facie
 5       case and the matter was to be investigated and
 6       re-reported.  So it's a re-report, essentially, at that
 7       stage and not an initial report that you would have with
 8       a normal precognition.
 9   Q.  So what we were doing down to December would be, in
10       effect, a re-report?
11   A.  It's putting the case together, really.
12   Q.  So I would, therefore, be correct that by the stage
13       Ms McKie has appeared on petition -- this is by March --
14       your understanding is that a decision would already have
15       been taken to proceed to indict her?
16   A.  Yes.
17   Q.  Thank you.  The final date so that I have some
18       understanding, that is March.  If I progress to a
19       document, which is CO3445 -- for you because, I think
20       you have your own copies, it may be 19th January 1999.
21       Again, we may need to bring up the two pages up at the
22       same time.
23           This happens then, if I look at the second line, is
24       the matter coming back up again at this time for
25       indictment for a sitting of 1st March 1999.
page  51
 1   A.  Yes.
 2   Q.  We will look at this in a bit more detail.  From
 3       19th January would I be correct in understanding that
 4       there then is the normal preparation immediately prior
 5       to the trial to formally indict the case and all the
 6       preparation associated with the run-up to the trial?
 7   A.  Yes.
 8   Q.  Indeed, this one letter may actually, by coincidence,
 9       deal with a matter that was raised with Sheriff Murphy.
10       In fact, we know the trial didn't take place until
11       April/May.  So it would seem that it was adjourned.
12       Would that be correct?
13   A.  To be honest with you, at that stage I wasn't really
14       involved and, as I say in my statement, the only
15       information that I got was really from the press.  I
16       didn't get any information from court.
17   Q.  Please forgive me, I will just play something with you.
18       I appreciate you weren't involved.
19           Since we know the time bar was due to expire at the
20       beginning of March and the trial did not take place
21       until later, would it follow from the practice at that
22       time that what the court would require to have done is
23       not only adjourned the first trial diet set for the
24       beginning of March but also extended the time bar to
25       permit a later trial?
page  52
 1   A.  Yes, and that wasn't uncommon, you know, at that time.
 2   Q.  I am very grateful to you because what that means is the
 3       periods that I want to look at with you are, first of
 4       all, your own active involvement between August and
 5       December preparing the precognition.  So far as the
 6       period in January when the matter was in Crown Office,
 7       is that, even to you, a matter that's in effect behind
 8       closed doors that you're not privy to?
 9   A.  Yes.
10   Q.  Then it comes out from behind those closed doors on with
11       the letter of 30th January?
12   A.  Yes.
13   Q.  We will look at the period from 30th January -- sorry,
14       it then goes into March when we know Ms McKie's on
15       petition and I want to look at your involvement between
16       March 1998 and January 1999, in a sense, while the case
17       is not as active as it might be and then we will look at
18       some very brief questions in relation to the period in
19       January up to the trial.
20           I want to be relatively brief in relation to the
21       first period.  We have already had evidence about a
22       precognition.  A precognition we understand to be a term
23       that's both used in a minor and in a major sense.  A
24       minor one would be that a precognition is the statement
25       taken by a Procurator Fiscal or a member of the Fiscal
page  53
 1       staff, such as yourself, of a witness?
 2   A.  Yes.
 3   Q.  Then a precognition is also grander.  It's a collective
 4       term attached to the report, in effect, that you prepare
 5       and submit to Crown Office?
 6   A.  Yes.
 7   Q.  In this particular case, given that the matter was
 8       commit by Mr Vannet to you, were you the individual
 9       responsible for precognoscing, taking statements, from
10       the various witnesses?
11   A.  Yes.
12   Q.  Just so that we have no doubt about the matter, when you
13       take a statement you try as best you can to accurately
14       reproduce what the witness has told you?
15   A.  Yes.
16   Q.  But it would not be normal practice to send the
17       precognition, individual statement, to that witness for
18       comment or revision?
19   A.  No.
20   Q.  Is the matter dealt with as confidential to the Crown?
21   A.  Yes, but in the case of precognitions in the Complaints
22       Against the Police Unit, normally any statements that
23       were relevant that the police, for instance, police
24       witnesses had given perhaps previously in connection
25       with, say, you know, the Asbury inquiry, those would
page  54
 1       have been, as I recall, inserted into the precognition
 2       as well.  So that there wasn't just my precognition of
 3       events, there would be other statements that those
 4       officers had previously given and had been, you know,
 5       recorded by themselves.
 6   Q.  Of course the object, as we hear from Sheriff Murphy (or
 7       now Sheriff Murphy) the object is to give the Advocate
 8       Depute who is prosecuting the case a self-contained
 9       master set of all that he or she may require in the
10       conduct of the case?
11   A.  Yes.
12   Q.  And therefore, as you say, in addition to your own
13       precognition of a witness, if you thought there was
14       something relevant in a previous statement a witness had
15       given, you might insert that previous statement?
16   A.  In general terms, I would have put in -- I would have
17       expected to have put in most of the, any previous
18       statements that the witness had given unless it was
19       something completely, you know, unconnected with the
20       case.
21   Q.  Having yourself interviewed witnesses and taken
22       statements from them, are you then required to prepare a
23       summary of the case?
24   A.  Yes.
25   Q.  Does that summary include a narrative and analysis of
page  55
 1       the evidence?
 2   A.  Yes, and a conclusions and recommendations section.
 3   Q.  So, therefore, when we look at the documents which have
 4       a narrative and an analysis and a recommendation, I
 5       should understand that those would form part of the
 6       recognition and would therefore date and reflect your
 7       thinking between August and December 1997?
 8   A.  I think I would have probably prepared that during the
 9       latter part of, you know, my preparations.  So I would
10       have expected to be doing that, you know, finalising
11       that anyway in December just immediately before the
12       precognition was submitted.
13   Q.  So in other words, having investigated the matter as
14       thoroughly as you thought necessary, you would in effect
15       gather your thoughts at the end of the process and that
16       would be reflected in the narrative, the analysis and
17       the recommendations?
18   A.  Yes.
19   Q.  If I can simply demonstrate for two witnesses, one a
20       Mr Kerr (who we have heard some evidence about), we
21       happen to have in a document for us CO3588, it's a
22       picture of a notebook.  Do you in fact keep notebooks of
23       statements you took from the various witnesses?
24   A.  Yes.
25   Q.  As I said to you, if it helps to have the original here
page  56
 1       if that's necessary for your purposes.  If I turn to
 2       page 28 here, PDF page 28, do you recognise your writing
 3       as having at the top "Jim Kerr"?
 4   A.  Yes.
 5   Q.  Is this an example of the type of thing that you would
 6       be preparing?
 7   A.  That's the notes that I was taking at the time.  As you
 8       probably know if you've taken statements, sometimes, you
 9       know, you're writing sort of main points down but there
10       are perhaps other points that witnesses will make to you
11       that you don't have time to fully record.  My practice
12       was to make up the precognition statement shortly after
13       I had taken statements so that any additional material
14       was fresh in my mind at the time.
15   Q.  So, in other words, what we see on the screen just now
16       are your notes as you're speaking to the witness?
17   A.  Yes.
18   Q.  You don't necessarily put every word down?
19   A.  No.
20   Q.  And, as you say, you would dictate a written record of
21       this fairly shortly thereafter so that your recollection
22       was clear about the parts that are missing in written
23       notes?
24   A.  Yes.
25   Q.  If I can put that just to the left just now and bring up
page  57
 1       the typed version as well, which is CO2592, again would
 2       this be an example of typed statement you prepare for
 3       witnesses?
 4   A.  Yes.
 5   Q.  To be included in a precognition in due course?
 6   A.  Yes.
 7   Q.  If I try to do this simultaneously on left and right of
 8       the screen, if on the left of the screen I move to
 9       page 32 and on the right of the screen I move to
10       page 3 -- in fact, it is page 4 -- what I am interested
11       in is the very top line to understand how
12       precognitions are taken.  If I understand your writing,
13       you write, "SC" -- that would be Shirley Cardwell?
14   A.  Yes.
15   Q.  "... asked me on the Saturday just before lunch at
16       Kilmarnock Police Office in D/C's room."
17           Do you see that?
18   A.  Yes.
19   Q.  Perhaps if I go to the preceding page 31 -- well,
20       there's nothing actually there.  If I turn to page 32
21       again on that to try then to find how this works, if I
22       look at the top on the right-hand side of the typed
23       version, do we see what you record Mr Kerr as having
24       told you that would correspond to that manuscript entry:
25           "DC Shirley Cardwell spoke to me on the Saturday
page  58
 1       [that's 11th January] just before lunch at Kilmarnock
 2       Police Office.  We were in the DC's room and I was
 3       wearing the white suit which I had been supplied with.
 4       I remember [she] asked me if the Scenes of Crime men had
 5       finished yet."
 6           In effect, reading it short, she was asking and the
 7       sentence indicates, the next two sentences, she was
 8       asking him if there was any chance that she could go to
 9       the House.  Is that correct?
10   A.  Yes.
11   Q.  Do we see, in fact, again similar sort of language in
12       your manuscript note, "Nowhere near finished is there
13       any chance of going up to the House", is what you write?
14   A.  Yes.
15   Q.  My reason for doing this is we have some questions of
16       timing with Mr Kerr but it would seem from your
17       manuscript notes that what he told you at the time when
18       you met him was that that conversation had occurred at
19       some point before lunch that Saturday?
20   A.  I think he said something about lunch time or just after
21       lunch.  Just before lunch there, yes, at Kilmarnock
22       Police Office.
23   Q.  It may be difficult just to hear you.
24   A.  Sorry, yes, it says in the statement just before lunch
25       at Kilmarnock Police Office.
page  59
 1   Q.  We may just be about to adjourn anyway, if you move the
 2       microphone, the microphone I'm afraid is just not very
 3       sensitive, hence why it's positioned as it is for me.
 4           The second point I wanted to ask you about is on the
 5       manuscript document on the left, if we go to page 36, if
 6       we start at page 35 and on the -- we will leave the
 7       typed version for a moment.  Look at page 35.  You are
 8       talking about the Serious Crimes officers and then if I
 9       turn to the top of page 36, in a sense unconnected, so
10       this is where I was trying to actually then see how you
11       understood it at the time.  You write in the manuscript:
12         "I think she was there about 1.30.  I left about
13       3.00-ish because of the backlog of productions."
14           Then there is reference to the production room at
15       Kilmarnock was along from the TV room and there was a
16       rugby match on, yes?
17   A.  Yes.
18   Q.  So if one is looking at it there, he's told you about
19       something happening before lunch.  We now have something
20       happening about 1.30 and he himself left about 3.00-ish.
21   A.  Yes.
22   Q.  If I look then at page on the right-hand screen, if I go
23       to page 5, perhaps if I go to the preceding part on page
24       4 at the foot.  In the first paragraph at the top,
25       page 179 of the manuscript, page 4 of the typescript,
page  60
 1       you have mentioned him as having spoken to Ms Cardwell,
 2       Ms McKie, just before lunch at Kilmarnock Police Office
 3       and we have looked at that and then the last paragraph
 4       he also says that he saw Ms Cardwell at the house of
 5       Marion Ross on the Saturday just after lunch.  That's
 6       11th January.
 7   A.  Yes.
 8   Q.  And then the point that I picked up in your manuscript
 9       notes about 1.30, leaving about 3.00-ish, if I turn to
10       the next page in the typed version, do we see that you
11       in fact have accurately transposed that in the third
12       line:
13         "I think Shirley Cardwell was there about 1.30 pm.  I
14       left the locus about 3.00 pm-ish because of the backlog
15       of productions."
16   A.  Yes.
17   Q.  "My reason for thinking that was the time was that the
18       production room at Kilmarnock was along from the TV room
19       and I recall that there was a rugby match on during the
20       afternoon."
21   A.  Yes.
22   Q.  So, in fact, we can see now with the two side-by-side
23       that though there is some expansion, as you've
24       explained, the essence is reproduced word-for-word
25       and -ish for -ish from what you understood the man to
page  61
 1       have said to you?
 2   A.  Yes.
 3   THE CHAIRMAN:  I think this will be a convenient moment.  We
 4       will sit again at 11.55.
 5   (11.33 am)
 6                         (A short break)
 7   (11.55 am)
 8   MR MOYNIHAN:  I just want to ask you if we take away the
 9       images that we have just now and I will ask you also
10       about your meetings with some of the Fingerprint
11       Officers.  You had a number of meetings during the
12       precognition stage with the Fingerprint Officers?
13   A.  Yes.
14   Q.  In particular, you met Mr Macpherson and Mr Stewart?
15   A.  Yes.
16   Q.  So far as Mr Stewart is concerned, if I could bring up
17       just on screen again, first of all, CO3587 and then go
18       to page 20 -- that must be a mistake.
19           If we just work back and I will tell you to stop.
20           If we stop there, page 14 then is the beginning of
21       one of your meetings with Mr Stewart and if I bring up
22       on screen as well CO2630 will this be a typed version --
23       and we have a date 2nd October 1997 -- of a meeting with
24       Mr Stewart?
25   A.  Yes.
page  62
 1   Q.  What I wanted to look at was to move from that first one
 2       to a second meeting with Mr Stewart and if I bring up
 3       CO2631, if we have it and also 3580.  What we have on
 4       the manuscript on the right-hand side is a note by
 5       yourself.
 6   A.  Yes.
 7   Q.  It refers to:
 8           "Mr Macpherson and I compared production 153 and
 9       some other documents."
10           Would that therefore correspond to the meeting that
11       you had with Charles Stewart in the typed on the
12       left-hand side, in particular the reference to the 153
13       and 179 tie in with the manuscript note?
14   A.  Yes.
15   Q.  And the typed sheet will tell us that you met Mr Stewart
16       on 16th December 1997?
17   A.  Yes.
18   Q.  If we look on the right-hand page at the next sheet, do
19       we see in the third and fourth lines that you record:
20           "Having looked at print Y7 on 16/12, not under lab
21       conditions, it appears fine."
22           So again the manuscript note would tie in with the
23       date of the meeting in the typescript?
24   A.  Yes.
25   Q.  What I want to do, the reason for bringing these
page  63
 1       documents up is to ask you about something that you have
 2       not been asked about when you were giving your
 3       statement; so please, if you have any uncertainty about
 4       this, just indicate.
 5           If on the left-hand screen I go to the next page,
 6       you will see two-thirds of the way down in fairly faint
 7       writing a reference to a production 180.
 8           Do you see that?  I have the original so we can
 9       check.
10   A.  Is that 180?  If looks like 190 or 150 but ...
11   Q.  It's a photograph of the impression and "appeared to be
12       entirely similar" is what is written?
13   A.  Yes.
14   Q.  Give me just a second.  (Pause)
15           It is just a little clearer in the original.
16       (Handed)
17         It is slightly faint because what you have is the
18       Fiscal's photocopy of the precognition but it seems to
19       be production 180.
20   A.  Yes.  I don't think -- I mean, that's presumably what is
21       relevant, the relevant number so ...
22   Q.  Yes.
23   A.  I can't really tell from that, to be honest.  It could
24       be 180.
25   Q.  Assuming it is 180, that would mean, just looking at the
page  64
 1       way this has been prepared, that that document existed
 2       by December 1997.  That would be correct?
 3   A.  Yes.
 4   Q.  If I look back to the beginning of the manuscript notes,
 5       you have written, "Hugh Macpherson and I ..."  So this
 6       would be Mr Stewart and Mr Macpherson have been carrying
 7       out some comparison.  Yes?
 8   A.  It looks like it, yes.
 9   Q.  The reason for me asking these questions, production 180
10       for us is DB0011, page 3.  You see a production 180 in
11       the case of Ms Cardwell.  If I move on to page 4 you see
12       now in front of you a cover sheet from the Scottish
13       Criminal Record Office with two signatures and if I tell
14       you those are Mr Macpherson and Mr Stewart?
15   A.  I would agree with that, yes.
16   Q.  If I move through to production 180 and to the next
17       sheet as well, photographs of Y7 are on the screen.
18       Finally, page 6: a charting.  This is a charting which,
19       unusually, has the signature of two officers,
20       Mr Macpherson and Mr Stewart, not the normal four
21       Fingerprint Officers.  It would seem from the
22       precognition it's existed by the time of the second
23       meeting with Mr Stewart.
24           Do you have any recollection -- please don't
25       hesitate if you don't -- any recollection of Mr Stewart
page  65
 1       and Mr Macpherson, two individuals, only being asked to
 2       produce a charting for your investigation?
 3   A.  I'm not sure what you mean by a charting.
 4   Q.  I mean by a charting what we see on the screen just now
 5       at page 6 of this is production, a charting is the
 6       legend at the top says "an enlargement".  On the
 7       left-hand side is an enlargement of the mark or
 8       impression Y7 and on the right-hand side the fingerprint
 9       of Ms Cardwell.  The charting is simply that numerical
10       references are inserted to show the points that are said
11       to be common to the two.
12           Can you recollect having asked Mr Stewart and
13       Mr Macpherson to produce a charting for your purposes?
14   A.  No, I can't recall that, no.
15   Q.  That's fine.  Thank you very much.  If you don't recall
16       I will leave it there.
17           Now, I've really finished using these few examples
18       as you speaking to witnesses and then you prepare your
19       narrative and analysis.  If I bring up the computer
20       version of your narrative and analysis it's CO2561.  You
21       may have your own paper version of this.  If you wish to
22       use your paper version, please feel free.
23           Having carried out your investigation and spoken to
24       a number of police officers and to the Fingerprint
25       Officers, Mr Stewart and Mr Macpherson, you then
page  66
 1       prepared a narrative of facts and an analysis of the
 2       evidence.
 3   A.  Yes.
 4   Q.  So if one wanted to understand or gain an impression of
 5       your understanding of the case down to December 1997 one
 6       need only read your analysis?
 7   A.  Yes.
 8   Q.  In particular, in the last paragraph on that page, four
 9       lines in do we see that you in fact make a reference to
10       Mr Stewart and Mr Macpherson having no concerns of the
11       propriety of the impression?
12   A.  Yes.
13   Q.  That reflects the fact that you had had extensive
14       discussions with them as Fingerprint Officers?
15   A.  Yes.
16   Q.  If I stopped the matter there in December 1997 and asked
17       you what the line of defence was that was anticipated,
18       what would you have been thinking at that time was the
19       line of defence to the charge of perjury?
20   A.  I believe at that time it was thought that it was either
21       planted or been transposed from somewhere else.
22   Q.  Planted or transposed?
23   A.  Yes.
24   Q.  When you were speaking to the Fingerprint Officers, did
25       it occur to you that the line of defence may, in fact,
page  67
 1       turn out to be what it did turn out to be, namely that
 2       Y7 was simply a mis-identification of
 3       Ms Cardwell's/Ms McKie's fingerprint?
 4   A.  I think not in so many ... obviously, when I was
 5       speaking to them I was speaking to them about the
 6       comparison that they'd done and from the information I
 7       got they were able to justify their reasoning for it
 8       being a true comparison and, you know, that the results
 9       they obtained were correct.  That was really the
10       information I got from them.
11           I didn't question them at that time about whether or
12       not it was they had made a mistake because I think I
13       also knew at that time that the expert in the David
14       Asbury case, the defence expert in the David Asbury
15       case, as I understand it, had reached a similar
16       conclusion.
17   Q.  Did you know the name of that expert in the David Asbury
18       case?
19   A.  No, I can't remember the name now.
20   Q.  If I suggested there was two possibilities: one is
21       Malcolm Graham?
22   A.  I don't remember that name.
23   Q.  Or Peter Swann?
24   A.  I do remember that name but I don't know -- I know,
25       obviously, there was a defence expert in the Shirley
page  68
 1       McKie case as well and I don't know whether Peter Swann
 2       was an expert -- I now don't know whether Peter Swann
 3       was the expert in the Asbury case or the McKie case.
 4   Q.  Just to assist, my understanding is that Malcolm Graham
 5       was the expert instructed by the defence in the Asbury
 6       case -- Malcolm Graham -- and that Peter Swann was, as
 7       your recollection indicates, the expert consulted by
 8       Ms McKie at one stage.  That helps with our proceeding.
 9           What I wanted to do while I also have page 1 of this
10       document up on screen is to look at the third paragraph
11       where you begin by giving a quote in connection with the
12       crime of perjury.  It's not a definition of the crime;
13       it's simply indicating the seriousness of the crime.
14           Then the third line you say:
15           "It's clearly the case with Shirley Cardwell, and I
16       would say it's a serious matter being viewed as a
17       deliberate attack on the basic foundations of the legal
18       system."
19           Then the next sentence:
20           "She has called into question the reliability and
21       infallibility of fingerprint evidence."
22           Plainly that is something that you yourself actually
23       wrote.
24   A.  Yes.
25   Q.  Dealing with it just in terms of understanding, first of
page  69
 1       all, in December 1997 when writing this what view did
 2       you have about the reliability of fingerprint
 3       identifications?
 4   A.  At that time I had obviously my own views from being a
 5       prosecutor at court but in connection with this
 6       investigation I had obviously had input from senior
 7       police officers who were involved in liaison with the
 8       Complaints Against the Police Unit.  So basically at
 9       that stage my view really was that there was little
10       scope for doubt in fingerprint evidence.
11   Q.  Little scope for doubt and, therefore, that would
12       indicate reliability.
13           Infallibility: is that a word, if I had asked you at
14       the time you yourself would have been happy to accept as
15       the degree of reliability that you would have based on
16       your view of fingerprint evidence, that it was viewed as
17       being infallible?
18   A.  I think that was the general view at that time.  As you
19       probably know, fingerprint evidence was routinely agreed
20       in cases and it was very rarely -- it was very rare that
21       Fingerprint Officers were required to go into court to
22       speak to their reports.
23   Q.  So it was very rare for them even to be required --
24   A.  I don't think I ever came across a situation prior to
25       the David Asbury case where Fingerprint Officers, in my
page  70
 1       experience, were asked to attend as witnesses.
 2   Q.  So forgive me, it's coming up, they would write reports
 3       that you would say were more often than not agreed?
 4   A.  Yes.
 5   Q.  It would be rare for a fingerprint officer even to give
 6       evidence in court?
 7   A.  Yes.
 8   Q.  Therefore, really moving it forward to what eventually
 9       developed in the McKie case had you ever had knowledge
10       of a contested fingerprint identification?
11   A.  No.
12   Q.  Had you ever heard of one before this stage?
13   A.  Not in my experience.  Perhaps, anecdotally but I can't
14       tell when that was, just the things you hear in the
15       press or media.
16   Q.  If I move to page 4 of this particular document and two
17       paragraphs that you will be aware of because you have
18       been asked some questions about them.  If I look at the
19       third one:
20           "You say the precognoscer is aware that the police
21       are extremely concerned that should the case against
22       Shirley Cardwell proceed to a trial a jury may not fully
23       understand the complexities of the case and the
24       infallible nature of the fingerprint evidence."
25           Now you are communicating -- you are the
page  71
 1       precognoscer; is that correct?
 2   A.  Yes.
 3   Q.  You are communicating to Crown Office a concern the
 4       police have that made you aware of; is that correct?
 5   A.  Yes.
 6   Q.  The police seemed to have shared the same conclusion
 7       that you had, that fingerprint evidence was viewed as
 8       being infallible?
 9   A.  Yes.
10   Q.  And the concern that had been raised was how that was to
11       be demonstrated to the jury.
12   A.  Yes.
13   Q.  If we go back to the full-page document, preceding that
14       there's a paragraph about which you have been asked
15       where you raise some matters that may require some
16       further consideration.  Is that correct?
17   A.  Yes, that's correct.
18   Q.  Before we look at those in any sort of detail, if I can
19       ask you about -- if we just perhaps put that to one side
20       just on the screen and we will bring up another document
21       which is the problems sheet CO3573.
22           Do you recognise that?
23   A.  Yes.
24   Q.  Are you the author of that particular document?
25   A.  Yes.
page  72
 1   Q.  The question is the chicken and egg, which comes first
 2       of these two.
 3   A.  The problems and observations sheet normally would be
 4       submitted as part of the precognition as, you know,
 5       outstanding matters really and it would be submitted
 6       with the precognition and it's a document that would be
 7       added to and taken bits -- you can see bits have been
 8       scored out.  Sometimes, you know, there might be, 8, 9
 9       and 10 might have been added on as the precognition was
10       sent through to Crown Office and returned.
11   Q.  So in some senses these may therefore be contemporaneous
12       documents?
13   A.  Yes.
14   Q.  My reasons for asking you is again you have covered this
15       in your statement, in the problems sheet on the
16       right-hand of the screen, paragraphs 3 and 4, do we see
17       that you have raised, in effect, as two separate points,
18       3 and 4, what came in the precognition to be presented
19       as one paragraph?
20   A.  Yes.
21   Q.  And the name so far as paragraph 4 on the right-hand
22       side is concerned, the name of Terry Kent and if I
23       explain to you it's Mr rather than Dr, and nothing turns
24       on that, Mr Kent's mentioned as an individual in
25       relation to the transplanting and faking of prints as
page  73
 1       point number 4.
 2   A.  Yes.
 3   Q.  Whereas in the narrative, in the precognition, it might
 4       imply, since it is combined in one paragraph, that
 5       Mr Kent would deal with both points 3 and 4.
 6           When you were putting together the precognition,
 7       what was your understanding at that time of what Mr Kent
 8       might be able to cover?
 9   A.  I thought that he would be able to -- that he was on
10       expert on fingerprints and I thought at the time when we
11       instructed him at first he was going to be able to look
12       at transplanted and fake prints and also I thought that
13       he was going to be in a position to look at the
14       comparison of the print Y7.
15   Q.  If we leave aside the question of who was going to do
16       it, what I want to do just now is concentrate on point 3
17       in the problem sheet which happens to be the first point
18       in the analysis paragraph as well.
19           Given that you understood that fingerprint evidence
20       was infallible, given that you understand that in the
21       Asbury trial a defence expert -- I'm giving you the name
22       Malcolm Graham -- a defence expert had agreed that the
23       fingerprint identification of Y7 is that of Shirley
24       McKie, can you recollect now why it was you thought
25       there might be some benefit in a further comparison by
page  74
 1       an independent expert of Y7?
 2   A.  I think it was to ensure that the investigation was
 3       complete and that every aspect had been looked at and we
 4       had information in relation to all the matters that
 5       potentially could be raised at the trial.
 6   Q.  Did you yourself have any information that might have
 7       led you to question the identification of Y7 by the
 8       Fingerprint Officers?
 9   A.  No.
10   Q.  One other document that I would like just to ask you to
11       comment on, and this looks inside Crown Office, I
12       appreciate this is a matter that you were not privy to,
13       if I take you to a document.  That is CO3933.
14           I will have to explain to you what this document is.
15       It's an internal Crown Office document.  Perhaps we
16       could bring up the next sheet and perhaps sheet 3 as
17       well.  It's an internal Crown Office document dated
18       15th January 1998.  The initials are GYC (who I
19       understand to be Ms Climie) writing to the Deputy Crown
20       Agent.
21   A.  Yes.
22   Q.  Have you seen this document before?
23   A.  I received a copy of it in documents that I got from the
24       Inquiry.
25   Q.  But you would not in the ordinary course see such a
page  75
 1       document?
 2   A.  No.
 3   Q.  What I want to do now, if we could just enlarge the
 4       second page and if I give you the background: Ms Climie
 5       is suggesting that some further investigation could be
 6       carried out and she writes:
 7           "Re the English standard for fingerprint
 8       identification being higher than that applying in
 9       Scotland, I understand that where there is a lake in the
10       ridges Scottish practice count both the top and bottom
11       as a separate identical ridge characteristic whereas
12       English practice would count this as only one toward the
13       16 being looked for."
14           There is some correspondence that suggests that
15       Ms Climie may have understood this from you and you may
16       in turn have been told by the police that there was a
17       possibility of a difference in practice between Scotland
18       and England in the application of the 16-point standard
19       for fingerprints.
20           Do you have any recollection of that?
21   A.  Obviously, there were discussions at the time between
22       myself and Gillian Climie and myself and the police and
23       perhaps even the Fingerprint Officers.  I can't now
24       remember whether that was correct, whether we talked
25       about a difference -- in general terms about the
page  76
 1       difference between Scottish and English practice.
 2           I think that it was accepted that there was
 3       differences in the methods of comparison.  I think at
 4       one point Gillian Climie referred to it being a more
 5       stringent comparison but I think it was a different
 6       comparison in that they used different methods to
 7       compare fingerprints from the officers at SCRO.
 8   Q.  The reason for alighting on this document is simply to
 9       ask you this: whether the thinking that was reflected in
10       the analysis that there might be benefit in having
11       someone else look at Y7, whether that was simply being
12       done for completeness, as you indicated earlier, or
13       whether it was being done because of a concern that, by
14       the application of a more stringent standard, a
15       different answer might be produced to the identification
16       question.
17           Can you recollect which of those two it was: simply
18       completeness or there was thought to be some more
19       stringent test that would be worth investigating?
20   A.  I think really it was to ensure that every aspect of
21       the, you know, the investigation could be complete, you
22       know, so that we had more information for Crown Counsel
23       to consider.
24   Q.  If I then take you back to the document which begins the
25       next phase, that is the 30th January document which is
page  77
 1       CO3928.  We looked previously at the second paragraph,
 2       the instruction to proceed to place her on petition,
 3       which as we know did happen.  It is the next paragraph:
 4           "In the meantime, please would you proceed as
 5       quickly as possible with the further fingerprint expert
 6       inquiry referred to in the second paragraph of page 37
 7       of the precognition."
 8           That by coincidence is the one that we looked at
 9       earlier, the typed one.
10           "A suitable English expert should be sought who
11       would give evidence regarding ... three matters.  The
12       general question of the transfer and planting; the
13       general basis for concluding that fingerprint
14       identification is 100 per cent reliable and whether on
15       examination of the fingerprint Y7 there is anything to
16       suggest that this print has been lifted from another
17       surface and transferred to the door surround."
18           I will go on with the following paragraph just in a
19       second but, dealing with those three numbered
20       paragraphs, would you accept that, as they are numbered,
21       points 1 and 3 would seem really to run together, the
22       question of transplanting and faking of fingerprints?
23   A.  Yes.
24   Q.  The second one, the general basis for concluding that
25       fingerprint identification is 100 per cent reliable,
page  78
 1       might that pick up the police concern that a jury might
 2       not appreciate the infallible nature of fingerprint
 3       evidence or would you have any other understanding of
 4       point number 2?
 5   A.  I can't recall now when the police said to me that, you
 6       know, when they raised those concerns with me
 7       particularly.  I presume, obviously, it was before the
 8       precognition was submitted.  So it would be December
 9       some time one would think.  So I presume that that
10       instruction really has come from the, perhaps as a
11       result of the paragraph relating to the police concerns.
12   Q.  My reason for stopping at paragraph 2 is there might be
13       thought to be perhaps an ambiguity in paragraph 2 as to
14       what the underlying problem was.  It could be one of two
15       things: it could either be somebody saying, "We
16       understand it to be 100 per cent reliable but we need to
17       prove that"; or the alternative is, "We don't know how
18       reliable it is.  We'll need to get somebody to tell us
19       how reliable fingerprint evidence is".
20           Do you understand the difference?
21   A.  Hmm.
22   Q.  Of those two, what would reflect your understanding of
23       the concern that was the focus of point number 2 in this
24       letter?
25   A.  Well, I think my view was that we ought to be getting --
page  79
 1       I had obviously there were discussions with Gillian
 2       Climie, phone calls, et cetera, and my view was that we
 3       should be obtaining confirmation or a comparison of
 4       fingerprint Y7, whether or not that identification was
 5       correct or not.  That was my view at the time.
 6   Q.  Sorry, I appreciate and that is the next unnumbered
 7       paragraph on the letter.
 8           "I understand from discussions with Mrs Greaves,
 9       that the English practice for identifying points of
10       similarity is more stringent than the Scottish practice.
11       If this is indeed the case, then the English expert
12       should be asked to look at Y7 and confirm that, on the
13       basis of the English practice, the print can be
14       identified as being that of Shirley Cardwell."
15           That reflects what you understood at the time; there
16       was to be a re-comparison of Y7?
17   A.  Yes.
18   Q.  I am trying to separate that from the point number 2
19       that is talking about 100 per cent reliability.  It
20       seems to have been viewed as a separate question or did
21       you view it as a separate question?
22   A.  No, and I think the two really run together that, you
23       know, perhaps if we had the comparison done by an
24       English expert then obviously that would either confirm
25       or not the position in relation to fingerprint Y7, print
page  80
 1       Y7, and thereafter we would know whether or not it
 2       was -- they were agreeing in which case presumably it
 3       would be confirmed 100 per cent and if they weren't
 4       agreeing then we would obviously have to look at that
 5       again.
 6   Q.  So what your understanding was that point 2 in the
 7       letter really ought to be read with and understood
 8       alongside the next unnumbered paragraph requiring a
 9       re-comparison of Y7?
10   A.  Yes.  I think also the expert was to be -- the expert,
11       Terry Kent, really this was obviously a letter before
12       the instruction to Terry Kent, and with that letter
13       was -- we were asking him for a number of -- to look at
14       a number of things.  One of those was the general basis
15       for concluding fingerprint identification is
16       100 per cent reliable.  So that is one of things we were
17       asking him, whether or not that was correct, and perhaps
18       in to do that we asked him to compare the print as
19       perhaps part of that process.
20   Q.  If I can bring up just the second page for the avoidance
21       of any doubt, the second page -- perhaps if we have the
22       first and second pages together -- we see the paragraph
23       at the top of the second page makes it quite clear that,
24       on arrest, Ms Cardwell was to be re-fingerprinted and
25       that it was envisaged that both the Scottish and English
page  81
 1       expert would look at this new fingerprint form.
 2       Correct?
 3   A.  Yes.
 4   Q.  Then linking the two at the foot of the first page the
 5       English expert was to be precognosced in detail
 6       regarding these various matters.  Is that correct?
 7   A.  Yes, that's correct.
 8   Q.  We will look at the instruction and the report that came
 9       in in due course from Mr Kent but, at least so far as
10       your involvement was concerned, would it correct that
11       you did not precognosce Mr Kent?
12   A.  No.  The report I think took a couple of months to
13       arrive and by that stage Crown Office were asking, you
14       know, for it and wanted to see what he had to say and I
15       sent the report and I think you will see that there were
16       a number of reminders afterwards asking whether or not
17       there was anything further that was to be asked on the
18       basis of the report.
19   Q.  We will look at that just in a second.
20           If we then look at the instruction of Mr Kent, I
21       have two references for it: CO3469 -- perhaps we can
22       bring up the two pages of that -- is an unsigned copy of
23       it dated 11th March and the other one the Inquiry has
24       used is Mr Kent's copy of it, HO0053, which happens to
25       be the signed version.  In fact, it is dated 12th March.
page  82
 1           Do you recognise your signature on the copy that's
 2       on the screen?
 3   A.  Yes.
 4   Q.  We will use, simply because we know this is the one from
 5       Mr Kent's file and it's signed by you, we will use this
 6       as the preferred copy of it.
 7           What I wanted to ask you about were the narration of
 8       points you asked Mr Kent about and they are numbered 1
 9       to 6.  Number 1, in a sense, one need not ask, a
10       narration of his expertise relative to the fingerprints
11       which may have produced the CV we have seen in another
12       context.
13           An analysis of fingerprint planting and manufacture.
14       Again, is that related to the issue of the possibility
15       of planting of Y7?
16   A.  Yes.
17   Q.  At number 3, the quality of the fingerprint Y7.  Is that
18       related to point number 2 or separate?
19   A.  I think that's probably separate.  It's really ... I
20       suppose it was overarching perhaps for everything but it
21       would have perhaps implications for everything but it
22       certainly was a separate heading that I wanted him to
23       consider.
24   Q.  Point number 4, any concerns you may have regarding the
25       fingerprint Y7.  Almost a sort of kitchen sink approach,
page  83
 1       anything else you may care to think?
 2   A.  Yes.
 3   Q.  Could we read together 2, 3 and 4 as related, broadly,
 4       to the question of planting and faking and that sort of
 5       matter or were you intending it to be broader than that?
 6   A.  No, I think it was probably really in relation to the
 7       faking and planting but, again, as I've said already,
 8       perhaps 3 and 4 would maybe relate to other matters as
 9       well that there could be implications in those areas for
10       further issues that he might raise.
11   Q.  Point number 5 merits separate consideration.  The
12       letter from Crown Office had referred to 100 per cent
13       reliability.  Is this what you were transposing in point
14       number 5:
15           "Any comment that you may wish to make on the SCRO
16       16-point comparison of fingerprints and the statistical
17       basis for duplication of fingerprints."
18           Was that related to 100 per cent reliability or was
19       this something separate?
20   A.  I think the first part of it looks -- that probably
21       related to the 100 per cent reliability of the 16-point
22       comparison of fingerprints.  The statistical basis for
23       duplication of fingerprints, I think, probably relates
24       to the faking part.
25   Q.  Might it be that what you're asking there is if by
page  84
 1       duplication of fingerprints it might be the possibility
 2       that a fingerprint may be duplicated, ie two individuals
 3       may have the same fingerprint, you want to know the
 4       statistical basis for concluding that two individuals do
 5       not have the same fingerprint?
 6   A.  I don't think.
 7   Q.  You don't think so?
 8   A.  No, I don't have any recollection of having considered
 9       that.
10   Q.  I didn't hear that?
11   A.  I don't have any recollection of considering that may
12       have been a possibility.
13   Q.  So far as the first part, what was the matter that you
14       wanted him to comment on in relation to the SCRO
15       16-point comparison of fingerprints?
16   A.  It was really in connection with whether it was an
17       appropriate comparison, whether the 16-point comparison
18       was reliable and whether or not it was perhaps the best
19       method of comparison that was available.
20   Q.  Does that relate to or is it consistent with the theme
21       that in England there may have been a more stringent
22       approach or is it something separate?
23   A.  I haven't mentioned the English system there.  I haven't
24       asked him to compare it with the English system
25       particularly there.
page  85
 1   Q.  So is it unrelated then to that question?
 2   A.  I think it was really for him to comment on the
 3       comparison that had been done and whether or not he felt
 4       that there were shortcomings in that or not.
 5   Q.  With that in mind then, is it in fact related,
 6       therefore, to point number 6:
 7           "If you are able to make any comment on the identity
 8       of the fingerprint compared with Shirley Cardwell's
 9       fingerprint form this should also be included."
10   A.  I think by that -- perhaps I haven't worded it very
11       well -- but what I wanted him to do was to make
12       comparison between the two fingerprints or the print Y7
13       and the fingerprint form.
14   Q.  What I'm just having some difficulty understanding just
15       now is what point 5 is adding to point number 6.  I take
16       your point that point number 6 is really saying to him
17       would he reconsider and re-compare Y7 against Ms
18       Cardwell, Ms McKie, what is point number 5 adding to
19       that, if anything?
20   A.  I think it was a more general question, just to comment
21       on the 16-point comparison method.
22   Q.  So a more general point.  If we then bring up for you,
23       please, Mr Kent's report, it is CO3876.  This is the
24       covering letter of 13th May 1998.  It's there he makes
25       it clear by the way he types his name he is Mr Kent.
page  86
 1           Then if we move to the report itself and perhaps
 2       bring up the next sheet as well please.  There are going
 3       to be three sheets, I'm afraid.  It is probably reduced
 4       to the point where it is barely legible now but do you
 5       remember receipt of the report by Mr Kent in May?
 6   A.  Yes.
 7   Q.  If I can be quite short about it, if I understand it
 8       correctly, Mr Kent is really talking in this report
 9       about the theme of planting and faking of prints?
10   A.  Yes.
11   Q.  What he indicated was he was not qualified to carry out
12       a re-comparison of Y7?
13   A.  Yes.
14   Q.  That's point 33.  Perhaps if we bring up the last sheet.
15   A.  Yes.
16   Q.  Point 33.  Then if we also on the second sheet,
17       highlight paragraph 9.  In paragraph 9 he's giving a
18       view about the sequence of events that he had understood
19       Y7 to have been more probably put on the doorframe after
20       the aluminium powder dusting by Scenes of Crime
21       Officers?
22   A.  Yes.
23   Q.  If I understand it correctly, he did not answer,
24       therefore, point 6 in your letter.  He was unable to
25       answer the question of the comparison of Y7?
page  87
 1   A.  Yes.
 2   Q.  And, equally, there was nothing in his report about the
 3       more general question, point number 5, about the SCRO
 4       approach to the 16-point standard?
 5   A.  That's correct.
 6   Q.  You have been asked about the handling of Mr Kent's
 7       report and your own covering letter, which is CO3463.
 8       Again, perhaps if we could bring up the second page.
 9           This is the covering letter under which you
10       forwarded to Crown Office the report that you received
11       from Mr Kent.  Is that correct?
12   A.  Yes.
13   Q.  Before I ask you about this, if I could just stop there
14       just now and we'll just work back.
15           Before you instructed Mr Kent, had you had
16       conversations with him?
17   A.  Yes.  I had had some conversations with him but I think
18       my recollection now is that largely they were about the
19       logistics of getting the piece of wood that had print Y7
20       on it down to him.  We did have some discussions about
21       the background I think to the case and why we needed his
22       expert opinion, but a lot of the -- or a number of the
23       conversations were about getting the print, the piece of
24       wood down to him because it couldn't be sent, obviously,
25       in the normal practice with, you know, with couriers or
page  88
 1       anything like that.
 2   Q.  Do I take it, therefore, it was not until you got his
 3       report in the middle of May that you appreciated he was
 4       not able to do the re-comparison of Y7?
 5   A.  Yes.
 6   Q.  Looking at the letter of 15th May, the first paragraph,
 7       encloses it.  The second says you return the
 8       precognition and copy productions for the information,
 9       in fact, of Crown Office, Ms Climie.
10           You then write:
11           "The only part of Mr Kent's report which causes any
12       concern is page 2, paragraph 9", that we looked at.
13           Then you go on in some detail to make the strict
14       observation that at the same time that Y7 was found a
15       number of prints identified as the deceased were found
16       and that led you to question the theory of not only
17       Mr Kent but yourself to this point that Y7 must have
18       come on to the doorframe after the aluminium dusting
19       because plainly the deceased's prints couldn't first
20       have come on at that stage.
21           I am not in any way criticising the astute
22       observation; quite the reverse.  What I am interested
23       though in the letter is what you pick up in the report
24       to Crown Office is that was the one point that caused
25       you concern.  You don't flag the fact that Mr Kent had
page  89
 1       not compared Y7.
 2   A.  I realised that when I was reading it and obviously
 3       hindsight's a great thing when you're reading over a
 4       letter you have written a number of years ago.
 5           As I said before --
 6   Q.  You may actually have to move the microphone closer to
 7       yourself.
 8   A.  As I said before, now when people are e-mailing there's
 9       quite often a lot more detail, just thought as it's
10       coming to you, than will be included in letters.  At
11       that time a lot of, sort of, discussions were by phone
12       and, I mean, I don't think for a moment -- but I know
13       that I did discuss with Gillian Climie about the fact
14       that there had been no comparison done.  We did talk
15       about that on the phone but, obviously, I haven't put it
16       in the letter.
17   Q.  Just looking at matters down to this point, we have the
18       situation where you understand fingerprint evidence to
19       be infallible, you have that understanding, a number of
20       other practitioners would share that view and the police
21       share that view, you know a defence expert has already
22       agreed the identification apparently of Y7 as that of
23       Ms McKie so you have that independent confirmation.  The
24       defence is thought at this stage to be planting, not a
25       challenge to the identification of Y7.
page  90
 1           Why would it be that you would still think that the
 2       fingerprint Y7 should be re-compared?
 3   A.  Well, I think so that there was a second opinion really.
 4   Q.  Without going through the detail, my reason for saying I
 5       would look at the period from March through until the
 6       point in January of the re-indictment is you are aware,
 7       having seen some of the material, you cover in your
 8       precognition, that there is correspondence and telephone
 9       contact going backwards and forwards with the Crown
10       Office between this point in May and the end of November
11       with a view to the possibility of going back to Mr Kent.
12   A.  Yes.
13   Q.  Again, one of the reasons for matters halting is that
14       Mr Kent still held the doorframe.
15   A.  Yes.
16   Q.  The defence, through solicitors Levy & McRae,
17       wanted access to the doorframe.
18   A.  Yes.
19   Q.  They couldn't while Mr Kent held it?
20   A.  That's correct.
21   Q.  And until Crown Office said there was no need to go back
22       to Mr Kent for further matters to be raised, you
23       couldn't get the release of the doorframe?
24   A.  Yes.
25   Q.  Again, what I put to you as the suggestion is that the
page  91
 1       focus of that might be, on following up this question
 2       about the precise sequence of events concerning the
 3       powders on the doorframe and the possibility that Y7 was
 4       on before or after the aluminium dusting, that would be
 5       a reason for looking at the doorframe?
 6   A.  I think that was one of the reasons -- that was the
 7       reason why Terry Kent was asked to hold on to it until I
 8       got Crown Counsel's instructions I felt that it was --
 9       the matters that I raised in my letter of 15th May I
10       felt that perhaps there was further matters Crown
11       Counsel might want to raise with Terry Kent.
12           In the background was the fact that we may wish the
13       piece of wood to be returned so we could have some
14       further work done but I mean I haven't recorded that
15       particularly clearly.
16   Q.  One point you have mentioned it is very important to
17       spell out: as you're aware, the material that you have
18       been shown is material that is in your name, some of
19       your own notes and the person within Crown Office is
20       Gillian Climie.
21   A.  Yes.
22   Q.  I am told I don't necessarily have all of the material
23       but the key point I wanted to spell out from what you
24       have said is the reference to Crown Counsel.
25   A.  Yes.
page  92
 1   Q.  In relation to the issues that you were raising with
 2       Ms Climie about the sufficiency of Mr Kent's report, do
 3       you really mean that you would understand these matters
 4       to be determined by Crown Counsel, that is by an
 5       Advocate Depute?
 6   A.  Yes.  Gillian Climie was an indicter in Crown Office and
 7       it was the indicters who liaised with Crown Counsel to
 8       receive instructions.
 9   Q.  I appreciate the way I ask the next question might imply
10       criticism and I don't mean this at all: with an
11       indicter, a Procurator Fiscal such as Ms Climie, would
12       you expect a Procurator Fiscal to be taking the ultimate
13       decision in relation to the questions that you are
14       raising or would you expect these matters to be taken up
15       with Crown Counsel?
16   A.  What I think you saw earlier was a note from Gillian
17       Climie and what I would have expected with it -- she
18       would have considered the issues that I'd raised and
19       then would have done a note to Crown Counsel and sought
20       instructions.
21   Q.  If I look at just some of the later material -- I will
22       not take you through all of the material -- but if I
23       look at document CO3460.  This is a letter from
24       Levy & McRae of 9th June, in effect, chasing you up for
25       them to get access to the door.
page  93
 1   A.  Hmm.
 2   Q.  Is the handwriting your own?
 3   A.  Yes.
 4   Q.  You record that you spoke to Ms Climie on 17th August?
 5   A.  Yes.
 6   Q.  Do you write:
 7           "She will re-read report and advise of any further
 8       matters ...", is it required?
 9   A.  Yes, "... required clarification prior to return of the
10       piece of wood and other productions."
11   Q.  So " ...any further matters require clarification prior
12       to return of" --
13   A.  I think that's, "if", "... if any further matters
14       require clarification".
15   Q.  "... and advise if any further matters require
16       clarification ..."  I am grateful.
17           So this would be a contemporaneous record that you
18       wrote of a conversation you had with Ms Climie --
19   A.  Yes.
20   Q.  -- in August.  Again, if I move you on to 3456, on
21       10th September you're writing to Ms Climie and we can
22       read for ourselves that you're asking if Crown Counsel
23       are satisfied with the terms of Terry Kent's report or
24       if any further enquiries require to be made?
25   A.  Yes.
page  94
 1   Q.  So you are following up, in effect, the chasers that
 2       have been sent by Levy & McRae?
 3   A.  Yes.
 4   Q.  Again, one of the themes I had asked you about earlier
 5       you are writing here what we have understood would be
 6       the position: you would be expecting Crown Counsel to
 7       take a view on these matters?
 8   A.  Yes.
 9   Q.  If I then move to 3788, that was 10th September.  Is
10       this a note in your writing?
11   A.  Yes, it is.
12   Q.  Just to explain the top half, it's:
13           "Sharon, please BU case."
14           What does "BU" mean?
15   A.  Bring up -- just to pass the papers to me.
16   Q.  So you're asking someone in the --
17   A.  Sharon was my admin staff at the time and I was asking
18       her to bring those papers forward for me to review the
19       case to find out whether I'd got a response to my
20       earlier letter.
21   Q.  So initially you were asking the administration to bring
22       the papers back to you on 25th September so you could
23       follow it up?
24   A.  Yes.
25   Q.  You plainly had a conversation with Ms Climie on 29th
page  95
 1       September.
 2   A.  Yes.
 3   Q.  And then you revised the instruction that it was to
 4       be brought back to you again on 25th October?
 5   A.  Yes.
 6   Q.  Again, would this be a contemporaneous -- the second
 7       half -- record of your conversation with Ms Climie?
 8   A.  I would have expected so, yes.
 9   Q.  "She will write to me with instructions re Terry Kent's
10       report."
11   A.  Yes.
12   Q.  That was your expectation.
13   A.  Those would have been Crown Counsel's instructions.
14   Q.  Yes.  Then if I pass over the various chasers and come
15       then ultimately to 9th November -- that is at 3451 --
16       this, at least in my understanding, is how matters ended
17       on 9th November.  You wrote to Levy & McRae that you
18       have now received instructions to request the return of
19       the productions from PSDB.  If I just say that's the
20       Police Services development division?
21   A.  Yes.
22   Q.  Mr Kent's department?
23   A.  Yes.
24   Q.  You must have received an instruction by 9th November?
25   A.  Yes.
page  96
 1   Q.  Now, plainly, I have not shown you a copy of any
 2       instruction from Crown Office and I don't have a
 3       document to show you.  Do you have any recollection
 4       whether that instruction came by  phone or by letter?
 5   A.  No.  No, I can't recall it.
 6   Q.  Do you have any recollection of what the instruction
 7       actually was from the Crown Office?
 8   A.  No, I can't recall now.  Simply obviously the return of
 9       the productions, that the piece of wood was to be --
10       arrangements were to be made for it to be brought back
11       to Scotland.
12   Q.  So, in effect, the only --
13   A.  But I didn't -- sorry.  I didn't get any instruction to
14       speak to Terry Kent again.
15   Q.  So you had no instruction to precognosce Mr Kent again?
16   A.  No.
17   Q.  No instruction to go back to him for a follow-up report?
18   A.  No.
19   Q.  No instruction to go to anybody else to complete the
20       task of a re-examination of Y7?
21   A.  That's correct.
22   Q.  And, in effect, this ends -- the document that I have --
23       is it ends really with a record taking up where matters
24       had begun with Levy & McRae, saying "It's now free for
25       you to get access to the doorframe because I don't need
page  97
 1       any further enquiries in relation to it"?
 2   A.  That's what I've said here, that I'll contact you once
 3       the production was returned and to let them have access.
 4   Q.  Because you have no recollection of the instruction --
 5       and this is no criticism of you because it is, after
 6       all, 11 years ago or the better part of 11 years ago --
 7       I understand Ms Climie, first of all, she has no
 8       recollection of the correspondence and the telephone
 9       calls we've actually just looked at.  She has no
10       recollection of those herself.
11           But, beyond that, what she says is that by
12       September/October she had moved from the High Court Unit
13       as an indicter to the Appeals Unit and did not in fact
14       have active involvement in the case until the festive
15       period when it was passed to her, as someone familiar
16       with the case, to indict.
17           Is it possible, therefore, that the matter ends, as
18       we see in November, in fact by somebody else having been
19       involved in Ms Climie's absence?  Is that possible?
20   A.  Possible but I can't recall anybody else -- I can't
21       recall corresponding with anybody else, although I know
22       that Gillian was in the Appeals Section.  I don't doubt
23       what she's says.
24   Q.  Indeed, by the time this matter comes to a head, had you
25       yourself moved from the Police Complaints Unit to
page  98
 1       another part of the Fiscal Service?
 2   A.  I, in fact, moved from the Complaints Against the Police
 3       Unit just after the submission of the first submission
 4       of the precognition because I think correspondence in
 5       January 1998 is from me and I think if there's anything
 6       from me it will be in --
 7   Q.  Is it the solemn --
 8   A.  The Solemn Team, yes.  I think the only thing that's
 9       there is maybe not a letter from me, but there's a
10       notation on one of the copies of the letter from Gillian
11       Climie to me dated 30th January and it says -- it's
12       circled "Denice Greaves, Complaints Against the Police
13       Unit" and it says "second floor 242".  That's the room I
14       was in as Team C.  So by the end of January 1998 I was
15       no longer in the CAPS Unit.
16   Q.  So, in fact, the correspondence that we have been
17       looking at latterly from the point when a decision was
18       issued by Crown Office to proceed against Ms McKie all
19       the way through to November you're dealing with it while
20       you're, in fact, in another unit?
21   A.  Yes.  I think that may have been -- you will see there's
22       also at some points the reference changes and goes from
23       being a 97 number, I think, which was the Complaints
24       Against the Police number.  It was C CAP number and then
25       97 and the number.  Then I think later on there's
page  99
 1       another reference which is a 98 number which I think may
 2       have been the perjury case number.
 3   Q.  If you look at what just happens to be on the screen now
 4       at 3451, the middle row really where the reference is
 5       you have "our reference DMGLG/98"?
 6   A.  Yes.
 7   Q.  And that's the indication of it as a perjury case?
 8   A.  Yes.
 9   Q.  What I wanted to move to, just to finish this particular
10       sort of chapter, is something that you refer to in
11       paragraph 12 of your statement as the "fall-back
12       position".  We have got to the stage where, as you
13       indicate, Mr Kent has not expressed an opinion on Y7.
14       You have no instructions to follow the matter up.
15           You refer in paragraph 2 to a "fall-back position".
16       Do you have that?
17   A.  Yes.  Yes, it sounds a bit casual, I have to say --
18   Q.  Sorry?
19   A.  It sounds a bit slightly casual, being a fall-back
20       position, but what I really meant was that there had
21       already been independent consideration by the
22       fingerprint expert instructed in the David Asbury case
23       for the defence, that comparison had been done, and also
24       I think at a later stage I think I received -- I had a
25       conversation with somebody at Levy & McRae to the effect
page 100
 1       that their comparison, the comparison that they were
 2       instructing, didn't have any new information to --
 3   Q.  You indicate your statement -- and I will not need to
 4       take you to the detail -- that at some point you had a
 5       conversation with Levy & McRae, you think perhaps in
 6       1998, understanding that Mr Swann had been instructed
 7       and the impression you were given by Levy & McRae is
 8       that Mr Swann had confirmed the identification.
 9   A.  That was my understanding, yes.
10   Q.  What I want to just be clear about -- and, please, again
11       if this is pressing your memory, just indicate -- we
12       have the situation in which an independent re-comparison
13       of Y7 is in effect dropped, it is not pursued.
14           What I am wondering is whether you actually had a
15       conversation with someone in Crown Office along the
16       lines that it was no longer necessary because Crown
17       Counsel were satisfied by the independent defence
18       experts or --
19   A.  I can't recall a conversation specifically about that
20       but, I mean, obviously everybody was aware that there
21       was the report, the defence expert report, in the Asbury
22       case that was there.
23   Q.  Again, I imply no criticism: as you say, a "fall-back
24       position" is a somewhat loose expression.
25           Do you have a recollection of a conversation or was
page 101
 1       it just the impression or a rationalisation of the
 2       position that you think that somebody may have been
 3       thinking there was no need for a re-comparison because
 4       of these independent experts?
 5   A.  No, I don't have a recollection of specific
 6       conversation, no.
 7   Q.  You have no recollection of --
 8   A.  No, not a specific conversation but, as you say,
 9       perhaps, you know, a general awareness that that was the
10       position.
11   MR MOYNIHAN:  Sir, that would be an appropriate point.
12   THE CHAIRMAN:  We will sit again at 1.50.
13   (1.00 pm)
14                     (Luncheon Adjournment)
15   (1.50 pm)
16   MR MOYNIHAN:  Mrs Greaves, in relation to the fall-back
17       position, just on a point of detail, the defence expert,
18       as I said, if I use the names I'm aware of: Malcolm
19       Graham I understand had been the David Asbury defence
20       expert, Mr Swan is the individual with Levy & McRae and
21       therefore for Ms McKie.
22           Is it possible that when you spoke to Angela
23       McCracken that there was no mention there of the opinion
24       that Mr Swann had expressed, simply that Mr Swann had
25       been instructed or did you understand from Angela
page 102
 1       McCracken that Mr Swann had, indeed, agreed the
 2       identification?
 3   A.  I thought the latter.  I may be mistaken now after the
 4       passage of time but my own recollection is that it was
 5       the latter.
 6   Q.  What I will do is leave this particular point to be
 7       tidied up by my learned friend, Mr Smith --
 8   THE CHAIRMAN:  Is your microphone on?
 9   MR SMITH:  I was just saying I couldn't hear properly with
10       the microphone.
11   MR MOYNIHAN:  Sorry.  If you could move the microphone
12       closer to you.  It's actually not a very efficient
13       microphone.
14           So you have a recollection about being told
15       something about Mr Swann?
16   A.  Yes.
17   Q.  It's when in the point of time.  You indicate in your
18       statement that it would be about the time when Ms McKie
19       was placed on petition, which we know was March 1998.
20   A.  No, it definitely wasn't then.  It would be much later
21       than that.  It would be just I think before the trial,
22       that sort of period.
23   Q.  So if we know that, in fact, Mr Swann examined exhibits
24       in March 1999 -- that's between the abortive first trial
25       diet and the trial that actually proceeded -- is it
page 103
 1       possible you got this information from Levy & McRae in
 2       1999?
 3   A.  Yes, I think it was around in the lead-up to the trial.
 4   Q.  That's fine.
 5           While we are also just on the question of experts,
 6       there was another gentleman who became involved, a
 7       Mr Wertheim, an American expert.
 8   A.  Yes.
 9   Q.  You have already told us you yourself were not involved
10       in the trial itself?
11   A.  No, not at all.
12   Q.  We have had some evidence that some enquiries were being
13       made about Mr Wertheim and his background and Chief
14       Inspector Hogg, who was one of the individuals you had
15       taken statements from, said he had been making some
16       enquiries in relation to Mr Wertheim.
17           Did you have any involvement in any enquiries in
18       relation to Mr Wertheim's background?
19   A.  No, not at all.
20   Q.  Were you involved in any active preparation in the
21       immediate run-up to the trial that proceeded in
22       April/May?
23   A.  No.
24   Q.  There are two other points I wanted to ask you about
25       that are related.  In the evidence, the statement you
page 104
 1       have given, you have been asked to comment on
 2       enlargements.  If I can again bring up just as an
 3       example for you DB0011.  This happens to be production
 4       180.  If I move to the last page, these are, as the
 5       legend describes them, enlargements.
 6           Are you familiar with these particular documents?
 7   A.  Yes.
 8   Q.  Do you recognise these as items that at that time in
 9       1997 were routinely prepared in fingerprint cases or do
10       you not know?
11   A.  My recollection was that I think as I said in my
12       statement that -- could I just ask, before I say this,
13       some of the productions that were used in the trial of
14       Shirley McKie were actually taken directly from
15       instructions in the case of David Asbury and I'm not
16       sure now whether this was one of those productions from
17       the David Asbury case that was renumbered for the
18       Shirley McKie case or whether this is a new production.
19       I don't have a recollection of that now.
20           But the fingerprint evidence in the David Asbury
21       case and, consequently, in the Shirley McKie case was
22       very much more detailed than anything that I'd ever seen
23       prepared for court before by SCRO.
24   Q.  Just in case it makes any difference to you, if I
25       explain, production 180, as far as I'm aware, was not a
page 105
 1       production in the David Asbury case and one of my
 2       reasons for asking about it earlier is there is a degree
 3       of uncertainty when it first came into existence and for
 4       what purpose but it was certainly a production in the
 5       McKie perjury trial, if that assists.
 6   A.  Right.
 7   Q.  As you say, the information was more detailed than might
 8       have been the case in other trials but at least as a
 9       style of production to illustrate a fingerprint
10       officer's evidence, were you familiar with it?
11   A.  I think this was the same sort of style that was used in
12       the David Asbury case, yes.
13   Q.  In fact, if you give me just a second ...  (Pause)
14   THE CHAIRMAN:  Was it a fairly standard form of production?
15   A.  Not really, no.  They were much more detailed in this
16       case or in the David Asbury case than in any case I'd
17       previously been involved in.  The productions were
18       prepared but they weren't -- you know, there was a lot
19       more detail, I think, produced in the ones for the David
20       Asbury case and much more detail of the mark, you know,
21       the markings on them.
22   THE CHAIRMAN:  Than you have seen before?
23   A.  Yes.
24   MR MOYNIHAN:  If I give you another document, one that I can
25       be quite clear about the dates, if we look at DB0012,
page 106
 1       this is production 189 and is one of the productions in
 2       Ms McKie's case.  If we go through to the third page, we
 3       see production 189 in the McKie case.  If we carry on
 4       again to a booklet with photographs, in fact, of Y7 and
 5       in the final sheet, again, a similar charting.  Now, as
 6       far as I am --
 7   A.  That's more normal, the photograph of where the
 8       impression's been found and then a fingerprint
 9       impression with certain marks on it but not nearly as
10       many as that.
11   Q.  If I put at the top perhaps the current page and then
12       put beneath it page 5 of this document, the way I think
13       it will be displayed would be these two side-by-side
14       with the images, as you have said, of Y7 in its location
15       and then these enlargements produced to illustrate the
16       concurrence of 16 points.  It's something of that sort
17       you've seen before?
18   A.  Yes.
19   Q.  What I want to ask you about just to be really clear, in
20       the meetings that you had with Mr Stewart and
21       Mr Macpherson, was there any suggestion made by either
22       of them that the 16 points illustrated on page 6 (that's
23       the top of this screen) would not be accurately to be
24       found by looking to the ends of the lines?
25   A.  The lines onto the fingerprint?
page 107
 1   Q.  Perhaps, if we just enlarge page 6 and we take the
 2       right-hand image, for example, and just enlarge it, you
 3       will see, for example, if I take point number 10 a red
 4       line coming from outwith the photograph going into the
 5       photograph and ending at a particular point and the same
 6       for number 11 --
 7   A.  Yes.
 8   Q.  -- did any of the witnesses suggest to you or tell you
 9       that, because of the technology involved, there might be
10       what we have come to call "slippage"; that is, that the
11       computer might not accurately plot a particular feature
12       that the fingerprint officer wanted to highlight?
13   A.  I don't recall that, no.
14   Q.  While we also have that up on the screen, you spoke to
15       Mr Stewart and Mr Macpherson.  If I bring up
16       Mr Macpherson's precognition, perhaps if we could put
17       page 6 just to the right, just now, and then bring up on
18       screen CO2624.  I am interested in the third paragraph
19       where it says:
20           "I was allocated this case involving the death of
21       Marion Ross by Chief Inspector O'Neill and I worked with
22       Fingerprint Officer Alister Geddes.  Charles Stewart was
23       also involved."
24           Now, you did precognosce Charles Stewart.
25           Was there any indication given to you that would
page 108
 1       give rise to a need to precognosce Mr Geddes?
 2   A.  Not at that particular time.  Obviously, I didn't -- I
 3       don't think I did precognosce him.
 4   Q.  You don't think you did?
 5   A.  No.
 6   Q.  You plainly understood the Fingerprint Officers to be
 7       working to a standard of 16 points in sequence and
 8       agreement as is shown in the image.
 9   A.  Yes.
10   Q.  Did they tell you that any of the other Scottish
11       Criminal Record Office staff had been unable to agree
12       the presence of the 16 points?
13   A.  No.
14   Q.  So they didn't tell you Mr Geddes saw only 10?
15   A.  No.
16   Q.  Mr Mackenzie saw between 10 and 13?
17   A.  No.
18   Q.  Mr Dunbar saw perhaps more than 10 but less than 16?
19   A.  No.
20   Q.  That Mr Bruce saw 8?
21   A.  No.
22   Q.  And Mr Foley saw 10?
23   A.  No.
24   Q.  If that information had been given to you -- and let me
25       make it quite clear, what could have been explained to
page 109
 1       you is all of the officers I have mentioned are in
 2       agreement that Y7 is Shirley McKie's fingerprint but no
 3       one of those officers, at least at the point when they
 4       are making the identification, were able to satisfy the
 5       16-point standard, they were able to see a lower number,
 6       between 8 and 13 -- would you have been interested in
 7       knowing that?
 8   A.  Yes, I would.
 9   Q.  What would you have done had you been told that?
10   A.  I would have mentioned it in the precognition,
11       obviously.  So obviously it would be a matter for Crown
12       Counsel to consider the veracity of the fingerprint
13       evidence and it perhaps might have had a different
14       emphasis or laid a different emphasis on the obtaining
15       of an additional independent report.
16   Q.  The precognition, if I assist, does disclose that there
17       had been re-photographing of Y7 at various stages.  Did
18       you hear of something called a blind test or a blind
19       comparison having been carried out?
20   A.  I don't have any recollection of that.
21   Q.  If you had been told that some officers had been asked
22       to test the identification of Y7 and had undertaken a
23       specific exercise, if that had been told to you, is that
24       something of such importance that we would find it
25       referred to in your precognition?
page 110
 1   A.  Yes, I would have put that in the precognition.
 2   Q.  Again, I think --
 3   A.  Depending on -- obviously, depending on -- if there had
 4       been some blind testing and, you know, that the results
 5       had not been favourable, I would have probably put it in
 6       anyway, but if the results had not been favourable then
 7       it would have been particularly relevant.
 8   Q.  The final piece that I wanted to just ask you about is I
 9       have given you the name of Mr Graham as the individual
10       involved in the Asbury case where there was the
11       fall-back position.
12           Did you yourself give consideration to precognoscing
13       that expert?
14   A.  I didn't precognosce him myself and one of the things
15       that I was, you know, I was expecting after I sent the
16       report, Terry Kent's report, I was expecting I would be
17       asked to do further work in relation to his report, to
18       precognosce him, perhaps matters to be raised and
19       perhaps further investigations to be carried out, for
20       instance, speaking to an independent expert or asking
21       somebody else to do that and none of that ever happened.
22   Q.  If I can just play this on, first of all, just for
23       completeness, Mr Asbury's appeal was still pending at
24       this stage.
25   A.  Yes.
page 111
 1   Q.  So whether you would have got permission to precognosce
 2       Mr Graham is perhaps a moot question.
 3           Would that be fair?
 4   A.  Well, I mean, I would have expected an instruction in
 5       relation to that, yes.
 6   Q.  But whether the defence would give you permission to
 7       precognosce Mr Graham would perhaps be a moot question?
 8   A.  Yes.
 9   Q.  If I take you, please, to a document CO0003 and I think
10       for me it is PDF page 18, if I give you just a chance I
11       won't read it out but the middle paragraph:
12           "Malcolm Graham maintains ..."
13           I will give you a chance to read that.  (Pause)
14   A.  Okay.
15   Q.  Again, I appreciate you didn't get instructions to
16       precognosce Mr Graham and you didn't precognosce
17       Mr Graham.  If what is recorded in this paragraph had
18       been drawn to your attention at the time, would that
19       have been significant to you?
20   A.  Well, I think certainly the last line would have raised
21       some concerns for me.
22   Q.  The last line being this that SCRO might have gone wrong
23       in some respect?
24   A.  Yes.
25   Q.  If I put this in a positive way, would that have
page 112
 1       reinforced in your mind the need for an independent
 2       check of Y7?
 3   A.  I always thought we should have an independent check
 4       anyway.
 5   MR MOYNIHAN:  I have no further questions.  Thank you.
 6   THE CHAIRMAN:  Mr Holmes, have you any application for this
 7       witness?
 8   MR HOLMES:  There are a couple of matters I would like to
 9       ask the witness.  The first relates to the time of the
10       discovery of Mr Swann's involvement and the remainder
11       are matters that I would like to expand on from
12       questions that have been asked this morning.
13   THE CHAIRMAN:  This is really expansion of what has been
14       covered.
15                   Cross-examined by MR HOLMES
16   Q.  Can I ask, you say in your statement that you were aware
17       of Peter Swann's involvement from the petition stage of
18       Ms McKie's case.  It is paragraph 19, if you have a copy
19       in front of you.
20   A.  I think they probably had said to me that they were
21       instructing him as an expert at that stage.
22   Q.  When is it that you became aware that he confirmed
23       SCRO's finding with regard to Y7?
24   A.  That was much later.
25   Q.  Do you recall when?
page 113
 1   A.  As I said, it may be in the lead-up to the trials at
 2       that time.
 3   Q.  But it's prior to the trial?
 4   A.  Just prior to the trial, yes.
 5   Q.  Did you inform the Trial Depute that a defence expert
 6       had confirmed SCRO's findings?
 7   A.  No, I wasn't in contact with the Crown Counsel in the
 8       case at that stage.
 9   Q.  The Trial Depute has given evidence here to the effect
10       that he was not aware that Mr Swann had been involved
11       until such time as Ms McKie herself was giving evidence.
12           Should he not have been informed by someone that a
13       defence expert had confirmed SCRO's findings?
14   A.  Well, perhaps in hindsight, yes, that would have been
15       appropriate but the conversation I think that I had with
16       the person from Levy & McRae at the time was dealing
17       with a number of matters in the lead-up to the trial and
18       it wasn't really -- it was perhaps a remark that was
19       made in passing as opposed to anything other than that.
20       We didn't -- as far as I'm aware, there was no copy
21       report or anything submitted to us.
22   Q.  But does the fact the defence expert has confirmed the
23       findings of the Crown's experts not substantially
24       strengthen the Crown's case at that stage?
25   A.  Well, I suppose it would have but, to be honest with
page 114
 1       you, I don't have a good recollection of what happened
 2       in the days -- at the time.  It is a long time ago.
 3       It's not the only case I was dealing with, obviously.
 4   Q.  So as far as you recall nobody advised the Trial Depute
 5       that Mr Swann had confirmed SCRO's findings?
 6   A.  I didn't.
 7   Q.  The second matter I would like to ask you about is a
 8       question you were asked earlier on today.  For those
 9       using LiveNote it is at page 68, line 12.  You were
10       asked whether it was rare for Fingerprint Officers to
11       attend as witnesses and I think the reason for that is
12       their evidence was routinely agreed.
13           It's still rare to Fingerprint Officers to attend as
14       witnesses, isn't it?
15   A.  Yes.
16   Q.  The second question that you were asked that I would
17       like to expand upon is for those using LiveNote page 74
18       of today's transcript in line 17.
19           You were asked about the difference between the
20       standards in Scotland and in England and you say during
21       your answer:
22           "I think that it was accepted that there was
23       differences in the methods of comparison."
24           Can you tell me why?  Who was it who accepted that
25       there were differences?
page 115
 1   A.  I'm sorry, I can't hear you.
 2   Q.  Who accepted that there were differences between the
 3       methods of comparison in Scotland and England?
 4   A.  Mmm.
 5   Q.  You say in your answer this morning that it was accepted
 6       that there were such differences but do you know who it
 7       was who accepted there were such differences?
 8   A.  I think the police mentioned it to me.  I think, was
 9       it ... it was Chief Inspector Iain Hogg, I think, it was
10       that I spoke to.  Possibly him, because he was the
11       person that was dealing with it in relation to the
12       fingerprint information.
13   Q.  It's quite a lengthy question and quite a lengthy
14       answer.  When you refer to differences in methods of
15       comparison are you referring to differences between what
16       one fingerprint officer would regard as a characteristic
17       and another fingerprint officer would regard as a
18       characteristic?
19   A.  Yes, I think that's probably fair.
20   Q.  So it's not necessarily that there are differences in
21       the method of comparison.  That could be entirely the
22       same between Fingerprint Officers in Scotland and in
23       England and, indeed, between Fingerprint Officers in
24       1997 and now?
25   A.  I'm sorry I can't actually see what you're saying.
page 116
 1   Q.  What Fingerprint Officers actually do in order to
 2       compare a fingerprint could be entirely the same, it's
 3       just that you understood the differences to exist
 4       between what they would recognise as a characteristic?
 5   A.  Yes.
 6   Q.  Again, for those using LiveNote at page 77 of today's
 7       transcript, in line 12 you say that your view was that
 8       you ought to be getting -- you were cut off there but
 9       you are referring to a further expert report.  You say
10       that you had obviously discussions with Gillian Climie,
11       phone calls, et cetera.
12           Is there any note of any phone call between yourself
13       and Ms Climie regarding the possibility of getting a
14       further report after Mr Kent's report came back?
15   A.  No, there's nothing there.  Nothing in the
16       correspondence that's there.
17   Q.  I ask because Ms Climie's recollection is somewhat
18       different.  Her statement is FI0075.  It is at page 7,
19       paragraph 14.  Ms Climie says:
20           "I have no recollection of any discussions with
21       Denise Greaves about the fact that Terry Kent had
22       indicated that he was not able to give a view on the
23       identification of Y7 and I do have to doubt that such
24       discussions took place."
25   A.  I think perhaps Gillian Climie has a different
page 117
 1       recollection from me obviously and that's, you know, it
 2       has been a long period of time since -- the passage of
 3       time.  But the report clearly didn't have a reference to
 4       a comparison of Y7 from Terry Kent and that was one of
 5       the things that Crown Counsel had initially instructed
 6       had to be done.  So I mean, my recollection is that we
 7       did discuss things informally as well as putting them
 8       down in letters.
 9   Q.  It's not something that there was no other independent
10       verification of Y7, was there?
11   A.  Apart from the expert from the David Asbury case.
12   Q.  The final thing I'd like to ask you about was that you
13       were asked fairly recently about the number of points
14       that the various SCRO experts were able to find within
15       the mark and you were surprised that you had not been
16       told that the number of points might have varied, even
17       though all these experts were happy to identify Y7 as
18       that of Shirley McKie.
19           Have you ever been told the number of points that an
20       expert has found within a fingerprint?
21   A.  I understand it was 16.
22   Q.  But have you ever had a discussion with an expert as to
23       the number of points they were able to find within the
24       mark?
25   A.  I haven't precognitions of Charles Stewart or
page 118
 1       Mr Macpherson in front of me now but I may have
 2       mentioned those, I would have expected to have discussed
 3       that with them in their precognitions.
 4   Q.  I am sorry, I mean in any other case have you ever
 5       discussed the number of --
 6   A.  No.
 7   MR HOLMES:  Thank you.
 8   THE CHAIRMAN:  Mr Smith, do you have any questions?
 9   MR SMITH:  Sir, I do.  The areas that I'd like to ask about
10       which can be dealt with fairly quickly relate to timing
11       regarding Mr Swann's involvement and I want to look at a
12       couple of documents and some questions about disclosure
13       then and now.
14   THE CHAIRMAN:  Yes.
15   MR SMITH:  The generality of the evidence, I am not going to
16       go into detail of the evidence against Shirley McKie and
17       the importance of, in particular, getting an independent
18       report and, finally, the matter of presentations to
19       juries then as compared to now --
20   THE CHAIRMAN:  That's the presentation at the trial.
21   MR SMITH:  At the trial and the way it's done.
22   THE CHAIRMAN:  Well, it will assist me, the latter one,
23       because I would like to know who actually has
24       responsibility for deciding how the evidence should be
25       presented, the formal presentation --
page 119
 1   MR SMITH:  I shall try and cover that, sir.
 2   THE CHAIRMAN:  Thank you.
 3                    Cross-examined by MR SMITH
 4   Q.  Mrs Greaves, as far as Mr Swann's involvement is
 5       concerned, can I just understand without necessarily
 6       going to documents, your evidence was to the effect that
 7       you thought you heard about Mr Swann some time towards
 8       the end of 1998 but that was in conversation with, I
 9       think you say in your statement, with Angela McCracken,
10       a solicitor who was representing Ms McKie.  Is that
11       right?
12   A.  Yes.  At that time Levy & McRae wanted the fingerprint
13       Y7, which was on a piece of wood, to be examined by
14       their expert and I think in the conversations that we
15       had I was aware that the name they were talking about as
16       the expert was Mr Swann.
17   Q.  And I take it the fact they had not obtained the piece
18       of wood at that stage would tend to support that you
19       were not told what his opinion was at that time; is that
20       right?
21   A.  Yes.
22   Q.  But we know that he didn't actually produce his report
23       until March of the following year in the run-up to when
24       the trial took place.
25           Does that fit more correctly with your recollection,
page 120
 1       you didn't really now what his opinion was at various
 2       stages as you sit here today?  Is that right?
 3   A.  Yes.
 4   Q.  I am assuming that the question was raised over
 5       instructing an independent report, someone from England,
 6       that was a completely separate question of Mr Swann's
 7       involvement whatever that may have been?
 8   A.  Yes, that was Terry Kent that was to be the English
 9       expert, initially.
10   Q.  I would like to move on and ask you about issues of
11       disclosure and Mr Moynihan put to you a number of
12       individuals who were apparently, at least at one stage,
13       unable to reach a 16-point standard.  You remember him
14       mentioning that?
15   A.  Yes.
16   Q.  Before today, were you aware of that?
17   A.  No.
18   Q.  I think we have heard some evidence about this already.
19       Whatever the views of these individuals was overall
20       about the identification of the print, at that time did
21       you understand the standard to be a 16-point standard?
22   A.  Yes.
23   Q.  Suppose you were presented in a case hypothetically with
24       one expert who said, "I found 16", and another expert
25       saying, "I can only get 10 points", would you be
page 121
 1       prepared to read in both witnesses or have them read as
 2       witnesses to say, "I can only get 10 but I'm sure about
 3       the position"?
 4   A.  If that would have included the statements in
 5       precognition then obviously it would have been up to
 6       Crown Counsel to decide if they wanted to lead the
 7       witness but I think it would have been relevant to have
 8       those statements as part of the precognition.
 9   Q.  But the simple point is, of course, that there was an
10       expected 16-point standard at that stage.  That's right,
11       isn't it?
12   A.  Yes.
13   Q.  And the fact that someone couldn't get up to 16 points
14       would, at least from your experience as a member of the
15       Crown Office and Procurator Fiscal Service, would be
16       something that you would have a concern over?
17   A.  Yes.
18   Q.  Anything you would have had a concern over is something
19       you would have expected to have been told, wouldn't you?
20   A.  Well, I would have expected an explanation, obviously,
21       if they still maintained that they could identify the
22       print from their examination of it but they weren't
23       getting up to the 16-point, I would expect to be advised
24       why they were convinced of the identification.
25   Q.  Can I ask you have you personally ever prosecuted in the
page 122
 1       Sheriff court a case involving fingerprints?
 2   A.  Yes.
 3   Q.  And was it required that you actually led the
 4       fingerprint expert or experts?
 5   A.  No.
 6   Q.  Was it a matter agreed by the defence as to the
 7       identification or not as the case may be the fingerprint
 8       evidence?
 9   A.  As far as I can recall, yes.  It was a matter of
10       agreement.  I don't remember having to call for
11       Fingerprint Officers.
12   Q.  I take it you would agree with me that whenever
13       fingerprint evidence is challenged, it may depend on a
14       number of possible factors: one, of course, that the
15       accused denies he was in the locus, that is an obvious
16       example, but even if he disputes it, I take it you would
17       agree with me that it would depend whether the accused
18       was given Legal Aid in order to instruct an expert to
19       challenge the evidence, wouldn't it?
20   A.  I presume so.
21   Q.  Just lest we think there's no challenge it's always
22       accepted, I take it you will agree with me it may be the
23       defence are not granted Legal Aid to get an expert to
24       look at the analysis that's fair, isn't it?
25   A.  To be honest with you, I'm not a defence counsel, I
page 123
 1       couldn't ...
 2   Q.  I would like to ask you about methods of presentations
 3       of fingerprint evidence to juries.  I take it you would
 4       agree with me -- and we heard a very detailed exposition
 5       of what the law appears to be from Mr Moynihan in his
 6       opening -- that the I think it was put the bare ipse
 7       dixit, the bare word of the expert is not enough; it has
 8       to be based on reason and analysis.  You are aware of
 9       that, aren't you?
10   A.  Yes.
11   Q.  I am sorry can you keep your voice up.  Obviously, this
12       has to be recorded.  So, therefore, I take it we can
13       agree I think with what was being presented by
14       Mr Moynihan that what an expert is doing must be more
15       than saying, "I'm an expert, I can see it, it's there,
16       it's a match".  There must be more than that.  Is that
17       not right?
18   A.  Well, yes, I would agree but in this particular case
19       there were productions produced which supported the
20       expert evidence and opinion that was provided.
21   Q.  Yes.  So the productions were prepared and presented to
22       the court in an effort to demonstrate what the expert
23       was actually saying.  You understand?
24   A.  Yes.
25   Q.  Now I would like you to look, if you can, please, at one
page 124
 1       of these documents.  I think it is SG0125.  I think we
 2       have seen this one or one similar to it and can I ask
 3       you to go on to the next page, please.
 4           What we see in this document is there are
 5       photographs obviously of Y7 in situ on the piece of wood
 6       and then on to the next page please where we see that
 7       representation which I understand shows an enlargement
 8       on the left-hand side of Y7 and a part of Y7 and on the
 9       right an enlargement of part of the inked fingerprint of
10       Shirley Cardwell as she then was, Shirley McKie; do you
11       see that?
12   A.  Yes.
13   Q.  Can you help us who was it that was responsible for the
14       method of this presentation at the time?  Who decided
15       this was the way to present it to the jury if necessary?
16   A.  I think the SCRO had produced similar documents for the
17       David Asbury case and so they produced -- they went on
18       to produce a similar type of document for the case
19       against Shirley McKie.
20   Q.  Apart from these two cases, the Asbury case and the
21       McKie case, had you ever seen a presentation like this
22       before in any case involving fingerprints?
23   A.  Yes, but not in as much detail, not with so much detail
24       in the points of comparison, with certain ones marked.
25       I don't remember there being as much detail as there was
page 125
 1       in this case.
 2   Q.  You see of course the both the left-hand and left-hand
 3       images we can see 16 numbers numbered 1 to 16 with lines
 4       going from the number to something within the
 5       photographic image.  Do you see that?
 6   A.  Yes.
 7   Q.  Are you saying you've seen less than 16 points or are
 8       you saying you have seen them without the lines or what?
 9       How should one understand "less detail than other
10       cases"?
11   A.  My recollection is that they had sort of like little
12       circles in parts of these bits, not the 16 lines with
13       the numbers going out from the edges but, you know,
14       little circles on this bit.
15   Q.  I take it backed with a written report saying there are
16       16 points between these two images in a --
17   A.  There was a standard wording.  I don't know exactly what
18       it said but it was a standard wording that was accepted.
19   Q.  Surely, but the magic word is 16, I suppose is what I am
20       saying.  They have to say 16?
21   A.  Well, I can't say whether it said 16 or not but there
22       was a standard wording at the time that they said they
23       had compared the fingerprints and the lift and, you
24       know, they were satisfied.  I can't remember the exact
25       wording but there was a standard wording that was used
page 126
 1       for court reports.
 2   Q.  I take it before today you have seen this document in
 3       connection with the McKie case or something similar?
 4   A.  Yes, I must have done.
 5   Q.  Can you say was that before Shirley McKie's trial you
 6       saw this or something similar?
 7   A.  I presume it must have been before Shirley McKie's
 8       trial.  If it was a production in the case I would have
 9       expected to have seen it.
10   Q.  I think, in fact, there were three similar versions of
11       this that were lodged in the course of her trial.  But
12       against the background to pick up a question a few
13       moments ago I put to you about the expert having to
14       demonstrate why he's reached his opinion, not just that
15       it is his opinion, I think you were referring to this
16       kind of document as the way that it's been communicating
17       to the jury, "Why I am right about this, I can show you
18       how I've reached my conclusion".
19           Do you understand what I'm saying?
20   A.  That was the purpose of this.
21   Q.  Were you able to find 16 points from the left-hand
22       image.  Could you look at them and say, "Yes, I see all
23       of these points"?
24   A.  I'm not an expert so I have no training so I wouldn't
25       have attempted to do that.
page 127
 1   Q.  You have the opportunity to sit there with the experts
 2       from SCRO and say, "Listen, I'm really struggling with
 3       number 14 on the left.  Can you help me with that".  You
 4       had that opportunity, didn't you?
 5   A.  Probably I did, yes.
 6   Q.  You say you think you might have done?
 7   A.  Well, yes, I was sitting at the precognition with them.
 8       I could have -- yes, I accept that I could have asked
 9       them about that but I didn't because that's not part of,
10       you know, my function.  I don't have expert training.  I
11       don't have -- presumably they have specialist equipment
12       when they are carrying out their examinations which I
13       wouldn't have had in my office.
14   Q.  You see, what I am struggling with here -- and we all
15       have hindsight in this matter of course -- but what I am
16       struggling with is this: in Shirley McKie's case there
17       were really two important pieces of evidence: one was
18       the identification of Y7 as being hers and the other was
19       the question of whether she had the opportunity to leave
20       it at the locus.  These are the two big bits; that's
21       right, isn't it?
22   A.  I think there were are two aspects, yes, to the case,
23       yes.
24   Q.  Can I just be clear about this: the question of the log
25       itself, if there was a gap in it, would have only
page 128
 1       afforded her the opportunity of going into the locus,
 2       wouldn't it?
 3   A.  I think that from my statement and from the precognition
 4       it's quite clear that there were gaps in the log and
 5       that there were omissions in the log as well.  So it was
 6       quite clear that as a result of this particular -- the
 7       log in this particular case, that standards had to be
 8       improved and I understand that they were after this,
 9       that they were much, you know, tightened up far more.
10       But that there were omissions.  People who had been in
11       the premises were not recorded as having gone in and
12       there were other gaps where clearly officers who were on
13       duty had to use the garage down the road, as I
14       understand it, for toilet breaks.
15   Q.  I understand that.  All I am interested in is that the
16       log did not provide any evidence that Shirley McKie had
17       been in the house, did it?
18   A.  No, it didn't.
19   Q.  All it did was it showed that if there were gaps it's
20       possible that she could have been in one of the gaps and
21       that's as far as it got --
22   A.  Or that it hadn't been recorded.
23   Q.  Yes, of course.  That's what I mean.  So what we're
24       looking at is a log really as being something that's not
25       positive evidence of her being in, it's just not
page 129
 1       negative if you follow.  Is that right?
 2   A.  Yes.
 3   Q.  So all of this is gravitating to the identification of
 4       Y7 as being hers.  That is the key evidence in this case
 5       of course, isn't it?
 6   A.  Yes.
 7   Q.  Can I put it this way: I suppose you would say that even
 8       without the evidence of the log or whatever, if you
 9       forgot about all of that evidence, you would no doubt
10       say there would still in your view have been enough
11       evidence on the fingerprint identification for obvious
12       reasons to place her in the locus.  That's right, isn't
13       it?
14   A.  Well, I think what I said was that there was evidence
15       that the fingerprint was hers and had been identified as
16       her print but, obviously, the report that we got from
17       Terry Kent didn't cover all the issues that I felt
18       should have been covered and the matter of the
19       independent examination of the fingerprint wasn't
20       covered either.
21   Q.  You see, I am sure you understand that when we look at
22       this case and we see how vital it was that Y7 was
23       correctly identified, I'm wondering if against that
24       background it would be something you would be thinking
25       when you are precognoscing the Fingerprint Officers,
page 130
 1       "You need to talk me through this.  I need to understand
 2       it because the jury need to understand it".  You told us
 3       you didn't do that but don't you think it would have
 4       been a prudent thing to do?
 5   A.  I think they talked me through how they did the
 6       comparisons and what they looked for but, as I said, we
 7       were in my office for the precognitions.  I wasn't at
 8       their office so I wasn't in a position to look at prints
 9       in the way that they would have done under specialist
10       conditions.
11   Q.  You are anticipating that when the jury were being asked
12       this they would have been privileged enough to have the
13       special conditions?
14   A.  No they wouldn't, obviously, but I think when they came
15       and the fingerprint officer came to my office he didn't
16       have this with him.  This was prepared probably after
17       that, I presume after the discussions that we had.
18   Q.  But once you saw it did you not sit there and think,
19       "Goodness me, I find this really difficult to
20       understand.  How is a jury going to understand it".  Did
21       that not cross your mind?
22   A.  Not really because the whole point of the detail was --
23       in the David Asbury case, was to try and demonstrate to
24       the jury how the officers reached their conclusions and
25       they also had other documents that were lodged as
page 131
 1       productions to enable the jury to understand what the
 2       process was.
 3   Q.  But do you not see the gap that's developing here where
 4       there's no specialist equipment available to the jury
 5       and what the expert is really saying is, well, some of
 6       these experts, "I'm telling you I've drawn the
 7       analysis".  Do you not understand that that was
 8       gravitating to the words of the bare ipse dixit of an
 9       expert witness telling you there's a match there?
10   A.  Yes, they were the expert witnesses so they would come
11       along, giving an opinion, they were demonstrating, I
12       presume, going to demonstrate why they thought that that
13       was their opinion but at the end of the day the jury
14       would be entitled to either believe the experts'
15       evidence or choose to disregard it.
16   Q.  But you agree with me though the jury is supposed to
17       come to their conclusion and not be directed to their
18       conclusion on the basis of the evidence that they are
19       satisfied with, not just because an expert says, "I have
20       seen the evidence and I am telling you it matches".  You
21       agree --
22   A.  Yes, it's up to the jury to decide if they accept the
23       evidence of the expert and if they don't understand the
24       production, then they may choose not to.
25   Q.  So I take it from all you have said so far the position
page 132
 1       is the Crown was content and would be content at that
 2       time simply to accept an expert coming without the Crown
 3       necessarily understanding the detail of how that opinion
 4       was reached.  Have I got that right?
 5   A.  No, I don't think that's correct.  They had explained
 6       what the process was, they explained how they did their
 7       comparisons, they had the productions there to
 8       demonstrate how.  It wasn't just -- they had information
 9       there to back up what their expert view was.
10   Q.  You have heard today there are some experts within
11       SCRO -- in fact, a number of them -- who were unable to
12       achieve 16 points.  You have heard that.
13   A.  Yes.
14   Q.  If you look at the left-hand image of what it is that
15       appears to identify 16.  I think we have heard accepted
16       by the previous witness that it places the jury at a
17       particular disadvantage if an expert of some years'
18       experience can't find 16 yet a jury is being asked to
19       find 16.
20           Would you agree that there is a bit of a problem
21       there?
22   A.  Yes.
23   Q.  Were you concerned at all about the fact there was only
24       parts of the print that were on that demonstration
25       folder, you don't see all of it.  On these images you
page 133
 1       don't see all of the close-up of Y7 on the left-hand
 2       side and all the inked print on the right-hand side.
 3       Did that cause you any concern?
 4   A.  Not really.  I think that's quite typical of the marks
 5       that we've seen in productions.
 6   Q.  Was it ever explained to you why the parts of these
 7       prints were reproduced?
 8   A.  No.
 9   Q.  Did you not consider it might be helpful to ask why the
10       whole lot wasn't produced?
11   A.  I don't recall whether I asked that or not.
12   Q.  You will accept of course that on one view the best
13       evidence would be the entire print, wouldn't it?
14   A.  Yes.
15   Q.  Can I ask you to look at another document please which
16       is SGO709.  Take it from me this appears to be a
17       document prepared by Hugh Macpherson within SCRO.
18   A.  Yes.
19   Q.  Can we turn on to the next page please and, again, we
20       see a similar thing to what we have seen before.  If we
21       flick to the next page, please, I think I am right in
22       saying by the timing of this document -- I will come on
23       to that in a moment or two -- this is a case prepared by
24       Mr Macpherson for the purposes of the disciplinary
25       hearing against Shirley McKie.  I think the date we will
page 134
 1       see is in February 1996.  This obviously predates the
 2       presentation we were looking at a few moments ago, but
 3       what we can see here of course is it bears to represent
 4       a number of marks -- I think the photocopy is not
 5       particularly good -- but we have 1, 2, 3, 4, 5, 6 and
 6       then 11, 12, 13 and so on.  We can see lines coming in
 7       from the left.  So 16 points on the mark Y7; do you see
 8       that?
 9   A.  Yes.
10   Q.  Can you look at the next page, please, in this document.
11           Again, you can see what is a larger area of
12       fingerprint rather than anything else so the whole
13       fingerprint.  Again, the same idea, identify 16 points
14       in the document.
15           Could we have the next page, please, and we can see
16       an indication, first of all, we can see at the bottom of
17       the page -- I think we see in 2/2/06.  There's an
18       understanding that this was prepared, as it were,
19       predated for the purposes of the civil proof that took
20       place in 2006 but it was prepared, the document must
21       have been prepared for the purposes of the disciplinary
22       hearing which is 1997 or 1998.
23   A.  I don't know when the disciplinary hearing was.  My
24       understanding was that wasn't done until after the court
25       case but I could be completely wrong.  My understanding
page 135
 1       was from the correspondence which I have on file from
 2       the police that they were delaying the disciplinary
 3       hearing until the outcome of the trial.
 4   Q.  Very well.  I am more interested in the presentation but
 5       no doubt Mr Macpherson can tell us.
 6           As far as that presentation is concerned I take it
 7       you would agree with me there's literally a much fuller
 8       picture of the Y7 mark and of the known impression of
 9       Shirley McKie; you agree with that?
10   A.  Yes.
11   Q.  Also we can see the list 1 to 16 that's got the
12       description number 1, for example, bifurcation with one
13       intervening ridge.  I think that's 2 and then number 2
14       and then so.  You see that.  So we know what is referred
15       to with each of these marks; do you agree with that?
16   A.  Yes.
17   Q.  Did you see anything similar to that page on screen now
18       of the 1 to 16 with the actual description, did you see
19       anything similar to that for the preparations you had
20       for the purposes of the trial?
21   A.  To be honest, I don't recall but I would have expected
22       to have had it produced or certainly it would be
23       included in the precognition.
24   Q.  I would like to ask a few more questions on the issue of
25       disclosure.  You explained that those who failed to
page 136
 1       reach the 16-point standard you were unaware of, that
 2       you would have liked to know about that and do you feel
 3       you should have been told about that?
 4   A.  I think it would have been important for Crown Counsel
 5       to have had that information.
 6   Q.  Only to Crown Counsel to have that information?
 7   A.  Well, I mean, for Crown Counsel to have the information
 8       in the precognition.
 9   Q.  And important for the defence to have that information
10       as well, wouldn't it?
11   A.  Well, yes, but, as you know, at that time there wasn't
12       disclosure in the way that there is now.
13   Q.  There wasn't?
14   A.  I'm talking about we didn't -- I mean, I didn't have
15       reports from these people so I didn't have a report to
16       disclose to the defence.
17   Q.  Can I ask you this: if you had known it, would you have
18       disclosed it to the defence?
19   A.  I would have sought instructions because that's what we
20       had to do then.
21   Q.  Would you personally have felt it should have been
22       disclosed to the defence?
23   MISS GRAHAME:  Excuse me, Mr Chairman, I wonder if this is
24       going beyond the realms of what was applied for.
25   THE CHAIRMAN:  The Inquiry is about -- well, I think we can
page 137
 1       deal with what happened and, in fact, the witness wasn't
 2       aware and, therefore, it wasn't disclosed.  That is
 3       perhaps the position.
 4   MR SMITH:  Very well, sir.
 5           I wonder if I can bring you up-to-date in some
 6       respects.  I hope I am not straying too far but you
 7       explained very fairly you simply did not know about it.
 8       You told us that.
 9           Can you help us with this: as far as disclosure is
10       concerned now in something like this, is there some kind
11       of system in place in order that if the Crown is aware
12       if there is, for example, a fingerprint analysis who is
13       not sure about an analysis, is there some means of the
14       Crown knowing that, as far as you're aware?
15   A.  I am not working in the operational office as such.  I
16       work at the High Court now but I'm not involved in
17       preparation of cases so I'm not involved with the
18       disclosure issues unless they arise at the court.  So I
19       don't know whether or what they are to be honest.  I
20       don't know what the arrangement is with SCRO.
21   Q.  So I suppose there is someone within Crown Office that
22       can perhaps assist in due course as to what liaison
23       systems or points of contact and communication are set
24       up to ensure that any doubts, if I can put it like that,
25       are communicated; is that fair?
page 138
 1   A.  My understanding is that there are systems in place
 2       which are outwith the police and outside offices,
 3       outside agencies but whether or not -- I mean, I don't
 4       know I hope presumably there would be someone in Crown
 5       Office but I don't know what the situation is in SCRO
 6       now.
 7   Q.  A final question I have for you is this: I think we can
 8       see that, for whatever reason, no independent assessment
 9       of the analysis of Y7 was ultimately obtained from south
10       of the border as was anticipated.
11           Are you able to help us with this: are you able to
12       explain who would have -- and I don't mean this in a
13       pejorative sense -- but the responsibility, ultimately,
14       for the conclusion, "Well, maybe I should have followed
15       it up ..." can you understand how this fell between the
16       gap?
17   A.  I've said already the report was with Crown Counsel.  I
18       was expecting to get instruction back about further work
19       that Crown Counsel wanted covered.  I had no detailed
20       instruction about issues to be raised with Terry Kent or
21       with other persons.  That's what I would normally have
22       expected to receive and I didn't.  So at that stage I
23       presumed that Crown Counsel were satisfied with the
24       information that they had.
25   Q.  I take it you would agree with the suggestion that,
page 139
 1       certainly with the benefit of hindsight, it should have
 2       been carried out?
 3   A.  It's not just benefit of hindsight.  At the time I
 4       suggested that we should obtain independent examination.
 5   MR SMITH:  Thank you very much.
 6   THE CHAIRMAN:  Mr Macpherson, have you any application?
 7   MR MACPHERSON:  No, I have none.
 8   THE CHAIRMAN:  Miss Grahame?
 9   MISS GRAHAME:  Two matters please.  The first arising out of
10       the cross-examination by my learned friend Mr Smith
11       regarding -- I would like to put Mr Murphy's approach to
12       the evidence to the witness and, secondly, in relation
13       to the source of the instructions that --
14   THE CHAIRMAN:  Yes.
15                  Cross-examined by MISS GRAHAME
16   Q.  Mrs Greaves, may I ask you a question, first of all, in
17       relation to the approach to the evidence.  My learned
18       friend Mr Smith has suggested to you that the
19       identification of Y7 is the key evidence in this case,
20       of course, and for those of us with the benefit of
21       LiveNote that's at page 125, lines 19 to 21.
22           Could I put to you, please, a statement which
23       Sheriff Murphy QC has given to the Inquiry which is
24       CO2592 at pages 8 and 9 ... I've maybe got the wrong
25       number, sorry.  Can you take that off the screen.  I've
page 140
 1       got the wrong number here.
 2           FI0070 at pages 8 and 9.
 3           I wonder, Mrs Greaves, if you would take a moment to
 4       read paragraphs 12 and then just to yourself.  (Pause)
 5   A.  Yes, I've read that, thank you.
 6   Q.  Looking at paragraph 12, lines 5 to 8 Sheriff Murphy
 7       says:
 8           "This concern was abated by the fact that prior to
 9       the trial it appeared that the Crown case did not rely
10       solely on fingerprint evidence because I thought I had
11       an eye witness, production officer James Kerr, who paced
12       Ms McKie at the scene."
13           Do you see that that's what is said there?
14   A.  Yes.
15   Q.  So it would appear that Sheriff Murphy was approaching
16       the case on the basis that he had eye witness evidence?
17   A.  Yes.
18   Q.  Would you agree, Mrs Greaves, that eye witness evidence
19       is significant evidence?
20   A.  Yes.
21   Q.  And that's nothing to do with fingerprint analysis?
22   A.  No.
23   Q.  Then would you turn please -- if we could have
24       paragraph 16, which is on page 10, and I wonder if you
25       could read for me please paragraph 16 again just to
page 141
 1       yourself.  (Pause)
 2   THE CHAIRMAN:  Maybe if it is going to take a moment for the
 3       witness to read the passage we should have the break now
 4       and give her time to read it not under pressure and sit
 5       again at just before 3.05.
 6   (2.54 pm)
 7                         (A short break)
 8   THE CHAIRMAN:  Yes, Miss Grahame, if you would like to
 9       continue.
10   MISS GRAHAME:  Mrs Greaves, I had asked you to read through
11       paragraph 16.
12           Have you had an opportunity to do that?
13   A.  Yes.
14   Q.  Do you see just more than halfway down there's 26 lines
15       on this page and if you look at line 18 it starts:
16           "Something of a surprise ..."
17   A.  Yes, I see that.
18   Q.  Do you see just as a background this relates to
19       Mr Kerr's evidence at the trial.
20   A.  Yes.
21   Q.  And Sean Murphy said in his statement:
22           "This was particularly disappointing as I regarded
23       it as a key piece of evidence that supported the Crown
24       case.  Once this identification evidence was flawed
25       [that is Mr Kerr's] I began to become concerned as I was
page 142
 1       now relying solely on the fingerprint evidence to place
 2       Ms McKie inside the house and the case was, from that
 3       point, a battle between the two sets of experts."
 4   A.  Yes, I see.
 5   Q.  So it would appear that Sheriff Murphy was relying on
 6       primarily eye witness evidence and once Mr Kerr's
 7       evidence changed, then he relied solely on the
 8       fingerprint evidence?
 9   A.  Yes, that's correct.
10   Q.  Can I ask you to look at another document please.  You
11       have already been referred to this, CO3460.  It is a
12       letter dated 17th August 1998 although it has your
13       handwritten -- sorry, it relates a telephone call and is
14       a handwritten note from 17th August 1998?
15   A.  Yes.
16   Q.  It indicates that you spoke to Gillian Climie on that
17       date and it says:
18           "She will re-read report and advise if any further
19       matters require clarification."
20           You have already given evidence about this.
21   A.  Yes.
22   Q.  Could you also look for me, please, at CO3458 which is a
23       letter dated 21st August 1998.
24   A.  Yes.
25   Q.  That is a letter by you to Messrs Levy & McRae who were
page 143
 1       representing Ms McKie?
 2   A.  Yes.
 3   Q.  Does it say at the end of the first line of your letter:
 4           "Last week I was in contact with the Depute at Crown
 5       Office regarding this case."
 6           Would that be a reference to Gillian Climie?
 7   A.  Yes.
 8   Q.  She was the indicter?
 9   A.  Yes.
10   Q.  "She assures me I should have Crown Counsel's
11       instructions within the next two weeks."
12           Was that an indication of what Mrs Clamie had said
13       to you?
14   A.  Yes, she indicated that she thought we would be able to
15       get instructions within two weeks.
16   Q.  It was instruction from Crown Counsel?
17   A.  Yes.
18   Q.  And it says:
19           "Thereafter I will either request further
20       examination of the productions which are at PSDB or I
21       will arrange for their return to Glasgow."
22           So it appeared to you at that time that those were
23       the two options?
24   A.  Yes.
25   Q.  And whatever the outcome, it would depend on Crown
page 144
 1       Counsel's instructions?
 2   A.  Yes.
 3   Q.  Not any instruction from Gillian Climie?
 4   A.  No.
 5   Q.  Could I ask you now please to look at CO3451 which is a
 6       letter dated 9th November 1998.  Again, a letter from
 7       you to Levy & McRae where you say:
 8           "I refer to your letter of 23rd October and confirm
 9       that I have now received instructions to request return
10       of the productions from PSDB."
11   A.  Yes.
12   Q.  Would you have written, "I have now received
13       instructions", without actually having received any
14       instructions?
15   A.  No.
16   Q.  So can we assume from that that you did receive
17       instructions?
18   A.  Yes.
19   Q.  Who would you have received instructions from?
20   A.  It would have been the indicter.
21   Q.  And what would the source of her instruction have been?
22   A.  From Crown Counsel.
23   Q.  As well as you know, was it the practice of indicters to
24       bypass Crown Counsel and issue their own instructions?
25   A.  Not as far as I was aware.  I didn't ever work in Crown
page 145
 1       Office as an indicter; so my understanding was that the
 2       instructions always came from Crown Counsel and that's
 3       what I would have expected.
 4   MISS GRAHAME:  Thank you very much.  I have no further
 5       questions.
 6   THE CHAIRMAN:  Thank you.
 7   MR MOYNIHAN:  No further questions, sir, thank you.
 8   THE CHAIRMAN:  I just want to ask you about one matter.
 9           When you heard that Mr Swann was taking the same
10       view as the Scottish Criminal Record Office, that was no
11       cause for alarm on your part; he was confirming what
12       they had found?
13   A.  Yes.
14   THE CHAIRMAN:  Had it been the other way around and it had
15       come to your notice that a different view was being
16       taken, presumably that would have caused you --
17   A.  Alarm bells would have rung.
18   THE CHAIRMAN:  Alarm bells -- alerted you even to --
19   A.  Yes.
20   THE CHAIRMAN:  Am I right in understanding that you were
21       never at any time until perhaps you read it in the
22       newspaper alerted to the fact that there was a dispute
23       not that the fingerprint had been planted but as to
24       whether the identification was correct?
25   A.  Yes.  I read it in the newspaper that the fingerprint
page 146
 1       identification itself was in issue rather than whether
 2       it was a fake or transplant.
 3   THE CHAIRMAN:  Thank you very much indeed.
 4                      (The witness withdrew)
 5   MISS CARMICHAEL:  Sir, the next witness is Ms Gillian
 6       Climie.
 7                 MS GILLIAN YUILLE CLIME (sworn)
 8   THE CHAIRMAN:  Your full names, if you would just give them
 9       so that we have it recorded please.
10   A.  It's Gillian Climie.
11   THE CHAIRMAN:  Thank you.
12   MISS CARMICHAEL:  Ms Climie, we sometimes have difficulty
13       hearing people if the microphone isn't in close so that
14       should be helpful, thank you.
15           Ms Climie, I think you prepared yourself and signed
16       a statement for the Inquiry?
17   A.  I did.
18   Q.  You're happy that that records your position accurately?
19   A.  As far as I'm able to give it, yes.
20   Q.  I would like to take you back, Ms Climie, to a time in
21       1998 when you first became involved with the case
22       against Ms Shirley McKie.
23           You told us in your statement that at that time you
24       had been working as an indicter in the High Court Unit
25       for some time.
page 147
 1   A.  That's correct.
 2   Q.  I wonder if you could tell us, please, a little bit
 3       about the work of an indicter, what that would involve?
 4   A.  Basically, preparing the indictment in High Court cases.
 5   Q.  Now, we've heard some evidence that a perjury case such
 6       as the one that you came to deal with in connection with
 7       Ms McKie was prepared in something of a different order
 8       from the normal case that would come to you in the
 9       course of your work.  Is that correct?
10   A.  It very much depended on how things came to fruition.  I
11       mean, every perjury case -- I was only ever involved in
12       one perjury case in my time in the High Court Unit,
13       which was this one, and I think it's quite clear from my
14       statement how I got involved in that.
15   Q.  Just so that perhaps members of the public who don't
16       understand how Crown Office worked at the time can
17       perhaps understand it a little bit about what your role
18       was.  If we can leave aside the McKie case for the
19       moment and just talk about what an indicter such as
20       yourself would do and the sort of material that she
21       would be presented with to help her do her job of
22       preparing the indictment, that's the formal charge for a
23       High Court trial.
24   A.  Well, basically you got a precognition from the Fiscal.
25       Normally, what would happen in a normal case -- will I
page 148
 1       take you through a normal case?
 2   Q.  I think that might be helpful so everyone --
 3   A.  Okay, tell me if I'm going on too long about this.
 4           In a normal case, a person would be arrested by the
 5       police for a serious crime.  They would be locked up by
 6       the police and the following day they would be presented
 7       as a custody to the Procurator Fiscal in whose
 8       jurisdiction the crime had allegedly been committed.
 9           The Procurator Fiscal, if satisfied that there was
10       one source of evidence at least against that person
11       would put that person before the Sheriff in private on
12       what's called a petition, which is a preliminary charge.
13       If we take a murder case an accused would be arrested, I
14       think if I take you through Mr Asbury's case?
15   Q.  I think it's probably better if we keep it in general
16       terms but you described the --
17   A.  Okay, somebody might be arrested on 22nd January and
18       would appear at the Sheriff court the following day,
19       which 23rd January, assuming that was not a Saturday or
20       Sunday or a court holiday.  He would be, if there was
21       one source of evidence at least, he would be committed
22       for further examination -- that would be the Fiscal's
23       motion.
24           At the time that we're talking about here, 1997,
25       there would be no right to apply to the Sheriff for bail
page 149
 1       if the charge was one of murder and that position was
 2       altered by statute in the year 2000.
 3           The only way of obtaining bail in 1997 was for the
 4       accused to make an application to the nobile officium of
 5       the High Court.
 6   Q.  I will stop you there because I think Mr McMenemy has
 7       given evidence and told us about the system for bailing
 8       murders at the time.
 9   A.  So at CFE there would be no question of bail in a murder
10       case.  The accused would be committed for an examination
11       and remanded on the committal warrant from the Sheriff.
12           The maximum length committal for examination would
13       be eight days.  During that eight day period the
14       process, as you probably heard, would in a murder case,
15       not in any other form of case, report the circumstances
16       by preliminary report known as the three-day report to
17       Crown Office.  This would summarise the evidence and
18       have a recommendation to Crown Office to Crown Counsel
19       as to whether there was sufficient evidence to fully
20       commit the accused on the eighth day or the seventh day,
21       as it sometimes was.
22           There might also be a recommendation that the charge
23       should be, at that stage, reduced to culpable homicide,
24       although that wasn't particularly common but
25       occasionally did happen.
page 150
 1           Crown Counsel would consider or I should say a legal
 2       person in the High Court Unit at Crown Office, normally
 3       when I was there it would be the assistant solicitor,
 4       the head of the High Court Unit, in this case I
 5       understand it was Mr Gallacher, Billy Gallacher (now
 6       Sheriff), he would consider the report and write a
 7       recommendation to Crown Office as to whether the person
 8       should or should not be fully committed.
 9           If the instruction was to fully commit, that
10       instruction would be conveyed by letter, usually faxed,
11       to the Fiscal's Office so that they knew what to do with
12       accused at the full committal hearing which was, as I
13       say, about a week after the first appearance.
14   Q.  If I can stop you there and I can put a couple of
15       propositions to you and you can tell me if I am wrong or
16       if I am wrong.
17           In the sort of case that you are describing where
18       somebody perhaps appears again on the eighth day and
19       then is kept in custody for a period, that at that time
20       would have set a time of 110 days running before that
21       person can be brought to trial.
22   A.  Yes.  At the time we're talking about -- things are
23       obviously different now -- at the time we're talking
24       about from the date of full committal, if the person was
25       remanded in custody at that stage and a murder accused
page 151
 1       would be remanded in custody in those days -- there's no
 2       question of bail -- the time limits were 80 days within
 3       which to serve an indictment, if an indictment had not
 4       been served within 80 days the accused was entitled to
 5       his liberation, although the failure to serve indictment
 6       within 80 days did not mean he was free from being later
 7       indicted.
 8           The other time limit that applied was a 110-day
 9       limit which was very strict.  Within 110 days of his
10       full committal his trial had to commence and a trial
11       commenced by the balloting and swearing in of a jury.
12           If the person was not brought to trial, in that
13       sense, within 110 days, then he was free from all for
14       all time from being indicted or prosecuted for the crime
15       for which he had been fully committed.  So these were
16       the time limits that applied normally in a murder case.
17   Q.  If I can again just stop --
18   THE CHAIRMAN:  Just give a moment, I think we will adjust
19       the microphone.
20   MISS CARMICHAEL:  It may be my fault for encouraging you to
21       sit too close.  I apologise.
22   THE CHAIRMAN:  Too good an instruction.
23   MISS CARMICHAEL:  Now one might have a situation where, as
24       you said, somebody is in custody awaiting trial or you
25       might have the position we've heard where there's a
page 152
 1       longer time bar, a 12 month time bar, where somebody has
 2       been given their liberty and I suppose what I am
 3       interested in is, in general terms, the sort of work
 4       that you would be doing to prepare for the trial,
 5       whether it was after 12 months or had to be within the
 6       110 days and how that sort of material would come to you
 7       and what you would do with it as an indicter.
 8   A.  The 12-month time bar is still in force, unchanged.  The
 9       12-month time bar, if a person is liberated, not kept in
10       custody, then his trial must begin within 12 months of
11       his first appearance in custody, ie his committal for
12       further examination appearance.
13           During the period in time when between petition
14       appearance and the indictment, if you like, the Fiscal
15       would be precognoscing the case.  I take it you've
16       discussed precognition?
17   Q.  The Inquiry has heard the precognition, in a sense, you
18       mean is putting together essentially what would become a
19       bundle for Crown Counsel to look at --
20   A.  That's what it is said today.  It's putting together but
21       in fact the Procurator Fiscal is supposed to investigate
22       the case but with modern conditions and work loads and
23       time limits and everything, it's an arguable point how
24       much actual investigation the Procurator Fiscal can
25       really realistically do.  But in theory, and from
page 153
 1       historical perspective, the Procurator Fiscal is
 2       supposed to be investigating the case, not putting it
 3       together or making up a package for Crown Counsel.
 4       Unfortunately, that is sometimes interpreted as what the
 5       precognition process is but I'm afraid it's not.  It's
 6       supposed to be an investigation, an independent
 7       investigation, independent from the police by the
 8       Procurator Fiscal of the evidence available against the
 9       accused and taking into account also exculpatory
10       evidence.
11   Q.  That would involve, for example, the Procurator Fiscal
12       or one of the precognition officers taking statements of
13       new, over and above police statements in some
14       circumstances?
15   A.  Well, how much actual statement-taking goes on nowadays
16       is a moot point.  But in theory, yes, the Procurator
17       Fiscal is supposed to see all essential, particularly
18       eye witnesses, but also witnesses to scientific matters,
19       fingerprints, forensics, some police officers are
20       precognosced.  It's a matter within the discretion of
21       the Procurator Fiscal and if it's a case being
22       precognosced by a precognition officer who's not of
23       course legally qualified, he or she works under the
24       direction of the Procurator Fiscal in deciding what
25       witnesses it's appropriate to see.
page 154
 1           The precognoscer, whether a precognition officer or
 2       whether a Fiscal, should also be looking at things,
 3       looking at the productions, examining the documentary
 4       productions, examining the labelled productions,
 5       ensuring that the labelled productions are properly
 6       labelled, properly identified.  There's a million tasks
 7       to be done in the precognition process.  It's a very
 8       important part of the solemn prosecution system in this
 9       country.
10   Q.  When all of that work has been done, the case has been
11       investigated, the material has been collated, the
12       analysis has been done, what happens to that
13       precognition?  Where does it go?
14   A.  Well, the material's put together in written form.  The
15       precognition contains a narrative of the facts and
16       supposedly an analysis of the evidence which can be of
17       varying quality and also a recommendation by the Fiscal.
18           Now all this is written by the precognoscer, whether
19       a precognition officer or a Depute, and requires to be
20       countersigned by a -- now I think probably in 1997 a
21       Principal Depute, certainly nowadays by a Principal
22       Depute.
23           The important bits are probably the analysis where
24       you should be analysing what are the appropriate crimes
25       committed here, how do we prove that that crime was
page 155
 1       committed by corroborated evidence, by anybody, and how
 2       do we prove by corroborated evidence that that crime was
 3       committed by the accused or that that accused was
 4       involved on an art and part basis in the commission of
 5       that crime.  That's the thing that should be contained
 6       in the analysis.
 7           As I've indicated many analyses in my experience
 8       were not well-written and sometimes it required the
 9       indicter at Crown Office to go further into the
10       precognition himself or herself to be satisfied on a
11       sufficiency angle but that was -- the theory is the
12       analysis should analyse the evidence, not rehearse the
13       evidence but analyse the evidence.  The
14       recommendation -- well, in a murder case if there was
15       sufficient evidence the recommendation would be obvious,
16       a recommend High Court proceedings.  If it was say an
17       assault there may be a decision to be made as to whether
18       it's High Court or Sheriff and jury, which very much
19       depended on the seriousness of it.  Certain sexual
20       crimes, for example, rape, obviously would be High
21       Court.  Some other sexual crimes there may again be a
22       gray area.  In drug offences again a gray area, some
23       drug offences would be obviously High Court depending on
24       quantity, variety of drugs, record of the accused, some
25       might be Sheriff and jury.
page 156
 1           So the recommendation would recommend is there
 2       sufficient evidence?  Should we be prosecuting and what
 3       is the appropriate forum to prosecute this case in?
 4   Q.  Thank you for that explanation, Ms Climie.  Should I
 5       take it from what you have said about the indicter
 6       sometimes having to look at matters further that it is
 7       to the indicter in the High Court Unit in Edinburgh,
 8       ultimately, that this bundle of documents called the
 9       precognition comes?
10   A.  Now, I'm speaking about the position in 1997.  I don't
11       know what the position is now.
12   Q.  You are quite correct --
13   A.  The position in 1997 is every day precognition would
14       arrive from all parts of the country, Shetland to
15       Dumfries.  They would arrive into a department called
16       Crown Office Registry.  They would be logged in there in
17       some way and they would then find their way without
18       going through any legal person's eye to the Advocate
19       Deputes.
20           Now, at the time I'm talking about, which is 1997,
21       the Advocate Deputes were arranged slightly differently
22       from what they are now.  If I could explain the position
23       now and compare it with then, would that help?
24   Q.  We will see if it does perhaps.  I don't want to detain
25       you too long on the generalities of it because I am
page 157
 1       quite keen to get, essentially, to what your role was at
 2       the time.
 3   A.  In those days -- and I think this might be relevant
 4       later to the McKie case -- in those days, any Advocate
 5       Depute -- there was the Home Advocate Depute who was the
 6       senior, if you like, the most senior and mainly based in
 7       Edinburgh around Crown Office and I think did the Appeal
 8       Court and there were the rest of the Advocate Deputes.
 9       When they weren't out prosecuting trials the Advocate
10       Deputes would be at Crown Office in Edinburgh marking
11       cases or perhaps preparing appeals or doing appeals.
12           So you could have quite inexperienced Advocate
13       Deputes marking cases in 1997.  Today, Advocate Deputes
14       are split into, well, three groups: Senior Advocate
15       Deputes who mark the cases and work in Edinburgh and do
16       the Appeal Court; Trial Advocate Deputes who are out on
17       circuit and deal with trials, wherever, Glasgow or
18       wherever; and I think there is also ad hoc Advocate
19       Deputes who do not full-time Advocate Deputes but do
20       trial sittings.
21           So marking of cases by Advocate Deputes has now been
22       much better arranged in that it's now done by
23       experienced Advocate Deputes and by experienced I mean
24       experienced in the prosecution process.  I'm not
25       suggesting in 1997 any Advocate Deputes were
page 158
 1       inexperienced as advocates but they may have been
 2       inexperienced in the prosecution or the marking of cases
 3       or in Crown Office policy or practice and yet they would
 4       still be finding themselves marking cases.
 5   Q.  How did their job interact with what you did as an
 6       indicter?
 7   A.  Well, the Advocate Depute would mark the case.  The case
 8       might be no proceedings.  If that were the case, then
 9       the case would be returned to the Procurator Fiscal
10       indicating Crown Counsel were of the view that no
11       proceedings should be taken.  There might be some
12       further instructions about doing further work or
13       whatever, in which case the indicter wouldn't see that
14       case.  The instructions might be proceed Sheriff and
15       jury -- sorry, I missed out there could be instructions
16       proceed Sheriff summary, in which case that would be
17       returned to Procurator Fiscal to launch a summary
18       prosecution.  It could be proceed Sheriff and jury.  If
19       it's proceed Sheriff and jury, the papers would also be
20       returned to the Procurator Fiscal to prepare a Sheriff
21       and jury indictment and to indict the accused in a
22       Sheriff court.
23           The instructions might be -- and in a murder almost
24       certainly -- well, would without question be proceed
25       High Court and at that stage the papers would then come
page 159
 1       to a High Court indicter.
 2   Q.  And that is someone like you?
 3   A.  Somebody like me.  I did not take the decision to indict
 4       cases.  I ought to make that absolutely clear because
 5       when I was spoken to by the Fingerprint Inquiry person
 6       he suggested to me that I had somehow been involved in
 7       the decision to indict Shirley McKie, which was not the
 8       case.  But I want to make that absolutely clear.
 9       Decisions to indict are decisions of Crown Counsel.
10       They might be implemented in Sheriff and jury cases by
11       the Procurator Fiscal but the decision -- no,
12       indictment -- no, case is indicted without the
13       instructions of Crown Counsel.  The indictment runs in
14       the name of the Lord Advocate.
15   Q.  Very well.  So we understand that the indicter has no
16       part in deciding whether somebody should be indicted,
17       but what I'm interested to find out is just what the
18       indicter did from day-to-day with the information in the
19       precognition in order to put together the indictment and
20       her role in the preparation of the case.
21   A.  Well, that's a good question.  I sometimes wondered
22       myself what I'm supposed to be doing because nobody told
23       me what I was supposed to be doing.  But I interpreted
24       the job as ensuring -- well, firstly, preparing a good
25       charge, drafting a good charge or, in many cases, series
page 160
 1       of charges.  To take an example, if you had a historical
 2       sexual abuse, child sexual abuse case with, say, three
 3       or four or five complainers, then depending on all the
 4       allegations and times when it all occurred you might
 5       have common law lewd and lib, you might have statute
 6       lewd and lib, different statutes applying at different
 7       times, you might have attempted rape, you might have
 8       rape, you might have in those days shameless indecency.
 9       You would have all sorts of considerations.
10           I indicted, for example, a case which concerned
11       historical child sexual abuse in the 1960s and 70s in
12       children's homes in Edinburgh where there were, I think,
13       something like upwards of 20 complainers all speaking
14       about abuse at different times in different forms, girls
15       and boys and I think the indictment in that case
16       extended to something in the region of 60-odd charges.
17           Some cases of course resulted only in one charge,
18       for example, the Asbury case or indeed the McKie case.
19   Q.  So it would come to this: you would have to use your
20       legal analytical skills to make sure you included in the
21       charges sufficient to allow all the necessary evidence
22       to be led and to make relevant charges?
23   A.  Scottish charges are narrative, in narrative format
24       which I understand is different from England, where I
25       think the indictment simply says, "You assaulted AB", or
page 161
 1       whoever.  In Scotland you have to narrate how the
 2       assault was committed also what the result of the
 3       assault was, if any, for example, to injury, to severe
 4       injury, to severe injury permanent disfigurement, to
 5       severe injury and permanent impairment, et cetera, to
 6       endangerment of life.  These are all aggravations, and
 7       you have to give the accused fair notice in the charge
 8       what exactly it is alleged that he has done.
 9           Sometimes in High Court drafting the charges became
10       extremely involved and from my perspective that was one
11       of the most satisfying parts of the job, was preparing a
12       charge that covered everything but no more than was
13       required, was in narrative format, in clear format and
14       gave the accused fair notice of what the crime was
15       alleging he or she had done.
16   Q.  Apart from formulating the charge properly to go on the
17       indictment, what was your role as an indicter in the
18       preparation of the case?
19   A.  Attached to the indictment is a list of the witnesses,
20       the Crown witnesses, which are the witnesses the Crown
21       may lead, may not necessarily lead them all but may lead
22       at the trial and a list of the productions which the
23       Crown would produce at the trial, what are sometimes
24       referred to by police officers as "the evidence".
25           The productions could be documentary productions
page 162
 1       which were listed as production 1, production 2,
 2       production 3.  That's pieces of paper where the
 3       evidential value is in the words or there could be
 4       labelled productions like things like a knife, like a
 5       cache of drugs, whatever.  They are listed separately as
 6       labels 1, labels 2, label 3, et cetera.  In a murder
 7       case or an involved case your production list could go
 8       up to over 100, quite easily.
 9           You also have to prepare the list of witnesses.  Now
10       that involved you going through the precognition
11       volumes, considering each witness and deciding whether
12       or not that witness should or should not be included in
13       the indictment.
14           Sometimes witnesses were considered irrelevant and
15       were taken out.  When I say taken out, I don't mean --
16       I'm not getting into issues of disclosure, which of
17       course, the landscape has completely changed since 1997,
18       but not all witnesses that are known to the Crown of
19       course go into the indictment, even today that's the
20       case, although if they've given a statement that
21       evidence should be disclosed.
22           Often in a big case your precognition would include
23       a volume of statements, police statements and/or
24       precognition statements where the precognoscer was of
25       the view that these were witnesses who were not
page 163
 1       essential in the case, did not add to the case.  You
 2       would have to consider that volume and decide has the
 3       precognoscer got it right.  There may be something in
 4       those witness statements that you felt would be helpful
 5       to lead or to have available at the trial.
 6           A lot of judgment was involved, obviously, and a lot
 7       of discretion insofar as the nuts and bolts of the thing
 8       was given over to the indicter.  In a sense, we were
 9       preparing an indictment in Crown Counsel's name which an
10       Advocate Depute would eventually sign, if you like, on
11       their behalf but without them, if you like, checking
12       everything that you were doing.  Obviously, they did not
13       check all your indictment decisions.  That was delegated
14       to you to do.
15   Q.  So it was your job to make sure that the witnesses that
16       were needed for the trial were listed and that
17       documentary and real productions were listed properly,
18       all the ones that would be needed for the trial?
19   A.  And properly spoken to in the evidence as well.  It was
20       not unusual for a production to find its way on to the
21       list and there was absolutely no reference to that
22       production in any statement.  It suddenly appeared,
23       obviously a police officer had recovered it from
24       somewhere, but there was no evidence, no statement in
25       the precognition from a police officer saying, "I found
page 164
 1       that knife under that hedge".  That was something you
 2       would have to raise with the precognoscer in your, what
 3       was in those days called a shopping list letter.  I
 4       don't know if you have heard that phrase.
 5   Q.  I think we can readily take from the term exactly what
 6       it was.
 7   A.  I understand the term's not used any more.  It was,
 8       shall we say, somewhat informal language but it found
 9       it's way into the Crown Office vocabulary.
10   Q.  So when you are indicting a case you might pick up
11       things that have perhaps been missed at an earlier stage
12       then you have to have draw that to somebody else's
13       attention and make sure the necessary preparation was
14       done and the necessary witness comes to be called to
15       court?
16   A.  The product of the indictment process, the product, was
17       a draft indictment which you prepared at Crown Office.
18       It was produced at Crown Office containing the charge,
19       or charges, the list of productions, documentary and
20       labels, and the list of witnesses and the second
21       product, apart from that, was a shopping list letter,
22       matters that you felt the Procurator Fiscal, the
23       precognoscer should be addressing before the trial.
24           Of course, as you know, probably, productions and
25       witnesses could be added later.  For example, one might
page 165
 1       be under great constraints of time in preparing the
 2       indictment, particularly in custody cases, bearing in
 3       mind we had to start the trial within 110 days of full
 4       committal.  The indictment has to be served 29 clear
 5       days, or did in those days, 29 clear days before that
 6       trial diet.  So quite often you were getting a
 7       precognition say in at Crown Office on a Thursday, let's
 8       say, you might have Crown Counsel's instructions by the
 9       Friday and you might have to serve an indictment to meet
10       the time by the following Thursday.  That's prepare a
11       draft, revise that draft with the Fiscal, engross it at
12       Crown Office, have it signed by an Advocate Depute and
13       send it out to the Fiscal to arrange service on the
14       accused at his place of custody if he was on custody or
15       at his domicile of citation if he was on bail.
16           So of course custody cases were the ones normally
17       time barred, with the accused being in custody.
18       Pressures were quite great in those days.  I don't know
19       what the situation is like now but I can assure you that
20       when I was there we were working under considerable
21       pressure of time.  So you were trying to do the best job
22       that you could reasonably do in the available time and
23       you were very much dependent on other people.
24           When the precognitions come in it wasn't unusual to
25       get precognitions on the Friday or the Thursday and then
page 166
 1       you would have to work on them over the weekend to get a
 2       draft indictment out on the Monday to be served, to be
 3       revised and then served on the Thursday.  Sometimes
 4       precognitions didn't arrive until the Monday for service
 5       on the Thursday and I can assure you I had many nights
 6       of no bed at all as I tried to go through all these
 7       cases as a conscientiously as I could in the time
 8       available.
 9           You were also dependent on the quality of the
10       precognition, the quality of the product that was
11       presented to you and I can say that quality
12       varied considerably.  Some jobs were excellent, some
13       were passable, average, satisfactory and some were,
14       frankly, not really presented to you in an indictable
15       form but we had to indict them.
16   Q.  If we can, perhaps, just for the moment at least, move
17       away from the generalities because I think you have very
18       helpfully for the Inquiry how things would work in, I
19       suppose, the normal sort of case that would come to you
20       and the sort of work that you would have to do.
21           I would like to ask you more specifically at this
22       stage about the McKie case and how you first came to be
23       involved in that.
24           The Inquiry has already heard that, unlike the order
25       of events that you have been telling us about, in the
page 167
 1       case against Ms McKie, which was a perjury case, a
 2       precognition was prepared before Ms McKie had even
 3       appeared on a petition and to help you and to give some
 4       context here I would like to show you a series of
 5       documents starting at CO3936.
 6           I think this is something you have seen probably
 7       quite recently in preparing your statement, Ms Climie,
 8       but I think this is an internal note to you that comes
 9       from the High Court file that was originally the file
10       for the case against Mr Asbury.
11   A.  That's correct.
12   Q.  I wonder if we could just have all the pages of this
13       side-by-side like we have with some of the other
14       documents.  Is it possible to make it a little bit
15       larger while doing that?
16           So we see a note addressed to you, Ms Climie, and
17       that's dated 2nd January 1998.  Is that from a
18       Mr Gallacher to you?
19   A.  No, that's actually a note by the then Deputy Crown
20       Agent, Mr Norman McFadyen.  I recognise his writing
21       because it was almost illegible and I frequently had
22       problems reading his writing.
23   Q.  I think we perhaps have that from time to time in the
24       Inquiry, Ms Climie, but if you look at this note what he
25       is saying to you is, "It would helpful if CC ..." and
page 168
 1       should we take that as Crown Counsel?
 2   A.  Do you want me to read it out for you?
 3   Q.  That would be very helpful.
 4   A.  "Ms Climie, it would be helpful if Crown Counsel can
 5       have your comments before instructing here.  My own view
 6       is that there is no reason not to prosecute and no
 7       reason to delay pending appeal.  Application can be made
 8       for release of productions ..."
 9   Q.  Now I think --
10   A.  I'm sorry, the next word is --
11   Q.  I think its open brackets, "Which" --
12   A.  "... (which can obviously be made available for purposes
13       of appeal).  It is incomprehensible that fingerprints
14       would have been planted in this case but given the
15       observations on Cardwell's ..."
16           And may I say the reference to Cardwell in that
17       format does sound discourteous but was regularly used in
18       internal notes.  Nobody considered that 12 years down
19       the line we would be examining these in an open forum.
20           "... but given the observations on Cardwell's
21       plausibility, it may indeed make sense to involve an
22       independent expert both on the question of
23       transfer/planting and [underlined] on the general basis
24       for concluding that fingerprint identification is
25       100 per cent reliable -- please pass directly to AD with
page 169
 1       this note", and the initials at the bottom are
 2       Mr McFadyen's and he has dated it 2nd January 1998.
 3   Q.  Before we move to your response to that and we do have
 4       that, I would like to look, please, at document
 5       CO2561.4.
 6           Ms Climie, the Inquiry has heard that this is part
 7       of the analysis of the evidence from the precognition in
 8       the case against Ms Cardwell or McKie -- and I wonder if
 9       we could focus in on the second paragraph there.  What
10       we see is that the precognoscer, Mrs Greaves, is
11       suggesting that:
12           "While SCRO (fingerprints) are independent from
13       Strathclyde Police and have compared the fingerprint
14       forms provided and the impression Y7 found in the house
15       of Marion Ross, Crown Counsel may wish to consider
16       whether or not an expert previously unconnected with the
17       case should make a further comparison.  In relation to
18       the articles which Chief Inspector Hogg has provided
19       relating to transplanted and faked fingerprints, Crown
20       Counsel are asked whether an expert in this field should
21       be instructed.  Chief Inspector Hogg does not consider
22       himself an expert in transplanted and faked
23       fingerprints.  The name Dr Terry Kent of the home office
24       at Sandwich has been mentioned as a possible expert."
25           Ms Climie, we have seen in a previous document the
page 170
 1       reference to the possibility of having a further view of
 2       the matter.
 3           So far as you understood, did the reference in
 4       Mr McFadyen's note arise from what we see here in the
 5       precognition --
 6   A.  Can I see Mr McFadyen's note again?
 7   Q.  Yes, of course you can.   (Pause)
 8   A.  Well, Mr McFadyen's note as I interpret it and obviously
 9       you will have to ask him what he was meaning -- he makes
10       reference to observations in the precognition on
11       Ms Cardwell's plausibility, whatever that means, and
12       he's of the view that we should -- it may make sense to
13       instruct an independent expert on two questions: the
14       question of transfer or planting.
15           Now can I just say that that's what we believed she
16       was suggesting had happened here.  She was saying, "This
17       fingerprint's not mine, it's been planted there for some
18       reason and", underlined, "on the general basis for
19       concluding that fingerprint identifications are 100
20       plausible".  Mr McFadyen has not suggested in that note,
21       as far as I can see it, that we should have Y7
22       independently looked at outwith SCRO, which I think was
23       the suggestion in the precognition because SCRO are
24       not -- well, they are independent of the police but they
25       are part of the police structure, as I understand it.
page 171
 1   Q.  Well, I wonder if we could just go back to 2561.4.  We
 2       had looked at the second paragraph there.  If we could
 3       focus in perhaps on the second and third paragraphs
 4       together please, if we look at the paragraph beginning,
 5       "The precognoscer", Ms Climie, you see that what is
 6       written there in the analysis is:
 7           "The precognoscer is aware that the police are
 8       extremely concerned that should the case against Shirley
 9       Cardwell proceed to a trial that a jury may not fully
10       understand the complexities of the case and the
11       infallible nature of fingerprint evidence.  They are
12       concerned that Shirley Cardwell will present well in
13       court and the jury will feel sympathetic towards her.
14       Fiona Davies, Crown junior, stated that when Shirley
15       Cardwell gave her evidence in court, 'It was the best
16       lying I have ever seen'."
17   A.  Can I just stop you there.  That's making an assumption
18       that she was lying.
19   Q.  Indeed so.  It might be I think what I have in mind in
20       drawing this to your attention is when Mr McFadyen is
21       referring to observations about Ms Cardwell's
22       plausibility he might be referring to what the
23       precognoscer was writing here?
24   A.  Possibly, yes.
25   Q.  It appears also that there is a concern on the part of
page 172
 1       the police that what is described at least as the
 2       infallible nature of fingerprint evidence might not be
 3       fully understood by the jury.
 4   A.  Mm-hm.
 5   Q.  Would it be fair to say that that is perhaps part of the
 6       context for the suggestion that a further expert should
 7       look at the matter?
 8   A.  I mean, obviously, Mr McFadyen would have to speak to
 9       his own note, okay.  But if you could put Mr McFadyen's
10       note up again, I took it to be that he was talking about
11       two things: the question of transfer or planting, which
12       was uppermost in our minds, and his other concern was
13       that the jury -- if it was a case before a judge alone,
14       it's within judicial knowledge and certainly I
15       understand that to be the position in England, it's
16       within judicial knowledge that no two people have the
17       same fingerprints and, in fact, no two people have the
18       same print on the same digits.  We would have to get --
19       if Ms Cardwell was continuing to deny this was her print
20       and the Crown was being put to the proof of the matter,
21       we would have to satisfy a jury beyond reasonable doubt
22       that this science or whatever you call it -- I know
23       there's an argument about whether it's a science or
24       whatever it is -- is reliable in the sense that no two
25       people have the same prints and if a fingerprint expert,
page 173
 1       comparison expert, looks at a lifted mark and an inked
 2       print and can identify, as it was in those days, 16
 3       identical -- I can't remember the words that they
 4       used -- 16 characteristics in sequence and agreement
 5       that that was proof.  You wouldn't get 16
 6       characteristics in sequence and agreement and of course
 7       no differences if it wasn't the same print.
 8           It was the general science behind fingerprinting
 9       that Mr McFadyen was, I think, trying to address here
10       and which is what I comprehended his note to be about
11       and that's how I took it forward from there.
12           Can I just say, it might be helpful and I've thought
13       about this since I wrote my statement, if I were to give
14       you an analogy from another area that I have been
15       involved in.  Would that be helpful?
16   Q.  We can perhaps see if it is, Ms Climie.  I don't want to
17       discourage you from saying anything that helps the
18       Inquiry.
19   A.  What I said there is about science, it's about people
20       and I believe there's a whole science of fingerprinting
21       stretching back to the 19th century, a man Galton, his
22       name is, I've heard of and other people.  It's been
23       established beyond, I would suggest, all doubt that no
24       two people have the same fingerprints, but we were going
25       to have to convey this to the jury, standing
page 174
 1       Ms Cardwell's complete and utter denial that she had
 2       been in this house and bearing in mind her plausibility
 3       which has been referred to.  That's only a subjective
 4       judgment of someone who was at the murder trial.
 5           The analogy -- what I see is two things, is the
 6       science of prints -- I'm maybe not explaining this very
 7       well but there's the science of prints which the
 8       scientists speak to and there's then fingerprint
 9       practitioners or experts, whatever you want to say, who
10       are trained and competent in the art, if that's the
11       right word, of comparing prints, lifted prints, lifted
12       marks, with inked prints and saying, "I'm satisfied that
13       these are from the same person".
14           One's a science and the other is, if you like, a
15       practice, a skill, a practice: it's not a science.
16           The example that I think I was -- the analogy that I
17       was trying to draw (and it may not be a very good one
18       but it's the best I can find) is when we are involved in
19       prosecutions arising out of fatal road accidents,
20       normally prosecutions now are taken in the High Court
21       under section 1 of the Road Traffic Act 1988, causing
22       death by dangerous driving.  Inevitably, there will be
23       evidence from a police crash investigator.  Now, the
24       police crash investigator will have surveyed the scene
25       of the accident, will have taken measurements, looked at
page 175
 1       all the physical evidence left after the crash and
 2       sometimes (not in all cases, sometimes) he has the
 3       training to take these various factors together and
 4       apply certain laws of physics (I understand the basic
 5       laws of motion as developed from Newton onwards; I'm not
 6       an expert in this matter) and can sometimes draw
 7       inferences from that applying laws of physics to
 8       conclude that the offending driver, the alleged
 9       offending driver, was driving at a speed of at least,
10       say, 50 miles per hour.
11           Now, I have been involved in cases where I've
12       thought to myself about presentation to the jury.  These
13       road traffic investigators are very, very good at their
14       job.  They are trained to survey an accident scene, get
15       the necessary data if they can (and it's not always
16       there) and then to apply the necessary formula.  It's
17       quite complex; they've got to find the coefficient of
18       friction of the road surface and apply it to reach this
19       evidence that the minimum speed the accused was going
20       with his wheels locked was such and such.
21           However, these officers are not scientists.  They
22       are no use -- and it's my experience because I've done
23       it -- at explaining the physical laws, the laws of
24       physics, the laws of motion which they are applying.  I
25       have on at least one case that I was involved in, a very
page 176
 1       anxious High Court prosecution of a driver who had run
 2       over a 13-year old girl, I have on that occasion gone
 3       and contacted the professor at Aberdeen University.
 4       Aberdeen University -- I don't know whether this is
 5       still the case, but Aberdeen University developed the
 6       course in Scotland where road traffic investigators were
 7       trained.  I have gone to that professor and I have
 8       obtained from him a statement in which he explains about
 9       these laws of motion.  These are universally accepted in
10       the world of science and have been for hundreds of years
11       now.  These are universally applied laws and just
12       explaining the scientific background.
13           Now, I took Mr McFadyen's note and how I interpreted
14       it in my instructions to the Fiscal to be of a similar
15       nature.  We were looking for scientific evidence from an
16       expert -- and I don't know who that expert would have
17       been; that was for the Fiscal to find -- who could give
18       to the jury evidence, expert evidence, explaining the
19       general basis for concluding that fingerprint
20       identification is 100 per cent reliable.  That's not
21       perhaps the best way of explaining it.
22           100 per cent reliable in the sense that no two
23       people have the same fingerprints; that's 100 per cent
24       established.  How it's applied -- you know, there can be
25       mistakes made by fingerprint comparison experts, you
page 177
 1       know.  That's not what he meant by 100 per cent
 2       reliable.  He wasn't referring to -- obviously the
 3       evidence is not always reliable dependent on the
 4       mistakes can be made by the fingerprint experts, but
 5       100 per cent reliable on its scientific basis.  That's
 6       what I took it he was looking for.
 7   MISS CARMICHAEL:  Thank you very much for that analogy,
 8       Ms Climie.  It may be that that is a convenient point on
 9       which to break.  I am sorry, you will have to come back
10       tomorrow.
11   THE CHAIRMAN:  We will have to ask you to come back
12       tomorrow.  We are sitting at 10.00.  Very good.  So we
13       will meet at 10.00 tomorrow morning.
14   (4.00 pm)
15        (Adjourned until 10.00 am the following morning)
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