page   1
 1                                        Thursday, 2nd July 2009
 2   (10.00 am)
 3                GILLIAN YUILLE CLIMIE (continued)
 4             Examined by MISS CARMICHAEL (continued)
 5   Q.  Good morning, Ms Climie?
 6   A.  Good morning.  I will try and speak not quite so close
 7       to the mic.
 8   Q.  I'm sure others will let us know if they can't hear.
 9           I would like to start, please, today by looking at a
10       document CO3935?
11   A.  I wonder if I could just clarify a few points from
12       yesterday before you proceed?
13   THE CHAIRMAN:  Yes.
14   A.  Would that be in order?
15   THE CHAIRMAN:  Yes, if there is something you want to --
16   A.  Just three points I wanted to make arising out of
17       yesterday.  Firstly, I think I may have in haste
18       slightly misinformed the Inquiry regarding the structure
19       of ADs back in 1997 and who did what as compared with
20       today and I was wondering if I would be permitted to go
21       over that again.
22   THE CHAIRMAN:  Yes.  I have to say that I think I know a
23       little about it because of another Inquiry I was engaged
24       in but I agree it's important people should understand.
25   A.  Yes, because as I am hoping to say later, if I am
page   2
 1       allowed the opportunity, I think this may, on one view,
 2       be possibly relevant, although obviously it's a matter
 3       for my Lord to decide what is relevant and what is not.
 4           In 1997, the structure of what's called Crown
 5       Counsel (which is a collective term for the law
 6       officers, Lord Advocate and the Solicitor-General for
 7       Scotland and the Advocate Deputes), the structure of the
 8       Advocate Deputes, part of that, was that there were
 9       Advocate Deputes and there was the Home Advocate Depute.
10           Now I don't know whether it's a formal appointment
11       of Home Advocate Depute or just a person known as the
12       Home Advocate Depute.  The Home Advocate Depute's role
13       was to timetable the Advocate Deputes to the various
14       courts and act as a, kind of, listening ear or adviser
15       or whatever.  He was based mainly, if not exclusively,
16       in Crown Office.
17           He occasionally did trials on circuit but, to my
18       recollection, not very often.  He obviously had a role
19       in the Appeal Court.
20           Now, unlike today, there was no division between
21       Senior Advocate Deputes and Advocate Deputes.  Every
22       Advocate Depute except the Home Advocate Depute was an
23       Advocate Depute.  An Advocate Depute could have been in
24       the job a week or could have been in the job almost
25       three years.  He or she could be sitting in Crown Office
page   3
 1       considering and marking cases for prosecution.
 2           Now the situation today that has radically changed,
 3       and my recollection it was around 2002 following a
 4       review and as I think I indicated yesterday there are
 5       now three levels of Advocate Depute.  The Home Advocate
 6       Depute is now the Principal Advocate Depute sometimes
 7       referred to as the "PAD".
 8           There are senior Advocate Deputes whose role is
 9       mainly based in Edinburgh marking cases, considering
10       papers and doing the Appeal Court.  They occasionally --
11       and I don't know how often -- but in high profile,
12       difficult or complex trials they may be involved in
13       trial work and then there are Trial Deputes who, as the
14       name suggests, do trials and do not get involved in
15       marking cases.  They may if promoted to Senior Advocate
16       Deputes move on to that.
17           The situation in 1997 was very, in my humble
18       opinion, unsatisfactory in that somebody could walk in
19       from the Scottish bar with no prosecution experience,
20       appointed as an Advocate Depute and the next day could
21       be considering and marking cases for prosecution.
22           I just wanted to make that absolutely clear.
23   THE CHAIRMAN:  Yes, very good.  Thank you.
24   A.  There was another point I wanted to make if we could
25       have reference back, please, to the Deputy Crown Agent
page   4
 1       Mr McFadyen's note to myself, the one I was having
 2       difficulty reading yesterday.
 3   THE CHAIRMAN:  I think we have it on screen.
 4   MISS CARMICHAEL:  It's a different reference.
 5   A.  That's my note.
 6   MISS CARMICHAEL:  If we could go back to document we looked
 7       at yesterday which is CO3916.
 8   A.  Actually, I'm sorry, before we look at that -- I'm sorry
 9       to cause confusion -- could we have a look at the two
10       paragraphs of Mrs Greaves' precognition you showed me
11       yesterday before we come to that?
12   MISS CARMICHAEL:  Sir, the reference for that, if it is
13       helpful is, 2561.4.
14   THE CHAIRMAN:  Thank you very much.
15   A.  Could we have the two paragraphs that you showed me
16       highlighted, one on top of the other please?
17   THE CHAIRMAN:  You want them beside each other?
18   A.  No, that's fine, one on top of the other is fine.
19   THE CHAIRMAN:  What is the passage you want to refer to?
20   A.  I'm looking at the first paragraph that begins:
21           "While SCRO (fingerprints) are independent from
22       Strathclyde Police ..."
23           I'm not sure that's strictly -- they are independent
24       from Strathclyde Police but they are not independent
25       from the police.  They were controlled by the Executive
page   5
 1       Committee which was made up of the Chief Constables of
 2       the Scottish Forces but in any event:
 3           "While SCRO (fingerprints) are independent from
 4       Strathclyde Police and have compared the fingerprint
 5       forms provided and the impression Y7 found in the house
 6       of Marion Ross, Crown Counsel may wish to consider
 7       whether or not an expert previously unconnected with the
 8       case should make a further comparison."
 9           That's a point Denise is making.  And then she goes
10       on to talk about materials that she's received from the
11       Chief Inspector Hogg here, I understand is a chief
12       Scenes of Crime man, and she talks about Crown Counsel
13       asking for an expert in this field to be instructed, ie
14       faking or forgery of prints and the name of the Dr Terry
15       Kent at the Home Office at Sandwich, which I believe is
16       in Kent, has been mentioned as a possible expert.
17       That's one paragraph.
18           The next paragraph below talks about police being
19       concerned that if the case against Mrs Cardwell proceeds
20       to a trial that a jury may not fully understand the
21       complexities.  They are concerned Shirley Cardwell will
22       present well in and there's a comment about a comment by
23       Fiona Davies.  That is the paragraph which I think
24       referred to as the plausibility, alleged plausibility.
25       If she's telling the truth, I don't ... but anyway
page   6
 1       that's the paragraph I think the Deputy Crown Agent
 2       homed in on.
 3           If I could have the Deputy Crown Agent's note up,
 4       please, the practically illegible one and if we could
 5       have it side-by-side, please, I'm pointing to -- I'm
 6       starting at the bottom of the left-hand column:
 7           "It is incomprehensible that fingerprints would have
 8       been planted in this case, [I've got to say that was my
 9       view as well] but given the observations on
10       Ms Cardwell's plausibility it may indeed make sense to
11       involve an independent expert both on the question of
12       transfer/planting and on the general basis for
13       concluding that fingerprint identification is
14       100 per cent reliable."
15           Now, the point I'm making there is I have to assume
16       that the Deputy Crown Agent had read Mrs Greaves'
17       comments.  Mrs Greaves' has specifically suggested
18       because of the alleged lack of independence of SCRO
19       fingerprints from Strathclyde Police an independent
20       expert be involved to, if you like, cross-check.  That
21       was not picked up, as you will see, in the Deputy Crown
22       Agent's comments to me.  As I was trying to, rather
23       without much success yesterday, I don't think -- I think
24       my analogy went down like a dead balloon.
25   MISS CARMICHAEL:  No, the Inquiry was grateful for the
page   7
 1       thought you had obviously given to that Ms Climie.
 2   A.  I was trying to point out yesterday afternoon that what
 3       the Crown agent was suggesting -- sorry, the Deputy
 4       Crown Agent was suggesting yesterday was two aspects to
 5       be looked at: transfer/planting, which we had already
 6       decided we would look at anyway, and on the general
 7       basis, the general basis of concluding fingerprint
 8       identification is 100 per cent reliable.  There's
 9       nowhere there that the Deputy Crown Agent picked up or
10       took on board Denise's suggestion that we have Y7
11       independently looked at outwith SCRO .
12   Q.  Thank you for that.
13   THE CHAIRMAN:  Or, if he did, he didn't find it necessary
14       because he suggested something different.
15   A.  Well, he's picked up one angle --
16   THE CHAIRMAN:  Yes, he did but the second --
17   A.  -- but not the other angle.
18   THE CHAIRMAN:  I think we have the point.
19   A.  Now can I also before we move on make it absolutely
20       clear, in case members of the public are not aware of
21       this, in Crown Office there's the law officers and
22       Advocate Depute structure.  There's a parallel structure
23       which is the, if you like, the legal staff in the Crown
24       Office.  I'm talking about 1997.  Things have changed a
25       lot.  But in 1997 there was a Crown Agent who was an
page   8
 1       overall head of the -- Civil Service head of the
 2       department and there was various people under him one of
 3       whom was the Deputy Crown Agent.  Noe the Deputy Crown
 4       Agent had overall responsibility for all the operational
 5       units in Crown Office.  At the time there were three:
 6       High Court Unit, which I was a member of; Appeals Unit;
 7       and what was called then called Fraud and Specialist
 8       Services Unit.  My boss at the time, Mr Billy Gallacher,
 9       if you like, reported to Mr McFadyen and I reported to
10       Mr Gallacher.  So, if you like, Mr McFadyen was, to all
11       intents and purposes, my ultimate boss.  He's not Crown
12       Counsel, but I would be very, very seriously influenced
13       by what he said in any suggestion.
14           And if I can also make the point what was going on
15       here, this exchange of notes, et cetera, et cetera, me
16       being asked to look at a precognition, was not the
17       normal practice.  The normal practice, as I explained
18       yesterday: a precognition came in, it was looked at by
19       Crown Counsel, they made a decision, I was passed it
20       thereafter to indict if it was going to High Court.
21           Occasionally, I did get involved in, if you like,
22       discussions by note or indeed orally with an Advocate
23       Depute about a case but this procedure that we're going
24       through was not the norm and if any misunderstanding
25       arose from the exchange of notes then I'm sorry about
page   9
 1       that but I did my best at the time.
 2   THE CHAIRMAN:  This was addressed to you by the Deputy Crown
 3       Agent.
 4   A.  I understand it was addressed to me because as you will
 5       know from the paperwork which I was shown by the
 6       Fingerprint Inquiry team I've been very, very much
 7       involved in the Asbury case -- I'm not it's pronounced
 8       "AZ-bury" or "ACE-bury"?
 9   THE CHAIRMAN:  We have been calling it Asbury.
10   A.  I'll call it Asbury then, sorry.  I don't mean any
11       discourtesy to the gentleman.  I'll call him Asbury.
12           I'd been then involved in the case against Mr Asbury
13       and particularly the fingerprint angle of it and of
14       course at the time we were dealing with the indicting of
15       Mr Asbury, the fingerprint Y7 was very much at the
16       forefront of that.  I looked at that in great detail,
17       giving very detailed and explicit instructions to the
18       Procurator Fiscal at Kilmarnock.  So although I wasn't
19       involved in the trial of Mr Asbury and in the note that
20       the trial Advocate Depute in Mr Asbury passed to, I
21       understand, the Lord Advocate in June 1997 saying, "I
22       want this looked into, whether this police
23       officer committed perjury in the trial".  I wasn't
24       involved in that.
25           I wasn't then involved in the Glasgow PFO
page  10
 1       investigation into the precognition.  That was
 2       Mrs Greaves', Denise Greaves' job.  I simply got
 3       involved in January 1998.  The Deputy Crown Agent,
 4       Mr McFadyen, is obviously aware that I had been involved
 5       in that and there was a lot of discussion about that in
 6       the early months of 1997.  He would have known that I
 7       had been involved in that and he's decided, "I'll ask
 8       Ms Climie to have a look at this", and he's put his own
 9       views and, as he says at the end of the note, I was to
10       look at it -- well, "It would be helpful if CC can have
11       your comments here", and I was then to give my comments
12       and pass directly to the Advocate Depute with his note,
13       with my note and with the papers.  That would be the
14       precognition of Shirley McKie.
15           I would imagine, because this correspondence was
16       found in the Asbury file, this was all -- all this was
17       taking place against the context of the Asbury papers.
18       So the Asbury papers would be with all this that went to
19       the Advocate Depute at this stage.  So I just want to
20       make that absolutely quite clear before we move on to
21       what I did.
22   MISS CARMICHAEL:  I will certainly try to confine my
23       questions to what you were directly involve in,
24       Ms Climie.
25           So if we could return then to document CO3935 and if
page  11
 1       we could have all of that up on the screen at once, that
 2       would be helpful.  If we could have that slightly larger
 3       but still have it all on the screen that would be
 4       helpful.
 5           This is a minute, I think, from you to the duty AD
 6       and if I can just read that out myself to get that
 7       clearly into the record it's addressed to duty AD, it's
 8       dated 15th January 1998 and has your initials and foot?
 9   A.  GYC are my initials, yes.
10   Q.  It reads:
11           "Please see DCA's attached note.  My involvement in
12       indicting the murder case in David Asbury went to trial
13       went to trial May/June '97 at Glasgow, Asbury convicted
14       of murder, appeal pending.  AD [that's Advocate Depute].
15       I have discussed this matter with him briefly last week
16       and he is of the view that, if there is a sufficiency,
17       former Detective Constable Cardwell should be prosecuted
18       for perjury.  There would appear to be no need to delay
19       proceeding v Cardwell until the disposal of Asbury's
20       appeal.  There is provision for getting hold of the
21       productions in the murder case which are required for
22       the perjury case see section 106 (7) ..."
23           I think we can take that as Criminal Procedure
24       (Scotland) Act?
25   A.  Criminal Procedure (Scotland) Act 1995.
page  12
 1   Q.  We move on to the next page of that document:
 2           "Cardwell has not yet appeared on petition.  I
 3       recommend that the further fingerprint expert be
 4       pursued" --
 5   A.  The expert evidence be pursued.
 6   Q.  Thank you for that:
 7           " ... see page 37 for precognition", which is the
 8       page we have already looked at in the Inquiry,
 9       Ms Climie.
10           "The Home Office expert should be asked to give
11       expert evidence on (a) the possibility of the
12       transfer/planting of the fingerprint and (b) the general
13       basis for concluding that fingerprint identification is
14       100 per cent reliable."
15   A.  Yes, I've obviously cribbed that from the Deputy Crown
16       Agent's note.  I will attribute that to him and
17       acknowledge his assistance there.
18   Q.  I perhaps don't need to ask you more about that section
19       then.  Your note goes on in opened brackets:
20           "I understand although I do not know the detail" --
21   A.  Can I say I underlined the word "understand" to stress
22       that I'm not sure but I believe, I have heard or there's
23       a suggestion been made to me.
24   Q.  "... although I do not know the detail that the English
25       [and again that's underlined] standard for matching
page  13
 1       prints is more stringent than that used in Scotland,
 2       even in Scotland the number of points of comparison
 3       required before a match is declared is higher than the
 4       number required in some ..." and then we move on to the
 5       next page "other jurisdictions.  It might be an idea to
 6       pursue whether Y7 can be matched to Shirley Cardwell on
 7       the English standard.  Presumably the Home Office expert
 8       could deal with this.  CC [I think that is Crown
 9       Counsel's] instructions are sought."
10           Now, we have discussed yesterday your points A and B
11       and the possibility of transfer/planting and the basis
12       for concluding that fingerprint identification is
13       100 per cent reliable and, as we have said today, we see
14       that relates back to Mr McFadyen's note there.
15           Just dealing with the point about why you thought it
16       might be an idea to pursue the match with Y7 on the
17       English standard, I would like to ask you why you
18       thought that might be an idea.
19   A.  Right.  Well, you have to understand that I don't have a
20       recollection today of writing these notes.  I see these
21       notes, they are my writing, I know I wrote them but what
22       was going through my head, what the thought process
23       going through my head, I cannot swear 100 per cent that
24       I remember.  I hope that can be understood when it's
25       12 years ago.
page  14
 1   THE CHAIRMAN:  That's perfectly reasonable.
 2   MISS CARMICHAEL:  I think one can understand that.  If we
 3       perhaps put it as asking for your best recollection as
 4       you can give it to the Chairman today.
 5   A.  I have thought about this since the Fingerprint Inquiry
 6       expert came to see me and may I say I was only
 7       approached in March and I saw him within a week and we
 8       talked about this and I've thought about it.  I thought
 9       a lot about it and I've looked again at the paperwork,
10       the copy paperwork that was provided to me which is
11       before you now.
12           My best recollection -- and it's a matter for the
13       Inquiry whether you accept this or not.  I mean, I
14       wouldn't swear my own life on it but my best
15       recollection is that that little extra bit was put in
16       almost as a subset of the -- and I can't read because
17       it's page 2, if you could bring up page 2 --
18   Q.  If you make that larger for the witness please?
19   A.  -- of B, you will see it comes in parenthesis after the
20       end of point B, the general basis for concluding that
21       fingerprint identification is 100 per cent reliable.
22           Now, as I tried to get over to you yesterday -- and
23       I don't know whether I succeeded; I tried my best.  I'm
24       not very articulate but I tried to explain to you
25       yesterday that what I was looking for there, what I
page  15
 1       thought the Deputy Crown Agent was looking for and what
 2       I took on, was a scientist versed in fingerprints.  Is
 3       it ridgeology or something?  Is there a science
 4       ridgeology or something?
 5   Q.  I suspect we will talk a lot about that in due course.
 6   A.  Right, somebody like your Swiss man I believe you've got
 7       to advise you, maybe not quite of that eminence but
 8       somebody like that, to come along, tell the jury -- and
 9       remember there are 15 people who probably don't know
10       anything about fingerprints or never really thought
11       about it much -- to tell the jury about fingerprints,
12       how they are unique, how that was established.  I don't
13       know how that was established.  I imagine they have just
14       done empirical experiments over years, I don't know.  I
15       imagine that's how it's been established and talk about
16       ridge endings and is it bifurcations?  Is that right
17       pronunciation?
18   Q.  We have certainly heard that word, Ms Climie.
19   A.  All this stuff.
20           Now, I know that fingerprint experts working in SCRO
21       can do that and probably many of them can do it very
22       well.  I did have a look at the evidence of Mr Geddes on
23       the Internet and I've got to say I learnt a lot from it.
24       I wish I'd known all that back in 1998.
25           I wanted somebody to come and be authoritative on
page  16
 1       the scientific line and then we could leave the
 2       fingerprint experts and SCRO, Mr Macpherson and his
 3       colleagues, to just do what they do, which is look at,
 4       with the benefit of experience, training and high skill,
 5       look at the crime scene mark, the crime scene print and
 6       tell us why they formed a match.
 7           I expected that the fingerprint person I was looking
 8       for would explain the basis for the 16-point standard,
 9       which I've got to say I was aware was a high standard
10       for evidence presentation in court, higher than most
11       jurisdictions, to explain the rationale for it and all
12       this kind of background.
13           Now, I anticipated that the person doing this would
14       be Dr -- sorry, Mr Kent, who of course works in the
15       English criminal justice system.  Now, I knew that the
16       English criminal justice system worked to a 16-point
17       standard.  Somewhere along the line -- and I don't know
18       where it came from, it's possibly Mrs Greaves because I
19       think there's a reference in later correspondence --
20   Q.  I think we will look at that in due course, yes.
21   A.  Somewhere along the line I have picked up -- and this is
22       probably me being too smart by half and living to regret
23       it -- I've picked up that perhaps there is some dubiety,
24       not in identifying ridge characteristics in common but
25       in deciding or having a common view of what a ridge
page  17
 1       characteristic is and how much it counts towards the 16.
 2       As I think I say later, I'd heard this expression lake
 3       or something --
 4   Q.  I think I can perhaps take that briefly and then we will
 5       come to your own note about that later.
 6   A.  So this in parenthesis was a parenthesis to point B.  It
 7       was to be a development of point B.  I was hoping that
 8       the English expert, if there is a difference in
 9       how Scotland and England systems work there -- and I
10       didn't know that there was and I still don't know if
11       there is -- if there is, if there was in 1997, he was
12       going -- I was going to suggest to him that he looked at
13       Y7 as part of his work and say whether or not it could
14       be matched for court purposes on the English basis
15       because the way I saw it, if you've got 16
16       characteristics in common under Scotland and if there is
17       this difference, potentially you could be down to 8 if
18       each -- you could be down to 8 on the English system.
19       I'm not sure if I'm making that clear.  I see
20       furrowed brows.
21   Q.  Perhaps again I can put a suggestion to you and you will
22       tell me if I am wrong.  I think perhaps what you are
23       saying is because your understanding was that under the
24       English system it might be that something that the
25       Scottish experts counted as two the English counted as
page  18
 1       1, on an extreme case you would have halved the number
 2       of 16.
 3   A.  Exactly.  I mean, if everyone -- if every characteristic
 4       that the Scots -- if every characteristic that
 5       a Scottish fingerprint person had counted up to their 16
 6       was, in fact, one of these potential double counts, then
 7       you could be down to 8 --
 8   THE CHAIRMAN:  Quite --
 9   A.  -- on the English system.  Now, as I said to you before,
10       I'm living to regret this.  I was being too clever by
11       half here.  I wish I'd never put it in because I think
12       it's been completely misinterpreted and I was suggesting
13       a cross-check that I somehow did not believe or accept
14       at that time SCRO.  I had no reason to not accept SCRO's
15       evidence that they'd a match here.  That evidence had
16       been presented unchallenged at the Asbury trial.  That
17       evidence and other fingerprint evidence had been
18       accepted unchallenged at the Asbury trial and I
19       believe -- again, I may be reading in later knowledge
20       into this -- but I believe I knew at the time -- again,
21       I'm not swearing to this -- I believe I knew at the time
22       that an independent expert instructed by Mr Asbury's
23       solicitor in Kilmarnock, I think it was McIntosh &
24       Wyllie, had looked at all of the fingerprint evidence
25       and had passed it, for want of a better word.
page  19
 1   THE CHAIRMAN:  I think that explains very clearly what you
 2       had in mind, what you now believe you had in mind.
 3   MISS CARMICHAEL:  That's very helpful, Ms Climie.  It may be
 4       we can perhaps move on to the next document.  That is
 5       CO3934.
 6   A.  Before we move on to this, could I just point out that
 7       you will recall there was -- I don't know if it's been
 8       covered in evidence -- there was a very -- not a
 9       detailed -- but there was a note, I think it was 5th
10       June 1997, from Alan Dewar who was Advocate Depute in
11       the Asbury trial.  I think it was written the day after
12       Asbury was convicted.
13   Q.  I can probably help you with that, Ms Climie.  The way
14       the Inquiry is working is we are not looking at every
15       document in the file in oral evidence and the Chairman
16       is aware of the existance of Mr Dewar's note and indeed
17       it's content.
18   A.  You may not have looked at it but can I just point out
19       that note would have been in the papers of the Asbury
20       case which would have been passed to the Advocate Depute
21       with all this material that we have been discussing and
22       I think it's got to be looked at in that context.
23   Q.  Well, that gives helpful background, Ms Climie.
24           What we are looking at now is a note back from the
25       Advocate Depute who would, of course, as you say, have
page  20
 1       had the file with Mr Dewar's note in it and we think
 2       this is a note from a Miss Patterson who sadly has died
 3       since then --
 4   A.  But when I saw the note I didn't recognise the writing
 5       at all.  Most of the Advocate Deputes writing -- for
 6       example, I recognised Mr Moynihan's straight away when I
 7       looked at the Asbury file.  When I saw this I didn't
 8       recognise the writing.
 9           However, the Fingerprint Inquiry man -- I think
10       Mr Grady -- very kindly and helpfully told me it was
11       Jane Patterson's and, while I wouldn't have recognised
12       the writing, I do remember Miss Patterson who, as you
13       related, has sadly since died.
14           Before we come on to that, can I indicate just
15       before we get into the detail of this, I told you about
16       inexperienced Advocate Deputes and I'm aware of
17       the sensitivity here given the passing of Miss Patterson
18       but I have to say that I know that Miss Patterson was
19       inexperienced at this time.  The reason that I know that
20       she was inexperienced -- I mean, obviously Advocate
21       Deputes came, did their three years, moved on and new
22       ones came, it was a rolling sort of programme -- how I
23       know that Miss Patterson was inexperienced was that I
24       remember her quite well.  She came into Crown Office
25       from the Scottish Bar.  She didn't take to the work.  I
page  21
 1       don't know what, it didn't suit her, and she resigned
 2       after a matter of months and so she never, if you
 3       like, became -- you know, she didn't do the full three
 4       years.  It was fairly unusual for somebody not to
 5       complete the full three years, at least, some did more.
 6           What I was pointing out earlier today is that today
 7       an Advocate Depute of Miss Patterson's experience -- she
 8       couldn't have had more than a few months on
 9       15th January 1998.
10   THE CHAIRMAN:  She wouldn't be doing this sort of work.
11   A.  Would not be doing this sort of work.
12   MISS CARMICHAEL:  That's helpful to know.
13           Turning to the note itself, what Miss Patterson has
14       written there is:
15           "Please indict High Court.  Crown Counsel considers
16       that independent experts should be instructed re the
17       fingerprint comparison and on the question of
18       planting/reliability of fingerprint identification."
19   A.  Can I just say that's a very unclear, standing the
20       detail provided in the DCA's note and my note, I think
21       that's very unclear.  What does she mean?
22   Q.  Well, if we go on, I suppose it's perhaps in some ways
23       the latter part of the note that we come to focus on in
24       these proceedings:
25           "If the English requirement is more stringent, it
page  22
 1       would be helpful if the expert making yet another
 2       comparison could do so to the English requirements.  In
 3       due course, a transcript of the evidence (relevant) will
 4       be required."
 5   A.  Another aspect -- there's two aspects I would point out
 6       there to inexperience, okay?  Firstly, I had raised, if
 7       you can look back at my note --
 8   THE CHAIRMAN:  You have raised three points really.
 9   A.  Well, apart from that, my Lord, apart from the points
10       about the fingerprint evidence there's two other matters
11       there I'd like to point out.
12           Firstly, I had raised, I think, the question of
13       petition in my note.  Could we look back at my note?
14   THE CHAIRMAN:  I think we remember you did raise the issue.
15   MISS CARMICHAEL:  I want to move forward.  I don't wish to
16       cut you off from anything you --
17   A.  You've got to understand --
18   Q.  We have to go forward, in fact --
19   A.  You have to understand -- sorry, I didn't mean to
20       interrupt.  You have to understand this correspondence
21       in its full context if you're going to understand it.
22       There's no point looking at it --
23   THE CHAIRMAN:  We will go back to the document one more
24       time.  Now what is the point you want to make on that?
25   A.  I think it's the top of page 2.
page  23
 1   THE CHAIRMAN:  Yes.
 2   A.  And, again, my apologies for the way it's written
 3       because I'm very sensitive of how we've written these
 4       things and they are being looked at now:
 5           "Cardwell has not yet his appeared on petition", I
 6       should have of course have written Mrs Cardwell,
 7       "Mrs Cardwell has not yet written on petition."  So I
 8       drew that to her attention and that was not addressed in
 9       the note she's written back.
10   MISS CARMICHAEL:  She's referred to moving on to indict
11       where --
12   A.  It may have been my fault, I should have really
13       canvassed in this note further, you know, we have
14       decisions to make about petition, et cetera, et cetera.
15       I didn't do that.  Again, my fault probably but she has
16       not addressed that.
17           If we could go back to Miss Patterson's note,
18       because there's a second point, you will see that she's
19       put, "Please indict High Court".  Now, a perjury
20       instruction had to come from a Law Officer -- well, I'm
21       not sure only if it was a police officer but certainly
22       if it was a police officer.  So the normal route would
23       have been she would have prepared a note to the Law
24       Officer, Solicitor-General or Lord Advocate saying,
25       "I've looked at this.  I'm of a view we should indict
page  24
 1       this lady in the High Court on perjury".  So she sent it
 2       back to me saying, "Please indict High Court".
 3           Now I'm sorry -- criticise me if you like -- but
 4       when I got that back it was too vague.  I knew it should
 5       have gone to a Law Officer.  It didn't address the
 6       question of petition and it wasn't, certainly in the
 7       first paragraph very clear, what she meant.  Was she
 8       adopting what I had said in my note?  I don't know.
 9   Q.  Well, in any event I think you do pick up on matters
10       that concerned you about this note in the next document
11       that we go to, CO3933.
12           Again, if we could have the whole document up.  This
13       is I think your note --
14   A.  I don't think that's the whole document.
15   Q.  I think it's not because I think we see, again, that you
16       respond on 15th January here.  If we could look at the
17       first page --
18   A.  Can I just say I've obviously got the note back from
19       Jane Patterson and I've read it and I've thought, no,
20       I'm not going to indict this case.  I'm going to refer
21       it back to the Deputy Crown Agent from where it had come
22       to me with some comments.  Now, I could not -- the
23       way Crown Office worked, an Advocate Depute could refer
24       papers to a Law Officer.  The Deputy Crown Agent and
25       possibly the head of the High Court Unit or the head of
page  25
 1       the Appeals Unit or the heads of the unit could
 2       likewise, I'm not sure about that, but I certainly could
 3       not write a letter Sol-Gen, you know.  It wasn't for me.
 4           So I obviously considered here the best thing to do
 5       was for me to send everything back, including what's
 6       happened before, including Jane Patterson's note to the
 7       Deputy Crown Agent with another note which I've done
 8       here.
 9   Q.  The point, as I think you already indicated to us, that
10       Ms Cardwell hadn't in fact appeared on petition at that
11       stage and you felt that would be the appropriate first
12       step.
13           You go on to say:
14           "Before placing her on petition I am of the view
15       that the further fingerprint expert evidence angle
16       should be pursued.  This may take some time."
17           You then go on to weigh up the pros and cons of
18       placing the lady on petition at that stage.
19   A.  Can I just say that the paragraph about the Mounted
20       Branch, I don't know where I knew that.  I must have
21       been told that.  About Strathclyde Police having the
22       benefit of her services ... it does read rather
23       facetious and, again, I have to apologise for that.  I'm
24       aware of the people now, Ms McKie herself and her
25       father, et cetera, who are now reading this and I'm not
page  26
 1       proud of the way I phrased that.
 2   Q.  If we move on to the second page -- thank you for your
 3       comment on that -- but you say:
 4           "Re the English standard for fingerprint
 5       identification being higher than that applying in
 6       Scotland I understand that where there is a lake in the
 7       ridges Scottish practice counts both the top and the
 8       bottom as a separate identical ridge characteristic
 9       whereas English practice would count this only as ...",
10       and then if we move on to page 3 I think we probably
11       have the word one deleted --
12   A.  I think it's been holed through.
13   Q.  "... towards the 16 being looked for.  I would be
14       grateful for your advice/instruction."
15   A.  I was hoping the Deputy Crown Agent would take a hold of
16       this and would consult a Law Officer and tell me what to
17       do, basically.
18   Q.  You have recorded there your own understanding about the
19       position as it might differ as between England and
20       Scotland.
21           Now --
22   A.  That's just really an expansion of what I've written
23       before.
24   Q.  Indeed.
25           Now, as you said, it's important to look at this all
page  27
 1       in its proper context and although the next document is
 2       not one authored by you we will look at it at this stage
 3       which is CO3932.  Again, there is a further page to this
 4       document we might want to have a little larger.  That I
 5       think is the procedure that you have indicated, the
 6       matter being passed upwards by Mr McFadyen to the
 7       Solicitor-General?
 8   A.  Although I didn't state expressly to Mr McFadyen he
 9       should send on to a Law Officer, he's so experienced --
10       he is the most experienced -- everybody had the greatest
11       respect for Mr McFadyen's legal and organisational and
12       every form of ability.  So he's picked it up and he's
13       forwarded it to the Solicitor-General.
14   Q.  What he says is:
15           "Solicitor-General, I think you should see these
16       papers at this stage.  Although the further fingerprint
17       work may take a little time, I would be reluctant to
18       delay placing Cardwell on a petition.  AD has instructed
19       High Court pro [I think we can take it as proceedings or
20       proceed] but technically and on the merits I think this
21       should come to you."
22   A.  That suggests to me that what was being asked of
23       Sol-Gen, his decision was: are we going to indict this
24       lady?  Are you going to back the Advocate Depute who
25       instructed that she should be indicted?
page  28
 1   Q.  And it's pointed out this is perjury in the course of
 2       duty?
 3   A.  The Solicitor-General won't get involved in decisions
 4       about putting people on petition.  I mean, that's not a
 5       Law Officer decision.  The decision that the Law
 6       Officer's being asked for here is are we going to indict
 7       this lady on the basis of the evidence we have or are we
 8       not?
 9   Q.  There is then I think a PS that we don't need to dwell
10       on about the precise form of the charge.
11           You read this, really, as asking for a pretty
12       substantive consideration by the Law Officer?
13   A.  Yes.  Putting somebody on petition is something that the
14       most junior Procurator Fiscal in any Fiscals' Office can
15       do without any -- well, they might consult a more senior
16       Procurator Fiscal depending on the local rules but
17       putting somebody on petition is not a decision for the
18       Solicitor-General.  It's a preliminary stage.
19           What the Advocate Depute, Jane Patterson, had
20       instructed was indictment in the High Court for perjury
21       and Norman McFadyen is asking the Solicitor-General to
22       back this.  There's also obviously talk about not
23       delaying the petition for the further evidence, et
24       cetera, but the Solicitor-General's being asked, you
25       know, should we indict this person.
page  29
 1   Q.  We can see the Solicitor-General's response if we go to
 2       CO3931 and --
 3   A.  Can I just say, I understand that this note followed a
 4       background of discussion, oral discussion, between the
 5       Deputy Crown Agent and the Solicitor-General which is
 6       not documented in writing.  I think I'm right in saying
 7       that.
 8   Q.  Well, if that is something you have personal knowledge
 9       of --
10   A.  No, I think it's something I picked up from the
11       paperwork.
12   Q.  I see.
13           The Solicitor-General's response is dated
14       20th January 1998 and he says:
15           "My only hesitation in placing Cardwell on petition
16       at this stage is the fact that the productions are
17       required for the ongoing appeal.  That said, in my
18       opinion, Cardwell should be put on petition in early
19       course.  Could you please have a word with me about
20       timing.  Clearly we need a further independent expert
21       but that need not hold up the petition."
22   A.  Can I just say that last two and a bit lines, clearly
23       need a further independent expert, that's got to be read
24       in the context of what's gone on before which was an
25       independent expert on planting, transfer, forgery, an
page  30
 1       independent expert to talk about the science, if you
 2       like, of fingerprints and if the English standard is
 3       higher then that person to look at Y7 in the context of
 4       the English standard.  That's what I took that to mean.
 5       He's not reiterated all that's gone on before but he's
 6       not added anything or taken anything away from what's
 7       gone on before.  He's just saying, "Clearly we need a
 8       further" -- again, loose language -- "a further
 9       independent expert".  We didn't have independent experts
10       except for SCRO so I don't know where the word "further"
11       comes in.
12   Q.  In fact, we do have a little more insight perhaps now
13       from the Solicitor-General at the time if we look at
14       document FI0057.9, please.
15           This is part of a statement that the Inquiry has
16       from Lord Boyd, who was the Solicitor-General --
17   A.  I've not seen this before.
18   Q.  No, I understand that but if we could look at
19       paragraph 21, Lord Boyd says, as I think you picked up
20       there:
21           "I note that I have not specified the purpose for
22       which an independent expert should be engaged.  At this
23       stage I cannot recall whether that issue was a
24       significant consideration for me.  However, the purpose,
25       as I understood it, of obtaining further expert
page  31
 1       fingerprint evidence was not because of any reason for
 2       concern as to the sufficiency of evidence.  Rather, the
 3       purpose was to meet the anticipated defence case, which
 4       at that stage we believed might proceed upon the basis
 5       of planting.  It is important to recall that there was
 6       at the time no reason to cast any doubt on the
 7       substantive reliability of fingerprint evidence or on
 8       the independence, either collectively or individually,
 9       of the SCRO officers."
10   A.  I don't think the issue is independence of SCRO but
11       there was no reason to question their competency and
12       their honesty.  We'd indicted a murderer, we'd convicted
13       a murderer on the basis of their evidence, unchallenged.
14       We had prosecuted regularly in the High Court on the
15       basis of their unchallenged evidence, fingerprint
16       evidence, and indeed in law courts throughout the land.
17           We cannot look at this with the benefit of hindsight
18       of what happened in the Shirley McKie case.  I'm
19       proceeding on the basis that Y7 was not Shirley McKie's
20       print and I know that's an open question but if we
21       proceed on that basis that Shirley McKie -- that Y7 was
22       not Shirley McKie's print then a quite horrendous error
23       was made which has affected the life substantially of
24       Ms McKie and I can totally understand where she's coming
25       from.  It was against a background -- the decision to
page  32
 1       prosecute her was against a background where we had no
 2       reason, we had never to my knowledge had a successful
 3       challenge of SCRO evidence.
 4   Q.  So --
 5   A.  And, I mean, I have difficulty with this looking at it
 6       with the benefit of hindsight.  Should we have Y7
 7       independently looked at to make sure SCRO have got it
 8       right.  Well, of course we should have with the benefit
 9       of hindsight but we were not working with that benefit
10       in 1998.  If that was the case, we would have got every
11       fingerprint case looked at before we indicted or raised
12       a summary complaint on the basis of it.  We didn't do
13       that.  Even after Shirley McKie's acquittal in May 1999
14       we didn't do that.  We didn't do that until I think
15       2000, was it July 2000 or roughly round about then, that
16       it all blew up.
17           Even after her acquittal we did not -- we used SCRO
18       fingerprint evidence without having it checked.  We
19       also, if I may say so, used evidence from the
20       Strathclyde Police as it then was Forensic Science
21       Laboratory, DNA evidence and other forensic evidence
22       without having it independently checked.
23           So, you know, we have to be very, very careful here
24       that we're not looking at this with the vast benefit of
25       hindsight.
page  33
 1   Q.  So bearing all of what you said in mind there,
 2       Ms Climie, I take it that effectively your position at
 3       the time doesn't differ from what Lord Boyd records here
 4       that there was not --
 5   A.  Well, you see we've got this difficulty where people
 6       don't write clear notes.  Even Advocate Deputes don't
 7       write clear notes, as you saw.  Even Solicitor-Generals
 8       don't write clear notes.  So looking back on it
 9       historically is very, very difficult.  But at the time I
10       interpreted his note as being we'll put her on petition,
11       the further fingerprint evidence was being obtained for
12       the planting and also for the benefit of presentation to
13       the jury, not for any cross-check that SCRO got it
14       right.
15           That was my understanding at the time and it stands
16       to reason.  Was I supposed to, on every case I was
17       indicting based on fingerprint evidence -- and I know
18       you will say to me Shirley McKie was a very, very
19       special fingerprint case and I concede that -- but was I
20       supposed to on every single case say to the Fiscal go
21       and get this fingerprint checked by some bureau in
22       London or Manchester or Birmingham or wherever.  I mean,
23       I just wouldn't have done it.  I'm sorry.  I wish now I
24       had in this case.  I could have avoided Shirley McKie --
25       if it's correct that Y7 wasn't her print -- I could have
page  34
 1       avoided her all this agony and I mean I'll have to live
 2       with that.
 3   THE CHAIRMAN:  I think it would have been exceptional for
 4       you to have asked for it to be checked again.  It seems
 5       very unusual.
 6   A.  My Lord, it would have been.
 7   THE CHAIRMAN:  Unheard of, I would have thought, in those
 8       days.
 9   A.  The counter-argument and acting devil's advocate to
10       myself, somebody could say to me, "Look, here you are
11       indicting a police officer with an unblemished record, a
12       hard-working servant of the community, apparently.  You
13       are indicting this lady on the benefit of SCRO evidence
14       unchecked, which perhaps in this case -- perhaps in this
15       case -- you should have thought of saying, 'Just hold on
16       a minute, are we absolutely sure that SCRO got it right
17       here?'"
18           You know, I've said in my statement, and I know it's
19       not within the remit of the Inquiry, I personally did
20       not agree with the decision to indict Shirley McKie but
21       that wasn't on the basis of the evidence, that was on
22       the basis of other factors.  But once the decision had
23       been made and you can see the Sol Gen and DC and
24       everyone seemed to be wanting to get on with it, get her
25       on petition quickly, once the decision had been made, I
page  35
 1       did -- and I can't deny that, you know, as I was
 2       involved in it and whatever, it went through my mind, "I
 3       hope they've got it right here before they destroy this
 4       woman's life", because obviously it was going to destroy
 5       her life.
 6           It did go through my head.  I'd be lying if I said
 7       it didn't, you know.  It's like the old story like when
 8       I was once involved in a fatal accident
 9       Inquiry following a rail accident and I was told about
10       the risk assessment and how you are always seven steps
11       from disaster on a rail, you know, and so many signals
12       have to be passed at red before you get a collision and
13       all this sort of thing and it's all set to fail-safe and
14       that.  Here were we relying on this evidence from SCRO.
15       But what I thought was it's been checked by SCRO by four
16       people.  Four people signed that report.  I was aware
17       from 1997 of all the furore that rose up when Y7 was
18       identified as being Ms McKie's and she denied it was
19       hers.
20           It was double checked.  This is what I believed.  It
21       had been double checked, it had been triple checked, it
22       had been quadruple checked.  Nobody wanted it to be her
23       print or if it was her print they wanted her to be
24       admitting she had been there.  She wasn't admitting she
25       had been there.  She was denying she had been there.  So
page  36
 1       I thought there's no way that Y7 cannot be her print.
 2       Why would I instruct, even in this very sensitive case,
 3       why would I consider getting it cross-checked by an
 4       English or another Scottish criminal fingerprint bureau
 5       or an independent fingerprint examiner?
 6           But, you know, I do sometimes still have, you
 7       know -- I don't like reading about Shirley McKie stuff
 8       in the paper or hearing about it because I have this
 9       guilt feeling at the back of my mind: could I have
10       prevented this huge mistake, if it was a huge mistake.
11       I mean, I appreciate that the SCRO experts stand by
12       their identification and that's -- but if it was a
13       mistake could I have stopped it being a mistake and, you
14       know, I do -- I don't want anyone thinking this is all
15       routine and I'm not affected by it, because I am.
16   Q.  Thank you for that, Ms Climie.  I think we have your
17       position very clearly on that.
18   THE CHAIRMAN:  Yes.
19   MISS CARMICHAEL:  If we can take down this document please
20       and, again, just proceeding through the Crown Office
21       file as you said to give matters context, if we look at
22       CO3930, please, we see there the Solicitor-General's --
23   A.  Can I just say when I talked about "as discussed", this
24       is the stage I was -- as discussed.  There's obviously
25       been a discussion between the DCA and the -- did this
page  37
 1       note "as discussed" I think accompany his previous one?
 2       The one we just looked at?  Are they dated the same day?
 3       Can we look at the one we just looked at?
 4   THE CHAIRMAN:  They are very close in date.
 5   MISS CARMICHAEL:  I think they are close in date.
 6           It may be we don't need to detain you with this
 7       because we can look at the file I think ourselves.  I am
 8       simply trying to move through the correspondence to get
 9       back to where the contact begins again with yourself.
10           We have seen the instruction here at 3930.  Could we
11       look at to 3929, please.  This I think is when the
12       matters comes back to you from Mr McFadyen, again with
13       the difficult writing, and he says -- I think he says:
14           "Please see Solicitor-General's instructions.  He
15       was concerned ..."
16   A.  "Re".
17   Q.  "... re access to productions and appeal but since that
18       can be dealt with by the trial judge", and, I think, "in
19       practice, the Appeal Court rarely requires productions.
20       There is no reason not to proceed.  Please advise PF
21       accordingly.  I suggest further charges at perv [which I
22       think would be attempting to pervert the course of
23       justice] be explored before ..." and I don't -- you
24       might need to help me with the last word there.
25   A.  "before ..." oh dear ...
page  38
 1   Q.  We may just have to leave that as one of life's
 2       mysteries, Ms Climie.  But in any event this is what
 3       brings the case back to you --
 4   A.  Can I just say, I took that to be the Solicitor-General
 5       instructing indictment because, "There's no reason not
 6       to proceed", okay?  And there's also "I suggest further
 7       charges", which of course would be a matter for the
 8       indicter, for me, as I'd explained to you yesterday.
 9           I know you're going to come on to me later and try
10       to argue that the Solicitor-General wasn't instructing
11       indictment but that's what I took it.
12   Q.  Ms Climie, this might be a convenient point, in some
13       ways, to put your mind, to some extent, at ease on that
14       point because I think perhaps it might be a good point
15       to go back to FI0057.9.
16           We see there at paragraph 23 this was the statement
17       from Lord Boyd that we looked at earlier, Ms Climie,
18       what he says is he gave an instruction that Ms McKie be
19       placed on petition and he refers to the minute of 26th
20       January 1998 which we have just looked at.
21           He says:
22           "From the papers, it appears that this instruction
23       was taken as including the decision to indict.  The
24       papers do not in any event disclose whether the papers
25       were subsequently returned to me for further instruction
page  39
 1       as to whether to indict.  It may reasonably have been
 2       assumed that this was unnecessary upon the basis that I
 3       had had sight of the entire precognition when
 4       instructing that Shirley McKie should be placed upon
 5       petition."
 6           So to that extent I suppose what he regards as a
 7       possibility there is --
 8   A.  I thought that whole correspondence was about, "Are we
 9       going to indict this woman or not", you know.
10   Q.  Because I think --
11   A.  The petition -- putting on petition was, if you like,
12       you know, a consideration.  You know, as I tried to
13       explain yesterday, petition usually comes in before the
14       indicting stage gets to it -- it's not usually when
15       you've got a full precognition which is looked at by an
16       AD, looked at by a Law Officer, you know, normally
17       you've got your petition which a Fiscal does, your Local
18       Fiscal, puts somebody on petition, gives them bail or
19       doesn't give them bail or opposes bail or whatever and
20       then precognosces it and then reports it and then an
21       indictment decision.  This was different.
22           I think everybody would have to agree that the
23       paperwork from January 1998 could have been clearer, but
24       I'm grateful for the former Solicitor-General for
25       clarifying that because the way the Fingerprint
page  40
 1       officer -- sorry, Fingerprint investigator put it to me
 2       was that was an instruction given by Crown Counsel
 3       indict her?  And pointed out to him an Advocate Depute
 4       signed the indictment, an Advocate Depute took it to
 5       trial.  If the Advocate Depute had taken it to trial and
 6       was not satisfied that Crown Counsel had properly
 7       instructed this prosecution, what was he doing taking it
 8       to trial?
 9   Q.  Ms Climie, again, I don't want to detain you on matters
10       that either you can't assist with or that we don't need
11       to go into but the position, while we're on this topic,
12       I think comes to this: we don't have the file that
13       covers the period when Ms McKie was actually indicted --
14   A.  And I'm very disappointed about that as well because it
15       puts me in a very difficult position.
16   THE CHAIRMAN:  We are very conscious of that.  It is
17       regrettable that we don't have it.
18   A.  Because various suggestions were made to your
19       Fingerprint -- to your Fingerprint investigator.  I
20       don't blame him.  He was acting under instructions,
21       which disconcerted me considerably.  I had not looked at
22       this case paperwork for -- well, since 1999 and these
23       things are being put to me with incomplete paperwork.  I
24       mean, I'm going to react badly to that.  So I'm sorry,
25       if I appeared unhelpful to him.  I tried to help as far
page  41
 1       as I could but I can only help so far.
 2   MISS CARMICHAEL:  But the position is -- and I think I will
 3       be corrected if I'm wrong -- that we simply don't know
 4       because of the absence of the file exactly what happened
 5       round about that period and there certainly seems to be
 6       a distinct possibility that there may have been no
 7       further instruction to indict.
 8           If you have any different recollection of that then
 9       I will ask you about that in due course.
10   A.  I have no recollection of seeing anything.  As I'll come
11       on to, no doubt later, I was presented with the
12       paperwork much later in 1998 when I was away from the
13       unit and this for sure I know because I remember it, I'm
14       told by Billy Gallacher in no uncertain terms I was to
15       do the indictment and I wasn't best pleased, I can say
16       that to you.
17           I would have looked at paperwork.  As I said, I
18       certainly have looked at Shirley McKie file.  Whether or
19       not I looked at the Asbury file or not I might concede
20       that -- I have to concede I probably didn't or I might
21       not have.  "Probably" is probably too strong.  If I had
22       any doubt about the efficacy of whether it was
23       appropriate to indict it, I was a very careful indicter
24       and I think you can see that from my work on the Asbury
25       case.  I would not have indicted Shirley McKie if I had
page  42
 1       not been satisfied that there was Crown Counsel's
 2       instructions.  I'm sorry, I simply wouldn't have done
 3       it.
 4   Q.  I don't think anybody is suggesting to you you have done
 5       anything improper.
 6   A.  If I've misinterpreted the January 1998 instructions or
 7       correspondence or exchange of notes involving me, the
 8       DCA, Colin Boyd and Jane Patterson, if I misinterpreted
 9       all that as culminating in Colin Boyd saying, "Yes,
10       indict this person but get this additional fingerprint
11       evidence", then I am sorry, but that's how I interpreted
12       it.
13   Q.  I hope what I've said to you may have put your mind at
14       rest to some extent on that topic, Ms Climie, and we can
15       perhaps at this point go back to the sequence of
16       correspondence we were looking at, at CO3928, please.
17           In a previous piece of the correspondence, the DCA
18       had asked you to get in touch with the Fiscal and I
19       think what we see here is your letter doing just that.
20       Here we see that you have made three particular points,
21       some of which we have talked about already.  You say:
22           "In the meantime, please would you proceed as
23       quickly as possible with the further fingerprint expert
24       Inquiry referred to in the second paragraph on page 37b
25       of the precognition.  A suitable English expert should
page  43
 1       be sought who can give evidence regarding the following
 2       matters ..."
 3           The first we talked about already, the general
 4       question of the transfer and planting of lifted
 5       fingerprints on to another surface; second, the general
 6       basis for concluding that fingerprint identification is
 7       100 per cent reliable, and you have already told us what
 8       you had in your mind certainly regarding that.
 9   A.  I wish I'd spelt it out more clearly.
10   Q.  And then, third, perhaps a particularisation of the
11       first point, whether on examination of the fingerprint
12       Y7 there was anything to suggest it had been lifted from
13       another surface and transferred to the door surround.
14           So you were asking there for the expert to look at
15       whether the particular item had been planted as well as
16       the issue of whether it was practicable in general terms
17       to do such a thing.
18   A.  That's correct.
19   Q.  Then in the next paragraph there you say that you
20       understood from discussions with Mrs Greaves that the
21       English practice for identifying points of similarity is
22       more stringent than the Scottish practice.  This perhaps
23       gives us the hint as to where your understanding that
24       you've set out in your own handwritten notes has come
25       from.  Would that be fair to say?
page  44
 1   A.  Obviously it's come from Mrs Greaves at some point.  I
 2       don't know when or exactly how but, I mean, I wouldn't
 3       have dreamt that up. I suppose this is an example of a
 4       little knowledge being dangerous.  I mean, I'm an infant
 5       insofar as knowledge of fingerprints is concerned.  I've
 6       got this little knowledge and I've brought it in here.
 7       As I said to you before, this little paragraph really,
 8       although it was incorporated into Crown Counsel's
 9       instructions, it came from me and I wish now that I
10       hadn't bothered.
11           Can I just say also that it was suggested to me by
12       the fingerprint investigator that I was instructing a
13       cross-check here of Y7, that this was, you know, I was
14       to get Y7 looked at by some bureau or some fingerprint
15       person outwith the SCRO.  That cannot be the case and
16       the reason it can't be the case is I've specifically
17       said if the English practice for identifying points of
18       similarity is more stringent, then get it done.  If it
19       was a cross-check, I would be asking it to be done
20       whatever the case was.  I hope you can see that.
21   Q.  I think you have already explained to us in the context
22       of talking about some of your handwritten notes what was
23       in your mind when you were issuing such instruction.
24   A.  Yes.
25           Can I just make two points on this letter?
page  45
 1   THE CHAIRMAN:  Yes.
 2   MISS CARMICHAEL:  Yes, if it is helpful, Ms Climie.
 3   A.  You will see, paragraph 2:
 4           "Crown Counsel instruct that you proceed to place
 5       the accused [Mrs ]Cardwell on petition on a charge of
 6       perjury.  There would be no reason to oppose bail if
 7       sought", obviously those are Crown counsel's
 8       instructions.  The bit about bail -- well the Fiscal
 9       would have a discretion there but, obviously, there
10       would be no reason to oppose bail.
11           Can I just say that I'm aware from reading
12       Mr Murphy's account of the trial about his surprise
13       about how the police treated Mrs Cardwell on arrest.
14       Can I just say that I have no knowledge of that.  Once
15       the petition warrant is granted by the Sheriff and
16       passed by the Fiscal to the police, it is a matter for
17       the police discretion how they execute that warrant.
18       It's nothing to do with the Fiscal or certainly nothing
19       to do with Crown Office.
20           But can I just say if it's true that that lady was
21       strip-searched I think that is absolutely appalling
22       unless the police had good reason for believing that she
23       had perhaps an implement on her that she might self-harm
24       or something of that nature.  I just want to make it
25       absolutely clear for the benefit of the members of the
page  46
 1       public that, from my part at Crown Office, I would not
 2       have envisaged this lady having been arrested and
 3       strip-searched.  I would have envisaged her being
 4       arrested in a way befitting her status as a serving
 5       police officer, as an upstanding -- because she's
 6       innocent until proven guilty -- member of the community
 7       and not somebody at risk of flight.  She should have
 8       been treated with absolute respect and if she wasn't, I
 9       think that's -- I'm appalled by that.  But the Crown
10       Office had no part in that.
11   THE CHAIRMAN:  I think that's important.  It is nothing to
12       do with you whatever.
13   A.  The other point I wanted to make about this letter,
14       before we move on, page 2, top of page 2.
15   MISS CARMICHAEL:  I was about, in fact, to ask you about
16       that before we left the letter, Ms Climie.  Perhaps we
17       could just look at that.  What you have written is that
18       Detective Constable Cardwell should be fingerprinted on
19       arrest.  You go on:
20           "The comparison between Cardwell's prints and Y7 by
21       the English expert should be on the basis of the prints
22       taken from Cardwell on arrest.  In addition, you should
23       instruct the Scottish fingerprint experts to carry out a
24       further comparison of Y7 against the prints taken from
25       DC Cardwell on arrest.  The additional fingerprint
page  47
 1       evidence on this basis should be incorporated into the
 2       precognition."
 3   A.  Now, I understand that instruction was not carried out
 4       by the Fiscal at Glasgow until January 1999 and, in
 5       fact, was, if you like, the -- she was arrested in
 6       March 1998, I believe.  She would have been
 7       fingerprinted on arrest.  That work should have been
 8       instructed as soon as, after her arrest.  I understand
 9       that it was done, as I think was expeditiously or
10       something, at the request of Mrs Greaves because when
11       she had retrieved -- she had to retrieve the fingerprint
12       form and SCRO.
13           In a sense, somebody might question why I actually
14       instructed that because it wasn't part of Crown
15       Counsel's instructions and I have read the Gilchrist
16       report on the Internet and I have read DC
17       Mackay's -- sorry, DCC Mackay's extract, which is an
18       appendix to that, in which he makes a completely
19       erroneous statement that it was necessary.  There was a
20       comment about criticism of three sets of enlargements,
21       et cetera, being prepared and DCC Mackay I think
22       commented, well, that's okay, the last one anyway was
23       because you've got to produce the arrest fingerprints
24       and they've got to be compared.  I don't agree with him
25       there.  I don't think it was necessary for that.  I
page  48
 1       think they could have used the original material already
 2       prepared from the Asbury case with the elimination
 3       prints that were taken from Mrs Cardwell at that time.
 4           In a sense, I was being belt and braces here.  I
 5       don't -- although Mr Mackay seems to think that this was
 6       a necessary step.  I don't think it was a necessary step
 7       and I think the reason why I instructed it, it wasn't a
 8       legal necessity, was almost, look, let's have SCRO carry
 9       out another comparison exercise, let's get them to look
10       at the photographs of Y7 against new prints, a new set
11       of inked prints, taken from Mrs Cardwell on the occasion
12       of her petition arrest.
13           Now, a thing I wasn't aware of until I read the
14       Gilchrist report was practice at SCRO about how, once an
15       initial identification is made, then one person is
16       elected to make up the stuff for court and then get some
17       other people to countersign it and if they haven't
18       previously looked at them, they had to look at them in a
19       comparison.
20           I'm just wondering, I'm wondering aloud, I don't
21       know the answer to this but I'm wondering aloud whether
22       or not the evidence prepared for the court -- and please
23       believe me, I'm not getting at the fingerprint experts
24       in this.  I've said in my statement, and still believe
25       this 100 per cent, that Ms McBride and her colleagues
page  49
 1       acted in good faith.  Others might not agree but I
 2       believe they did.  But the systems may have let them
 3       down here in that it may be tolerated, the preparation
 4       for court, "Well, we've already looked at Y7 against her
 5       previous prints, we'll just prepare another report".
 6       I'm not suggesting that was done, I'm just saying it's
 7       maybe a matter they need to look into as a slack
 8       practice.  I --
 9   MISS CARMICHAEL:  If I can stop you there, you may be
10       assured the Inquiry is very interested in the procedures
11       at SCRO at the time.  That is a matter that will be
12       enquired into.
13   A.  Can I just put this to bed by saying that when I wrote
14       that, I anticipated -- pause in my head, maybe I was
15       naive -- but I anticipated that a fresh comparison would
16       be done, a fresh comparison against her inked prints on
17       arrest against photographs of Y7 and that, you know, it
18       may be that, "Oh, we made an error here".  That error
19       would have been discovered.  It certainly wouldn't have
20       stopped her appearing on petition but it would have
21       prevented her being indicted and put on trial.
22           So I'd be interested myself to know when the
23       evidence was prepared for court for Mrs Cardwell's
24       perjury trial from her inked prints on arrest against
25       Y7, whether a full comparison exercise -- did four
page  50
 1       Fingerprint Officers look again and do a full proper
 2       comparison?  A full 16-point identification exercise?
 3   Q.  You may be assured Ms Climie that is an area in which
 4       the Inquiry is interested and has already made
 5       some enquiries.
 6   A.  In a sense, because this was not a legal requirement,
 7       despite what Mr Mackay says, I don't think it was a
 8       legal requirement, in a sense, this was a bit of an
 9       element of cross-check in coming in.  I know not going
10       outwith SCRO but another look at Y7 against a new set of
11       inked prints taken from Mrs Cardwell on her arrest.
12   Q.  Thank you for that, Ms Climie.
13           Now, I think the next item is CO3927 and this is a
14       letter coming to you, I think, from Mrs Greaves in
15       Glasgow, just updating you as to the fact that
16       Ms Cardwell had by that time appeared on petition on
17       6th March 1998 and I think, as we see in your
18       handwriting towards the bottom noted --
19   A.  I take it this has come from the Crown Office side of
20       the correspondence?
21   Q.  All of this at the moment comes from the Crown Office
22       buff folder --
23   A.  There are some letters I know that come from the Glasgow
24       end of the correspondence addressed to me that I don't
25       have any recollection of receiving but obviously I
page  51
 1       received this.  This is from the Crown Office end and
 2       you will see I have carefully noted "noted".  If I
 3       received correspondence that I wasn't required to reply
 4       to it's my practice, still remains my practice, I've
 5       indicated on it that I've seen it and I've indicated
 6       that I've noted that on, I think, its on 18th March,
 7       possibly.
 8   Q.  Thank you for that.  That takes us to 18th March.
 9           We good move on to 19th March in the documents
10       CO3926.
11           This appears to be a memo from yourself to the
12       Deputy Crown Agent and I think the only point that I
13       would want to draw to the attention of the Inquiry
14       particularly is the second paragraph where you say that
15       you're awaiting the re-reporting of the case in the
16       light of the further work instructed in January and you
17       summarise there:
18           "As you will recall, an independent expert was to be
19       involved on the question of transfer/planning of the
20       disputed fingerprint and on the general basis for
21       concluding that fingerprint identification is" --
22   A.  I haven't put in the third point which flowed from the
23       second point, if you like, about the comparison to the
24       English standard.  I've not put that in.
25   Q.  I think the next and I think the last relevant item we
page  52
 1       have from the David Asbury High Court Unit file is
 2       CO3924.  This is a letter from yourself to Mrs Greaves
 3       in Glasgow?
 4   A.  That's obviously from the Crown Office file, not from
 5       the Glasgow file because it's got "Copy" on it, meaning
 6       it's a copy from a Crown Office file.
 7   Q.  You are asking there for an estimate of when you are
 8       going to get the finalised precognition.
 9           I think you have said in your statement at this
10       point the information in the David Asbury High Court
11       Unit file peters out?
12   A.  My problem is I was presented with a big bundle of
13       papers and it wasn't entirely clear to me what had come
14       from the Crown Office papers and what had come from the
15       Glasgow file.  But what I understand the situation to be
16       is that we've got a full -- well, more or less full --
17       Asbury High Court Unit indicting file, which contained
18       loose papers which might at one point have originated
19       from the McKie indicting file.  But it wasn't entirely
20       clear to me what came from where, what had been loose,
21       what had -- it was also mixed in with stuff that was
22       obviously from the Glasgow file.
23           Can I say that -- I can't swear to this, but I would
24       think it likely that there was no McKie file until
25       probably the F32 form came in which, I think from the
page  53
 1       Glasgow end of the correspondence, was sent from Glasgow
 2       on 15th April.
 3   Q.  I think I can show you that, in fact, if we look at
 4       CO3921.4 and 5.  We have a file there for your attention
 5       from Mrs Greaves and if we look halfway down the page we
 6       see that "F32 is enclosed as previously requested" and I
 7       think on the right-hand side of the screen what we are
 8       looking at is, in fact, the form F32 from Mrs Greaves?
 9   A.  That's correct, yes.  The purpose of this was to give
10       the appearance, first appearance, date 6th March.  That
11       would start the 12-month time bar running as we talked
12       about yesterday.  She was released on bail on 6th March.
13       That was on her first appearance.  Sometimes produce
14       seven days and bail at full committal but she's got it
15       at first appearance and the 12-month time bar expires on
16       6th March 1999.
17           Now, that form is an administrative form almost and
18       the allocation of cases to sittings was done on the
19       basis of this form -- provisionally that is.  Obviously,
20       things could change.  That was a task of the head of the
21       High Court Unit assisted by the High Court Unit EO at
22       the time, who I think was a gentleman by the name of
23       Charlie O'Neill, if I remember correctly.
24           Charlie was a great guy for, you know, moving,
25       keeping records and, you know, allocating things to
page  54
 1       sittings, et cetera, et cetera.
 2           So this letter would probably have been passed to
 3       Charlie O'Neill to allocate to a sitting in conjunction
 4       with Mr Gallacher and, I think, although again I don't
 5       know -- when I say I don't know I'm not certain -- I
 6       think would have triggered the opening of the High Court
 7       Unit file for Shirley McKie.
 8           I suppose, technically, a High Court Unit file
 9       should be opened for Shirley McKie at the point when
10       that January note-passing had completed, but I have a
11       feeling that probably that material found its home in
12       the Asbury file.
13   THE CHAIRMAN:  So it would really only be 15th March,
14       possibly, that the file was opened for this
15       particular --
16   A.  No, 15th April, my Lord.
17   THE CHAIRMAN:  I am sorry, April.
18   A.  15th April.  You see, normally how things worked was the
19       person appeared on petition, they were liberated on bail
20       or kept in custody or whatever and the Fiscal would then
21       send in the F32 -- I'm talking about this time -- very,
22       very quickly and that was to allow file-opening and
23       sitting allocation.
24           In a sense, Denise I think had perhaps -- I hope I'm
25       not being unfair to her -- perhaps had maybe overlooked
page  55
 1       the F32 but I think there had been some correspondence
 2       from our end saying send in an F32 because it wasn't
 3       following the normal way.  She had already reported a
 4       way of precognition anyway.  So she's put in the F32.
 5       That's been received presumably on or after just after
 6       15th April and, to the best of my current recollection
 7       of how things worked administratively, I think that
 8       would have led to a High Court Unit indicting file being
 9       opened.
10           What it might not have led to -- and I have to say
11       this -- I think might have led to problems later.  It
12       may be that the material following where it talked about
13       the January material (ie, the exchange of
14       correspondence, my letter to Denise), that may not have
15       been transferred into the McKie file.  That may have
16       stayed in the Asbury file.
17           Now, if it had been me, I would have kept everything
18       together or maybe transferred the material in but, you
19       know, things happen and it may be that the material in
20       the Asbury file was not later looked at when decisions
21       were being made on the McKie case.  I don't know if
22       that ... I'm just saying it opened up room for error
23       there.  Whether or not there was error, I don't know,
24       but I'm just saying it's a possibility that the note
25       exchange, the material about the decisions in January,
page  56
 1       did not find their way themselves into the McKie file.
 2           But, again, they were probably all kept -- the McKie
 3       file was probably kept with the Asbury file.  The Asbury
 4       murder precognition would have been ginormous.  You
 5       know, we're talking five/six volumes so it may have been
 6       shunted out of the picture.  But I would have hoped that
 7       the Asbury file would have been kept with the McKie file
 8       as a bundle.
 9   MISS CARMICHAEL:  Just on that point, is that something you
10       came back to look -- and I will ask you a little more
11       about this later -- but you came back to look at this
12       matter at the end of 1998 as well?  Do you have any
13       recollection as to whether the McKie file --
14   A.  No, I don't, I don't.
15   Q.  -- was kept with the Asbury file.
16   A.  I honestly don't know whether, when I was passed the
17       material ... I think said in my statement I was
18       passed -- in fact, I'm sure I said in my statement and
19       this may be incorrect ...
20           Can I just check my statement on that?
21   Q.  Of course.  I think you may be thinking about
22       paragraph 10 of your statement, possibly, where you
23       speak about working over the festive season.
24   A.  No, it's not that paragraph, actually.  Sorry, yes, you
25       are correct it is that paragraph.
page  57
 1           "I do not recall much about the indicting of the
 2       McKie case other than I had to do it at home outwith
 3       working hours due to pressure in my new post."
 4           What I do know was when I indicted Ms McKie's case I
 5       was in my new job.  So it was after 2nd October 1998.
 6           Can I say, I still have my personal diaries from
 7       1998 and I checked that and I started in the Appeals
 8       Unit on 2nd October 1998.  I don't have my work diary
 9       but I have my personal diary.  I said:
10           "I don't recall much about indicting the McKie case
11       other than I had to do it at home outwith working hours.
12       I'd have certainly have looked at the McKie and probably
13       also the Asbury file."
14           Implicit in that is that I had the Asbury.  I don't
15       honestly know if I did have the Asbury file.  I would
16       hope -- I would hope -- that I would have had the Asbury
17       file or at least I would have asked for it if I could
18       not find the January 1998 material in the McKie file.
19       What I'm conceding is there's a possibility that the
20       January 1998 material was not transferred as it should
21       have been into the McKie file.
22   Q.  I understand that.
23           Do you have a clear recollection of there being a
24       separate McKie file?
25   A.  I do.  There is no way there would not have been because
page  58
 1       the Advocate Depute gets the indicting file.
 2           Now, can I just say, having considered and having
 3       reared on the Internet -- I'm being terribly nosey --
 4       but having read on the Internet the evidence of Sheriff
 5       Murphy, I was very surprised by his comment that he
 6       didn't read the High Court Unit indicting file because
 7       Billy Gallacher, my boss, told me that the indicting
 8       file was always read by the Trial Advocate Depute and it
 9       was in the indicting file that we could draw attention
10       to the Trial Advocate Depute.
11           There wasn't the -- we didn't know when we did the
12       work on the case who the Trial Advocate Depute was going
13       to be.  The indicting file was the mode by which the
14       indicter could put down the indicter's thoughts on the
15       file, sometimes you thought aloud in a shopping list
16       letter when you -- there was a wee section in the
17       shopping list letter called "Charges" and well, I know I
18       do, I thought aloud there and I explained why I had
19       chosen certain charges and why I put in certain bits or
20       not put in other bits or put in this charge, this charge
21       for evidential reasons only or why I'd indicted it this
22       way or that way.
23           Part of the reason for that was that was you
24       communicating with the Trial Advocate Depute and I had
25       always understood that a Trial Advocate Depute read the
page  59
 1       High Court Unit indicting file and I was surprised to
 2       read from Sheriff Murphy -- of course, it may only have
 3       been his own personal practice -- that he didn't seem to
 4       bother doing that.
 5   MISS CARMICHAEL:  That's very helpful that you do have a
 6       clear recollection of there being a separate file,
 7       Ms Climie.
 8           I would like to move on now to a slightly different
 9       series of correspondence.  It may be that this is a
10       convenient moment to take a break?
11   THE CHAIRMAN:  We will say 11.50.
12           We will take a short break now for the stenographer
13       until 11.50.
14   (11.30 am)
15                         (A short break)
16   (11.50 am)
17   MISS CARMICHAEL:  Ms Climie, the next piece of
18       correspondence I would like to look at is a letter
19       CO3463.
20           I wonder if we could have the whole of the document
21       up please.
22           Ms Climie, this takes us on a stage in the
23       correspondence and we have now Mrs Greaves on
24       15th May 1998 getting back to you with Mr Kent's report.
25           If we look at the second paragraph on the first of
page  60
 1       these pages she writes:
 2           "I also return the precognition and copy productions
 3       for your information.  The only part of Mr Kent's report
 4       which causes any concern is page 2, paragraph 9."
 5           Now, if we can switch at this stage to CO3876,
 6       please, at page 3.
 7           I think you may recognise this as the report from
 8       Mr Kent that Mrs Greaves was sending you.  If we look at
 9       paragraph 9 here, we see that what it is Mr Kent saying:
10           "From the above it would seem likely that the
11       fingerprint was deposited after any application of
12       aluminium powder."
13           So if we go back, bearing that in mind, if we can,
14       to Mrs Greaves' letter at 3463, what she is concerned
15       about is his view about the timing of the deposition of
16       Y7.  She writes:
17           "The concerns I have relate to the fact that print
18       Y7, Shirley Cardwell's print, was not the only print
19       discovered after the use of black powder.  Prints Z7 and
20       A8 were also found (see production 168, page 3) that
21       these contained insufficient ridge characteristics to
22       allow any comparison."
23           If we look at the fourth paragraph that starts,
24       "Another four impressions ...", Mrs Greaves records:
25           "Another four impressions found on 14th January are
page  61
 1       included in that section and are possibly those referred
 2       to by Michael Moffat.  These are B8, C8, D8 and E8.
 3       Impression B8 has insufficient ridge characteristics for
 4       comparison ..." and she makes a reference to a
 5       production.
 6           "Impression C8 remains outstanding", and, again,
 7       there's a reference for a production but she writes:
 8           "Impressions D8 and E8 have been identified as those
 9       of Marion Ross", who we know was the lady who was
10       murdered and, again, there is reference to the
11       production.
12           If we go then to the last paragraph there that
13       starts "My concerns ...", she writes:
14           "My concerns about Mr Kent's report are, therefore,
15       that he seems to be saying that Shirley Cardwell must
16       have placed her fingerprint after the aluminium powder
17       dusting.  This is what we considered had occurred.
18       Dr Kent's reasons for reaching the conclusion are,
19       however, that the aluminium powder would have shown up
20       any print later disclosed by the black powder.  It may
21       be suggested by the defence that prints D8 and E8,
22       identified as those of Marion Ross, should also be
23       subject to scrutiny."
24           Now, is this a letter that you recall receiving,
25       Ms Climie?
page  62
 1   A.  I've seen it in the context of this Inquiry but I've no
 2       recollection of considering it at Crown Office at all.
 3       I'm sorry.  I've simply no recollection of -- I must
 4       have looked at the Kent report at some point but I've no
 5       recollection of this material, this point about some
 6       question mark over Mr Kent's views about when Y7 was
 7       deposited.
 8   Q.  Reading the letter now, the focus of it seems to be a
 9       particular concern about Mr Kent's view about the timing
10       of the --
11   A.  It certainly does.  It's, if you like, to do with his
12       specialist area which was, as I understand it, scenes of
13       crimes in this matter as opposed to fingerprint
14       expertise.  When I say -- I mean, it's to do with his --
15       it's calling upon his expertise in his area as a crime
16       scene examiner and fingerprints role in that.
17           Does that answer your question?
18   Q.  I think it does because what you are telling me is
19       something you don't remember seeing at the time --
20   A.  I have absolutely no recollection of these matters being
21       drawn to the attention of Crown Office in correspondence
22       but I accept that I must have seen the Kent report when
23       indicting the case and that I probably, if I had -- I
24       would have been aware, I would hope I would have been
25       aware of this correspondence but I honestly have no
page  63
 1       recollection of it.
 2   Q.  Do you recall at all seeing or considering the Terry
 3       Kent report at about this time, May 1998?
 4   A.  I've none -- as I've said in my statement, my
 5       recollection, my next recollection -- well, in fact, it
 6       would be fair to say I don't really have much
 7       recollection of January 1998 up to April 1998 but you've
 8       been able to show me the correspondence and I can
 9       reconstruct a recollection.  But I have no recollection
10       at all of intermitting with the case at all until, as I
11       say -- I'm trying to get a time-frame.  All I can say is
12       it was that part of the year when, you know, things are
13       getting dark outside and Christmas is approaching and I
14       know -- well, I've a recollection of working on the
15       McKie case over a Christmas period and I said in my
16       statement given the reasons why I think that was
17       Christmas 1998/New Year 1999.
18   THE CHAIRMAN:  This would have been about the time that you
19       were expecting to leave the High Court Unit.
20   A.  If I could explain how the High Court Unit procedures
21       worked, why I liked the High Court Unit -- well, one of
22       the reasons I liked it was you dealt with the one case,
23       you indicted it, you moved on to the next case.  It was
24       like that.  You didn't carry cases, right.  So you
25       didn't have the all too human risk of developing
page  64
 1       skeletons which we all, I'm sure, have experience of,
 2       maybe not everybody but I certainly do.
 3           The carrying of cases, the individual ownership of
 4       cases, as I say, things have totally changed now with
 5       individual indicters working with individual Advocate
 6       Deputes, exactly the way I thought in 1998 things should
 7       work.  Unfortunately, I don't have the clout or the
 8       ability to, you know, bring about change but change has
 9       been brought about, fortunately.
10           But then an indicter's role was a very point in time
11       role.  You indicted a case; you told the Fiscal; you
12       revised and prepared a draft indictment; served a draft
13       indictment; gave shopping list letter to the Fiscal; you
14       expect the Fiscal to do what you told them; you didn't
15       come back and check it; it was for them to deal with all
16       the points; if they didn't deal with all the points, I
17       suppose they might be answerable eventually if things
18       went wrong, but you didn't supervise or check them on
19       it.
20           So the individual ownership of cases was not ... it
21       was like a conveyor belt where you dealt with one
22       specific point in time in a case: precognoscer; report
23       to Crown Office; Crown Counsel instructs indictment; you
24       indict it; you told the Fiscal what to do; the Fiscal
25       then had the time between indictment and trial to deal
page  65
 1       with all these matters, and that was it.
 2           Now, this case of course we know was following a
 3       different pattern.  I put in my statement why I think --
 4       and I have to say it's highly speculative, I cannot
 5       remember, I mean, I honestly cannot after 12 years or
 6       almost 12 years tell you, without the benefit of the
 7       paperwork, what has happened here.
 8           I suspect that after the F32 come in that the
 9       file -- or perhaps that in conjunction with me being
10       about to leave the High Court Unit which, to the best of
11       my recollection was due to be in the June of that year,
12       it wouldn't have been known at that stage, the time
13       we're talking about, May time, April/May, when things
14       were going to be sorted out, you know, so that we could
15       actually indict this case, get it back from the Fiscal
16       because, bearing in mind the precognition's back with
17       the Fiscal, and I suspect that probably what has
18       happened is that I have relinquished the papers back to,
19       if you like, Mr Gallacher or perhaps somebody else at
20       his request -- I don't know -- to, if you like, be ready
21       to -- or to look after the case until such time as it
22       was ready for indicting or even to indict it.
23           I simply have no recollection of dealing with the
24       Kent correspondence which I'm referring to as the
25       letters.  I know there's a series of letters.  I've no
page  66
 1       recollection of them.
 2   Q.  It's perhaps very helpful for you to say that you don't
 3       remember.
 4           I think there are one or two points that I will have
 5       to put to you for completeness and fairness, Ms Climie,
 6       but if the answer is simply that you don't remember then
 7       please do just say so.
 8           Mr Greaves gave evidence to the Inquiry saying that
 9       although the letter we just looked at, the 15th May
10       letter, didn't mention it she recalls speaking to you on
11       the phone about getting a further view about the Y7
12       print.
13           Is that something you remember at all?
14   A.  I have no recollection of discussing -- well, I must
15       have discussed fingerprints with Mrs Greaves because I
16       know from -- well, we know, we've looked at stuff she
17       told us.
18   Q.  Looking at the period now that we're into, the May 1998
19       and afterwards period.
20   A.  On that specific point, no, I have no recollection of
21       a discussion.
22           Can I just say that as I indicated or tried to
23       indicate in my statement that if Y7 comparison -- and
24       bear in mind that in Denise's precognition, if you
25       remember we looked at that, there were two paragraphs
page  67
 1       and she was actually requesting an examination of Y7
 2       outwith which was not, of course, taken up and
 3       incorporated into Crown Counsel's instructions so I'm
 4       wondering if that's in her mind.  But I have no
 5       recollection at this stage, the stage we're talking
 6       about, of discussing with Mrs Greaves getting Y7 looked
 7       at and, of course, the only context in which Y7 was to
 8       be looked at was if an English expert -- if we'd
 9       established that the English ...
10   THE CHAIRMAN:  Standard was different.
11   A.  If the English -- what we talked about the two points,
12       we'd already ruled out -- well, not explicitly, maybe
13       Denise hadn't picked it up -- we'd already ruled out
14       getting Y7 cross-checked.  That had been ruled out.
15       That was in her precognition, in her suggestion in her
16       precognition, but it wasn't incorporated and taken up
17       into Crown Counsel's instructions.
18           I would have thought that if that was uppermost in
19       Denise's mind that would have been raised in this
20       letter, the letter of 15th May, or in subsequent
21       correspondence and I understand it wasn't.  So I don't
22       know what the context of any telephone discussion with
23       me would have been.
24   MISS CARMICHAEL:  If I can just stop you there, I am
25       slightly curious about the fact you say something had
page  68
 1       been ruled out.  I understood your evidence referring
 2       back to your letter of 30th January to be that you were
 3       predicating the further examination of Y7 on the
 4       evidence about the --
 5   A.  When I say "ruled out", what I meant was, if you
 6       remember the two paragraphs in her precognition we
 7       brought up first thing this morning?
 8   Q.  Indeed.
 9   A.  The first paragraph said Crown Counsel may wish to
10       consider getting Y7 looked at and then the second
11       paragraph, the plausibility angle, which the Deputy
12       Crown Agent had then picked up on so the expert was do
13       transfer/planting plus the general basis for concluding
14       that fingerprint evidence was reliable.  Then, of
15       course, I had added in the extra little bit and
16       I explained about why that was.
17           It may be that Denise had not appreciated that Crown
18       Counsel had not taken on board her suggestion in the
19       precognition in that first paragraph about getting Y7
20       looked at.  I don't know.  Maybe that's what she's
21       thinking about.  But I have no recollection of Denise --
22       discussing with Denise Greaves getting Y7 looked at,
23       except in the context of my instructions.  I don't
24       remember discussing them with her.
25   THE CHAIRMAN:  Well --
page  69
 1   MISS CARMICHAEL:  Again, for completeness -- sorry, sir?
 2   THE CHAIRMAN:  No.
 3   MISS CARMICHAEL:  For completeness and fairness and to give
 4       you a full opportunity to comment, Ms Climie, I wonder
 5       if we could look at CO3460.
 6           What we have here is a letter dated 9th June 1998 to
 7       Mrs Greaves from Levy & McRae but we have a handwritten
 8       note from Mrs Greaves which bears to be written
 9       17th August saying she:
10           "... spoke to G Climie.  She will reread report and
11       advise of any further matters requiring clarification
12       prior to return of piece of wood and any other
13       productions."
14           Mrs Greaves has told us in her statement, the
15       correspondence, this seems to be taking place in the
16       context of some pressure from Levy & McRae to get
17       the productions back to Glasgow from Mr Kent to have the
18       defence experts look at them.
19           Do you have any recollection of a call with
20       Mrs Greaves at that time, in the August of 1998?
21   A.  Well, obviously, I'm not -- I mean, if Denise has noted
22       that she's had a telephone conversation with me on
23       17th August I can't possibly deny that.  I've no
24       recollection of it.  In it's context, it would appear
25       that I have read -- I'm taking it's reference to the
page  70
 1       Terry Kent report.  It would appear I've read it already
 2       and I'm rereading it and going to advise on any further
 3       matters, but I have no recollection of that at all.
 4   Q.  I wonder if we could look next at CO3456.  Again, this
 5       is a letter, 10th September 1998, addressed to you by
 6       Mrs Greaves apparently on the same theme about
 7       Levy & McRae asking for productions.
 8   A.  Can I say that I was about to leave the High Court Unit
 9       on 2nd October 1998 and I have that from my diary.  Now,
10       I always took two week's holiday in September.  I think
11       I said it was maybe the two weeks leading up to
12       2nd October but I think it might have been actually
13       earlier in September.  The reason I remember is I always
14       took it to coincide with the Edinburgh Festival because
15       I couldn't be bothered with the biz in Edinburgh at the
16       Edinburgh Festival, getting up from Waverly Station in
17       the morning and getting back in the evening.  So I think
18       it likely that I would be on my leave round about the
19       time this letter was arrived, my leave which immediately
20       preceded me leaving the unit.  But I've no recollection
21       of receiving this letter.
22           I went to Crown Office in June 1995 and every year
23       up to and including 1998 and 1999 I took two weeks leave
24       in September to coincide with the Edinburgh Festival
25       which I think maybe starts first week in September or
page  71
 1       something like that.
 2   Q.  I wouldn't care to try and give you correct dates as at
 3       1998, Ms Climie.  I think it's possibly now more
 4       August-based than it was but, again, others may know
 5       better than I.  I think it was perhaps August running
 6       into September round about that time?
 7   THE CHAIRMAN:  Well, I'm sure we can find out if we need to.
 8   MISS CARMICHAEL:  I am sure we can check, if we need to.
 9   A.  I suspect that -- I've always traditionally taken my big
10       two-week leave in September and still do and I rather
11       anticipate this letter was sent when I was on leave but,
12       as I say, I don't have the Crown Office end of this
13       correspondence so I can't say.
14           I know -- I mean, obviously, it doesn't look good
15       when we don't know what's been happening to the Kent
16       report in Crown Office but I honestly have no
17       recollection of this.  I'm not saying the Kent report
18       wasn't being looked at or dealt with at Crown Office but
19       I just have no recollection of being in involved in it,
20       although obviously I've read it because we know that
21       from the annotations and I would have looked at it in
22       the context of indicting the McKie case later -- well,
23       towards the end of the year.
24   Q.  What Mrs Greaves seems to be raising here is whether
25       Crown Counsel are satisfied with the terms of the
page  72
 1       report.
 2   A.  That would seem so, yes.  I've said in my statement, and
 3       I stick to it, I have absolutely no doubt Crown Counsel
 4       would have looked at the Terry Kent report.
 5           I've no recollection of putting it before Crown
 6       Counsel and I've drawn attention, I think quite fairly
 7       and candidly, in my statement, to the potential whereby
 8       it's the fact that Terry Kent wasn't, if you like,
 9       covering the fingerprint matters that we'd talked about
10       earlier.  I've been quite candid in how I think that
11       is -- it's potentially possible that was overlooked.  I
12       mean, I can't be fairer than that.  I'm sorry.
13   Q.  That is very helpful, Ms Climie.
14           I think to some extent there's a slight modification
15       from your statement as you pointed out because I think
16       you said you thought you had been away on holiday
17       immediately before you changed jobs.
18   A.  I thought when I was doing the statement ... do you
19       know, I think my personal diary might have answered this
20       but I don't have it with me.
21   Q.  Let's not --
22   A.  I think I said in my statement that -- I always took two
23       weeks in September to coincide with the Edinburgh
24       Festival and I think I said in my statement it was two
25       weeks or to coincide with part of the Edinburgh Festival
page  73
 1       because I think it's three weeks, but I think I said in
 2       my statement it was the two weeks leading up to
 3       2nd October.
 4   Q.  Yes.
 5   A.  Which was definitely a Monday.  I don't know if anybody
 6       has a calendar for 1998 but --
 7   Q.  I think it is perhaps 5th October rather than 2nd but I
 8       am not going to trouble you on that particular point.
 9   A.  Oh, right.  I think that I -- I think I said that I took
10       my two weeks up to my move.  In other words, I came back
11       to my new job but I think that must be wrong when I
12       think about it and also it would be unusual to go on
13       your holidays and then come back to -- well, it might
14       not be unusual but there might have been ends to tie off
15       and things to -- knowing the way Crown Office works, it
16       would probably be the case I would have come back and
17       maybe finished two weeks or something or a week or
18       something at the High Court Unit and then started the
19       new job.
20   Q.  That might help us, in fact, with the next document I
21       was going to ask you about which I thought might not be
22       in accordance with your statement but I think you've
23       perhaps clarified the situation.  CO3788.
24           Mrs Greaves has told us that the lower part of what
25       we see there is a note that she took on 29th September
page  74
 1       saying that she'd spoken to you and you would write to
 2       her with instructions regarding Terry Kent's report.
 3   A.  Well, that confirms I was at work on 29th September
 4       which is correct.
 5           Again, I've no recollection of this.  I know I feel
 6       I should have a recollection of it but I honestly simply
 7       don't have any recollection of it.
 8           The word "instructions", suggests that Crown Counsel
 9       was involved and, I mean, I have to concede it's
10       possible -- it's possible -- that I was the one that
11       eventually got instructions from Crown Counsel on it,
12       albeit late.  But I have no recollection of seeking
13       Crown Counsel's instructions.  But the file would have a
14       full contemporaneous record of that.
15           I have been quite candid, I feel -- I've said this
16       before -- I've been quite candid in my statement by
17       saying -- and I'm not seeking to elide responsibility on
18       my part if there was a failure to completely or a
19       failure by Crown Counsel to take cognisance of the fact
20       that the Kent report really didn't cover the comparison
21       angles in my earlier correspondence, but of the
22       comparison angles ...
23           I looked at and I can't remember, was it shown to me
24       by the fingerprint investigator?  I don't know.  I'm
25       aware of the terms of the instructions that Denise
page  75
 1       Greaves sent to Mr Kent and if I just may offer the
 2       comment, it's not a criticism, but it doesn't at all
 3       address what she was told to address, which was,
 4       "Mr Kent, can you tell us ..."
 5           You see how I looked on it, I would have phoned up
 6       Mr Kent.  I would have had a telephone conference with
 7       him.  I maybe even would have got him up to speak to him
 8       before formally instructing him to find out: what are
 9       his areas of expertise; could he actually deal with
10       this; did he know what the Scottish standard was; did he
11       know what the English standard was; could he tell us if
12       the English standard was more stringent than the
13       Scottish standard; and if he could do all that, well,
14       then he could do the comparison.  It seems like he was
15       simply given instructions in very general terms.
16           I also may say just another comment on this: I know
17       that this may or may not be relevant, I'll put it in for
18       what it's worth.  What I'd envisaged was that Mr Kent
19       would be doing this comparison work from the arrest
20       fingerprint form.  Now, we've already covered before the
21       coffee break that the arrest fingerprint form wasn't
22       pulled down to the Fiscals' Office until January 1999
23       and I don't think the groundwork was laid by the Glasgow
24       Fiscals' Office in terms of the instructions, the
25       instructions of course which of course I was -- I had
page  76
 1       taken forward the more general look at the scientific
 2       basis of fingerprint evidence.  I had taken it forward
 3       with that little extra, what I considered at the time
 4       was a very clever thing but I think may have just been
 5       an added complication.
 6           Crown Counsel were quite -- it's quite clear from
 7       the January 1998 correspondence that Crown Counsel were
 8       not going to enter into the business of having Y7
 9       cross-checked, checked for accuracy by some fingerprint
10       expert unconnected.  That's clear from that
11       correspondence.  I think it's clear from that
12       correspondence.
13           This was an added little extension of the
14       instruction to get an expert who could, for
15       presentational purposes, to help convince the jury,
16       explain about the science behind fingerprinting.  I
17       don't know if that is clear or not.
18   THE CHAIRMAN:  I thought the points --
19   A.  Can I just say, as I think Lord Boyd said somewhere
20       along the line -- well, my position is and I'll hold up
21       my hands to this, I believed Y7 was Shirley McKie's
22       print.  I believed it had been checked and checked again
23       and checked again and that there was absolutely no
24       question.  I read with interest Mr Moynihan's opening
25       statement given I think earlier in June and I noticed --
page  77
 1       I haven't seen Mr Kent's statement.  I don't think it's
 2       on the website yet.  Maybe it is but I haven't seen it.
 3       Mr Moynihan has indicated in his, if you like, summary
 4       or whatever of what Mr Kent said, when Mr Kent attended
 5       at Glasgow High Court he thought he was there to talk
 6       about the defence of alleged transfer.  He said, "It
 7       never even entered my head that the SCRO people would
 8       have got it wrong in this case", and that was my
 9       position and can I just develop this, just one wee point
10       I want to raise.
11           This again is referred to in Mr Moynihan's opening
12       statement now.  Unfortunately he doesn't give a
13       reference to it.  I'm reading this from the, not from
14       the transcript but from the printed version.  He tells
15       us -- and I don't know whether this is documentation
16       that the Inquiry has -- he tells us that there was a
17       letter from Mr McKie, Mr Iain McKie, to the
18       Lord Advocate, dated 9th June 1999.  Now that was very
19       shortly after Shirley McKie's acquittal.  Mr McKie was
20       raising various issues arising from the acquittal of his
21       daughter.
22           There was a reply dated 12th July 1999 from the
23       Lord Advocate, actually, I think it was the
24       Lord Advocate's Secretariat not the Lord Advocate
25       himself, and Mr Moynihan in his opening statement quotes
page  78
 1       from that letter and I quote:
 2           "The case has been the subject of investigation by
 3       the Lord Advocate.  No action is to be taken to prevent
 4       the citation as prosecution witnesses in appropriate
 5       cases of the SCRO experts who gave evidence in the case
 6       and there is no plan to instruct review of the findings
 7       of these officers in other cases."
 8           Now, this followed the acquittal, after contrary
 9       evidence was given at the trial of American experts.
10       The letter says the case has been the subject of
11       investigation.  What investigation?  There had been no
12       cross-check done at that stage.  That only happened much
13       later, well into 2000, and I think impelled by
14       television programmes.
15           So, if you like, the belief in Y7 being correctly
16       identify as Shirley McKie's print extended beyond her
17       acquittal after the hearing of expert evidence from
18       abroad.
19           So, you know, please don't criticise me and others
20       working in the Prosecution Service for accepting that
21       evidence and perhaps overlooking it, the question, "Are
22       we sure we've got this right from SCRO", in the run-up
23       to the Shirley McKie case when our Lord Advocate
24       himself -- and I assume that he has authorised this
25       letter to be written in these terms -- is taking that
page  79
 1       quite complacent attitude after the acquittal.
 2   MISS CARMICHAEL:  Thank you for making that point,
 3       Ms Climie.
 4           There are two further items of correspondence that I
 5       would like to show to you for completeness and comment
 6       before I move on.  The next is CO3453.
 7           This is a letter from Mrs Greaves addressed for your
 8       attention on 19th October 1998.  Again, she is asking
 9       for advice as to whether Crown Counsel were satisfied
10       with the terms of Terry Kent's report and saying, if so,
11       she would arrange for return of productions.
12   A.  It appears she didn't get a response so, again, I have
13       no recollection and I can't recall what was going on.
14   Q.  You would infer, I think reasonably from this, that she
15       had not had an answer?
16   A.  I think you can infer from that that she's not had an
17       answer, yes.
18   Q.  But you don't have any particular recollection yourself
19       of this letter?
20   A.  But then again, I would have been in my new job by then.
21   THE CHAIRMAN:  And you don't know who would have inherited
22       this?
23   A.  Well, I rather suspect, my Lord, that it would have
24       been -- I mean, I don't want to blame people when the
25       paperwork's not there.
page  80
 1   THE CHAIRMAN:  It's not a question of blaming; it's just
 2       identifying.
 3   A.  I suspect, as I said in my statement, the case was not
 4       being owned by anybody then.  It was in limbo pending --
 5       whether or not the Kent report was being passed between
 6       Billy Gallacher and the DCA and there was discussion
 7       going on about it I just don't know.
 8   THE CHAIRMAN:  I think that is the short answer.  You just
 9       don't know.
10   A.  I don't believe it was in the ownership, if you like, of
11       any indicter in the High Court at that stage.  I mean, I
12       didn't anticipate that I would be being asked by Billy
13       Gallacher to indict it and I rather think that was
14       possibly because it could be considered a waste of time
15       for somebody to reread it all again when I had not only
16       the background knowledge of my involvement in
17       January 1998 but also the background knowledge from the
18       Asbury case of 1997.
19   MISS CARMICHAEL:  Just bringing this strand to a close,
20       looking at CO3451, this is a letter from Mrs Greaves to
21       Levy & McRae and it certainly appears from that that she
22       has received instructions that at least productions can
23       be got back from the Quayside Development Branch.
24   A.  As I think I said in my statement it appears that the
25       letter of October may have impelled some action
page  81
 1       somewhere.  I am not seeking to suggest and to say that,
 2       no, I, Gillian Climie, was not involved in getting Crown
 3       Counsel's instructions and it was someone else who got
 4       instructions because clearly the instructions which was
 5       to accept the Crown -- well, I assumed to accept the
 6       Kent report was not how it should have been.  I'm not
 7       seeking to elide that responsibility but I honestly do
 8       not have any recollection of dealing with it.
 9   Q.  But in any event can I take it from what you said
10       earlier that, at this stage, you were working in a
11       different post?
12   A.  As I said, I moved.  I moved on the first working day --
13       first working Monday of October.  I thought it was the
14       2nd.  Somebody said it was 5th.
15   THE CHAIRMAN:  You said the 2nd in your statement so we
16       assume -- Monday 2nd October, you said.
17   A.  I think Miss Carmichael indicated somebody had indicated
18       5th October.
19   MISS CARMICHAEL:  I think there is a suggestion that is the
20       correct date.  I can't say I have checked it myself but
21       it is perhaps a point of detail.  In any event, the
22       first working Monday of October, whatever the date of
23       that may be.
24   A.  Can I say, I have listed in my statement and I was
25       trying to be helpful to the Inquiry here -- and if you
page  82
 1       can just bear with me while I find it ... paragraph 15,
 2       I've conceded that when Crown Counsel looked at the Kent
 3       report there would have been factors which might -- I'm
 4       not saying did -- might have affected the
 5       decision-making.  I'm not saying that Crown counsel did
 6       not give an explicit instruction, "Oh no, the Kent
 7       report's fine we're not going to bother with the general
 8       scientific bit and the other bit", you know, I'm just
 9       saying it's quite -- I can see room whereby those other
10       matters which of course flowed from the DCA's bit about
11       let's get, for presentational purposes, scientific
12       evidence, that might have been overlooked when the
13       instruction was given on the Kent report.  I mean, I
14       have to concede that and you will see the things I've
15       suggested there.  I've done them under A, B and C.
16   Q.  I can see that if we look at page 8 of your statement.
17   A.  Page 8 into page 9.
18   Q.  It comes to this I think, and you will tell me if I am
19       wrong: it's not something you have any personal
20       recollection of but on the basis of knowing how Crown
21       Office worked at the time you are making the suggestions
22       that you do at points A, B and C here as to how matters
23       might not fully have come to the attention of any
24       Advocate Depute who may have looked at it?
25   A.  Of course another thing that I have not referred, there
page  83
 1       is a split in the files, you know.
 2   Q.  But you've drawn our attention to that in your oral
 3       evidence today and that's another possibility.
 4   A.  Everybody's attention was at the time, this evidence is
 5       correct, we have relied on SCRO evidence for -- I don't
 6       know when did SCRO --
 7   THE CHAIRMAN:  I think we have this point very clearly.
 8   A.  Sorry, my Lord.  Sorry for labouring it.
 9   MISS CARMICHAEL:  The Chairman has clearly noted your point,
10       Ms Climie, on that.
11   A.  Just one little point that's not labouring at the point,
12       I hope.  What we didn't get or what wasn't available at
13       the trial, if anything would only have weakened the
14       Crown case because we wouldn't -- we didn't have this
15       scientific person that I was envisaging to come to help
16       us.
17           Now if we accept that Y7 was not Shirley McKie's
18       print, right -- now, I know that's a question that's in
19       the air and has been in the air since 999 or earlier --
20       if we accept that it wasn't her print, the fact that the
21       Crown case was weakened would only help the interests of
22       justice.  It would have helped her towards her acquittal
23       which she was entitled to if it wasn't her print.
24           So far as the checking of Y7 by an English expert on
25       English standards, that would only be relevant if we
page  84
 1       established in 1997 English fingerprint practice was,
 2       indeed, more stringent in how it counted these points of
 3       similarity.  As I've said before and I'll repeat, it was
 4       not a cross-check we were instructing.
 5           So, you know, I know that Mr Moynihan in his opening
 6       statement has put various questions to be asked: what
 7       was the outcome of the Crown failure to exhaust the Kent
 8       instructions?  Well, I would submit we don't know until
 9       we can establish -- I suppose it might be that there was
10       a difference in the standards, we would have put that
11       print to somebody in England, a head of a bureau
12       somewhere, Metropolitan Police or something, and he
13       would have said, "This isn't her print", then we would
14       have said, "Oh, stop, stop.  We will have to look into
15       this further", you know, we have to ... and it might
16       have resulted in Shirley McKie not being tried but then
17       again it might have been because you will remember when
18       Mr Murphy was presented with contrary evidence from
19       America four days before or five days before the trial,
20       he didn't stop and say, "Oh, oh, oh, wait a minute we'd
21       better get this looked at", he carried on with the
22       trial.  So ...
23   THE CHAIRMAN:  Yes.
24   MISS CARMICHAEL:  You have said your next recollection is in
25       late 1998, perhaps over the Christmas period when you
page  85
 1       come to indict the case.
 2           At that stage, if you can put yourself back there
 3       with the difficulty of not having the file, what was
 4       your state of information as to the line of defence, if
 5       any, at that stage?
 6   A.  It's a difficult case to know what the line of defence
 7       is because it's not like you've got a police interview
 8       or you've not had a judicial examination or you know
 9       she's going to say self-defence or, "No, I wasn't there.
10       I was somewhere else", or she's not going to
11       say ... what did they used to say, what was it, "It
12       wasn't me.  It was him.  He hit me first.  I wasn't even
13       there ..." the usual types of Scottish defence.
14           I mean, she was certainly denying it was her print
15       and denying she had been in the house, penetrated to the
16       bathroom area to have deposited the print.
17           So, I mean, she had made various suggestions about
18       planting and forgery of the print and I felt we had
19       dealt with them.  She had never, as far as I was
20       aware -- but I may be wrong -- she had never suggested,
21       you know, SCRO had got it wrong but I suppose that might
22       have been implicit in her denial of her being there,
23       that SCRO might have got it wrong.
24           I felt that we had looked into the issue of
25       planting -- Dr Kent had covered that -- we had -- we had
page  86
 1       looked at the issue of planting, we covered that.  I was
 2       aware that Y7 had been or I believed Y7 had been checked
 3       within SCRO to the nth degree.  I was instructing a
 4       fresh comparison of Y7 against Ms McKie's arrest prints.
 5       So I thought, well, there's another check.  That was
 6       done at January 1998.  I had no reason to believe that
 7       SCRO had made an error.  I honestly didn't know how she
 8       was going to approach her defence.
 9   Q.  If that is the answer, then that is perhaps just the
10       answer, Ms Climie.  I am not asking you to speculate or
11       to try to --
12   A.  I suppose I thought that perhaps, you know, when faced
13       with this perjury indictment she might -- you see, I
14       believe she'd been in the house and that she knew she'd
15       been in the house, right.  That was my mindset.
16   Q.  Well --
17   A.  I think I maybe believed that she got this perjury
18       indictment and that she would accept that but, you know,
19       and plead guilty but --
20   Q.  But other than --
21   A.  But I don't know.  It was a strange, strange case.  I've
22       explained in my statement what I actually believed was
23       going on in Ms McKie's head and I had sympathy with the
24       lady.  I really honestly had sympathy with the lady.
25       You know, you tell a lie once, a small lie, things
page  87
 1       can -- you know, we all know we've done it as children
 2       or perhaps as adults as well and, you know, I had
 3       sympathy with her and she simply could not back-turn.
 4       Perhaps it's wishful thinking of me that she would plead
 5       guilty to perjury and if she's not guilty, then she was
 6       quite right not to plead guilty to perjury.
 7   Q.  Well --
 8   A.  She must have been under a colossal amount of pressure,
 9       a pressure which I actually I think only in later years
10       in reading about what's happened since, I've probably
11       only now -- well, I've only appreciated it over the
12       years.  I suppose at the time, you know ... I don't
13       know.  I honestly don't know.
14   THE CHAIRMAN:  You have covered all the defences you could
15       anticipate from what you have said.
16   A.  Well, yes.  I still think, my Lord, that the decision to
17       prosecute Ms McKie was, in retrospect, the wrong
18       decision.  But that was not based on evidential
19       considerations, that was based on my consideration of
20       where the public interest lay and I've covered that in
21       my statement and I know it's not part of your Terms of
22       Reference but, you know, I wasn't making the decisions
23       here.  I mean, at the end of the day --
24   THE CHAIRMAN:  Well, I mean, I think I am keen not
25       to intrude on an area that I don't think is open to me.
page  88
 1   MISS CARMICHAEL:  Perhaps an extra bit of correspondence we
 2       can perhaps look at is the letter CO3445.  We see this
 3       is a letter dated 19th January 1999 from yourself to
 4       Mrs Greaves in Glasgow regarding the case of Shirley
 5       McKie.
 6   A.  Can I just establish has this been recovered from the
 7       Glasgow file?  It looks like an original.  It's got my
 8       signature on it.
 9   Q.  It has come from papers that -- well, I perhaps won't go
10       into the detail of precisely how they have been
11       catalogued for us, Ms Climie, but we believe this to
12       come from the Glasgow end broadly.
13   A.  That would make sense because it's got my signature on
14       it.  I wouldn't normally sign a copy.  I might initial a
15       copy but I wouldn't sign it.
16   Q.  This is a letter in which you are giving some further
17       instructions to Mrs Greaves as to the further
18       preparation of the case and lodging of productions.
19       Would that be correct?
20   A.  I suppose this is really the shopping list letter
21       arising from my indictment work on the McKie case.  I
22       was trying to tie off loose ends.  Obviously I failed to
23       tie off the end of the Kent report, as you've drawn my
24       attention to, and if there wasn't an explicit
25       instruction by Crown Counsel about that, then I have
page  89
 1       failed.
 2   Q.  What you do say in this letter about Mr Kent is in the
 3       fifth paragraph or so on the first page and you say that
 4       his statement dated 13th May 1998 should be lodged as
 5       production 186:
 6           "You will note that I have included this on the
 7       indictment list."
 8           You say that you have added Mr Kent as witness 71.
 9           Is there anything that you can infer either about
10       your consideration of his report or about possible
11       consideration of his report by Crown Counsel from what
12       we see on the letter?
13   A.  Nothing really.  I don't think that tells you anything.
14       I 'don't think you can take from those three lines any
15       -- you can't infer any kind of background.
16   Q.  That's helpful?
17   A.  It's just me drawing to Denise's attention to the fact
18       that the productions -- the report's to be lodged,
19       giving its number and that I've put Mr Kent on as a
20       witness.
21   Q.  Leaving that letter then, I think it comes to this:
22       you've got no recollection yourself about interacting
23       with Mr Kent's report with Crown Counsel and you have
24       given explanations as to how things may have occurred in
25       Crown Office.  I don't have any further questions for
page  90
 1       you about those matters, Ms Climie.
 2           However, there are a couple of things that I would
 3       like to ask you about that you mention in paragraph 22
 4       of your statement if you can look at page 12 of your
 5       statement there.
 6   A.  Can I say that I don't think this paragraph is
 7       particularly well laid-out and I would welcome an
 8       opportunity to explain what I mean by, quote,
 9       infallibility, unquote, of fingerprint evidence.
10   Q.  That wasn't precisely what I was going to ask you about.
11   A.  Sorry.
12   Q.  I think you have been very clear about what your state
13       of belief was about SCRO identifications at the time you
14       were dealing with the matter and I don't want to trouble
15       you with that again because you have spoken very clearly
16       to the Chairman about that.
17           The two matters that I wanted to ask you about were,
18       if you go perhaps halfway down that paragraph and
19       perhaps slightly further, you said:
20           "I understood that the police wish was that Y7 would
21       turn out not to be Ms McKie's print after all, but that
22       their wish was not fulfilled."
23           I wanted to ask you what you meant by that.
24   A.  Is it not clear, no?
25   Q.  Not to me.  Others may --
page  91
 1   A.  The police are investigating a murder, okay, and it's a
 2       murder of, I think, a rather isolated lady living on her
 3       own with, as I understand it, no close relatives and no,
 4       if you like, close associates.  I don't know.
 5           I remember the talk in Crown Office at the time it
 6       happened, before Asbury precognition was even -- I'm
 7       talking about the early months of 1997 -- and it was
 8       recognised very early by the police that this was a
 9       murder that could only be solved, a serious, horrendous,
10       disgusting crime that could only be solved by, if you
11       like, forensic/fingerprint evidence.
12           I remember talk about the house and, can I say,
13       being originally a native of Kilmarnock, I knew the area
14       and I knew exactly where the house was so I was
15       interested in it.  I knew that the house had been sealed
16       by the police and a huge forensic operation had been
17       launched under the very able direction of Mr Heath.
18           Normally, murders in my experience -- and I think I
19       probably dealt with, I think, about on average 25 in
20       each year that I was there; so maybe about 75, something
21       like that -- most murders the police have a good idea
22       who did it straight away.  It's usually the partner or
23       another member of the family or an associate or
24       something.  Stranger murders are not common, thankfully.
25           This was a murder that was going to be solved by
page  92
 1       good, honest, hard-working, intense police and forensic
 2       work and, I mean, I think, having read Mr Heath's
 3       statement, I mean, one has to express admiration for the
 4       direction that must have been involved in that
 5       operation.
 6           So they were trying to eliminate all the prints and
 7       either eliminate them to the deceased or eliminate them
 8       to known people who had been about the house.  That's
 9       perhaps a possible job with Miss Ross because, as I say,
10       I don't believe there were that many visitors to the
11       house or maybe somebody else.
12   Q.  I don't wish to interrupt you but am I beginning to take
13       perhaps what you tell us that what you mean here is that
14       it would have been rather more useful if Y7 had not been
15       that of a police officer but of somebody of interest to
16       the --
17   A.  No, that's not my point at all.  That's not my point at
18       all.
19           Y7 was found, as I understand, close to where the
20       body was and it was of an interest to the police.  It
21       was eliminated to a police officer.  Now, if that had
22       been all that had happened, I suppose that would have
23       been a disappointment to the police: just eliminated a
24       police officer, end of story.  However, this police
25       officer, who shouldn't have been in the house, was
page  93
 1       denying emphatically that she'd been in the house.  That
 2       was a problem to the police.
 3           I mean, fingerprints are telling us this is the
 4       fingerprint of an officer involved in this inquiry.
 5       That officer is, as we believed at the time, refusing to
 6       admit, because we believed that she'd been in, refusing
 7       to admit that she'd been in the house.  That was a
 8       problem in the inquiry and I think that comes out in
 9       what Mr Heath said.
10           So if the police wanted -- they would have wanted
11       SCRO, as I read it, to have come along and say, "Oh,
12       gosh, we made a mistake here.  It's not Shirley McKie's
13       print at all.  It's somebody else.  Let's find whose
14       print it is".
15   Q.  Thank you for clarifying that.  That's helpful.
16   A.  So, you know.  I'm worried that I've haven't been -- I
17       thought I'd made that quite clear.
18   Q.  That's certainly clarified for me, Ms Climie.
19   THE CHAIRMAN:  That explains it.
20   MISS CARMICHAEL:  The next thing I wanted to ask you --
21   A.  Can I just say that it's maybe not very good language to
22       use.  It suggests that, you know, I'm suggesting the
23       police were wanting to collude and pervert and
24       everything, you know.  My experience of life is when
25       there's a major difficulty, it's usually a cock-up and
page  94
 1       not a conspiracy.  So let's not going looking for
 2       conspiracies all the time because it just -- it detracts
 3       from looking at what really happened.
 4   Q.  Thank you for that, Ms Climie.
 5           The next thing I wanted to ask you about in
 6       paragraph 22 is, in fact, the next sentence.  You say
 7       you were completely unaware of the fact that opinions as
 8       to the origin of Y7 as being Ms McKie diverged among
 9       various fingerprint experts when working at SCRO.
10           Again, I would like to know what your understanding
11       now is as to divergence of opinion amongst experts
12       working at SCRO?
13   A.  Can I say that what happened was the Fingerprint
14       Inquiry man came to see me, right.  I think I was
15       contacted on the Tuesday and he came on the Monday
16       following or something and during that week I began to,
17       you know, panic a wee bit and think, you know, what have
18       I got to tell this big Inquiry?  Obviously I followed
19       the McKie case in the papers over the years.  One could
20       not live in Scotland and not be aware of it.
21           During that week, I logged on to the report by the
22       Justice 1 Parliamentary Committee, which I think was
23       2006 possibly, and it's not a document I would ever have
24       had any interest in reading.  I read in that all about
25       what had happened, about Y7 was identified by was it
page  95
 1       Mr Macpherson to 16 points, I think --
 2   Q.  Yes, you would be right.
 3   A.  -- who passed it to Mr Geddes who could only find 10.
 4       So then Mr Macpherson went to three others who were
 5       prepared to identify it and then there was obviously
 6       Shirley McKie then denied it was hers and then there was
 7       further checks and there was blind tests and various
 8       people did blind tests.
 9           What I don't think I understood when I wrote this
10       statement.  And I think I've only understood it when I
11       read Mr Geddes' statement -- which I've got to say was I
12       read bits of it over ... was it the weekend?  Did he
13       give his evidence on Friday?
14   Q.  You are talking about reading transcripts on the web?
15   THE CHAIRMAN:  Yes, Friday.
16   A.  I don't think I understood it quite until I read his
17       statement about how, you know, one can well identify at
18       less than 16.  I don't think I understood that, right.
19           So when I say that in this bit about I was
20       completely unaware -- well, I was completely unaware
21       that opinions as to origin varied or diverged, I'm not
22       sure that's actually accurate to how it was and I think
23       I'm being unfair there.  In fact, I know I'm being -- I
24       acknowledge I'm being unfair there to SCRO.  I'm trying
25       to be fair to all sides.  I'll put my cards on the table
page  96
 1       and tell you I cannot believe that SCRO experts would
 2       conspire against anybody.  They may make mistakes, they
 3       may be careless but I don't think they'd be dishonest.
 4       I just don't believe that.  So --
 5   THE CHAIRMAN:  I think you have explained, really, this
 6       passage in your statement.
 7   MISS CARMICHAEL:  If I could again perhaps --
 8   A.  I still think that the Crown should have known -- not in
 9       every case perhaps of fingerprints but certainly in the
10       Shirley McKie case, certainly about Y7 the Crown should
11       have known all that we know now of what was going on
12       internally in SCRO.  All that the Crown knew when
13       Shirley McKie was indicted was that four fingerprint
14       experts were prepared to say, "We can identify that
15       print to 16 points of comparison and that it is her
16       print in our expert opinion".  Now, that's all we knew.
17           We didn't know -- I was aware that there was checks
18       and rechecks and rechecks and that's because I
19       understood Shirley McKie had denied having been in the
20       house and therefore SCRO were asked to check it and
21       check it again and what have you.  But I still think the
22       Crown should have known about all that was going on
23       internally in SCRO before we indicted it and that's why
24       I say later on that the system needs looked at so that
25       the Crown does not simply act on reports and I put this
page  97
 1       in the context of all expert witnesses, not just
 2       fingerprints, but obviously fingerprints but others as
 3       well.
 4           The Crown should know exactly what's going on.
 5       Everything should be documented in a standard format so
 6       that the Crown -- and in a format that the Crown can
 7       understand, so that we know what's going on so we can
 8       judge.  You know, I mean, let's assume -- I don't know
 9       whether Denise Greaves actually precognosced any of the
10       fingerprint experts.  I don't know if she actually saw
11       them.
12   Q.  I think we have heard that she did but I think actually,
13       Ms Climie, what you just have done is in a sense
14       answered the next question I was going to ask you
15       because you have told us that you, as somebody working
16       within the Crown, would have wanted to know about people
17       identifying to fewer points --
18   A.  Well, you know, this idea that we're just presented with
19       a report, right, and that's it, you know, I think we
20       should have an audit trail.  I think we should have all
21       the paperwork and I think the paperwork should be
22       standardised and we should know how many -- you know, I
23       just see in reading about what happened in Y7 and no
24       doubt in was it Q12 as well, I just feel that, you know,
25       there's so much room for improvement.  Now, it may have
page  98
 1       been improved.  I don't know, you know.  I'm not au fait
 2       with all these things.
 3           But all I feel is that, you know, the Crown might
 4       have taken a different attitude towards indicting
 5       Shirley McKie.  You know, we're lulled into a false
 6       sense of security.  You know, fingerprints have never
 7       been challenged, they've never been -- well, never
 8       challenged successfully, as far as I know, not in
 9       Scotland anyway.  You know, this one has been checked
10       and rechecked and rechecked, all this kind of stuff.
11           Infallibility applies to the science on which it's
12       based.  It doesn't apply to the people applying the
13       science and I think we've got to draw that distinction
14       and I think we should know, the Crown should know, how
15       it's done.  I mean, how the mechanics of it all are
16       worked out.  That's beyond me but I think the Crown
17       should know, if you like, the internals of what's gone
18       on so we can judge whether this is evidence that we
19       really want to rely on in court.
20           The Shirley McKie case, I know that Sheriff Murphy
21       is of the view that there was some other evidence that
22       she might have been at the house at some time when she
23       wasn't supposed to have been there, although she never
24       penetrated or she wasn't seen beyond the porch.  I
25       always looked at the Shirley McKie case as a case that
page  99
 1       depended 100 per cent solely on that fingerprint.  I
 2       didn't see -- I don't know whether -- I don't recall
 3       Denise highlighting such an issue.  I think that -- I
 4       may be wrong but I think that maybe was a Sheriff Murphy
 5       or a Mr Murphy thing --
 6   Q.  Well --
 7   A.  I didn't see it that way.  I saw it as a case that
 8       depended 100 per cent on the print and that's what I
 9       said to you earlier.  When I was involved in the case,
10       you know, there was a wee small voice at the back of me
11       saying, "I just hope we've got it right.  I just hope
12       we've got it right here".
13   Q.  I think I have one final question for you and I think it
14       may be, from what you have already said, the answer has
15       almost answered itself, but if you had known about the
16       people who hadn't been able to find 16 points in Y7,
17       what effect would that have had on perhaps the focus
18       about getting a further opinion from somebody else?
19   A.  I think -- I don't know the whole story even now of what
20       happened.  I mean, I'm only going on what I'm reading.
21       I've gone on a very, very steep learning curve.  I
22       had -- when the McKie case went belly-up, right, you
23       know, I was personally upset.  I was personally upset.
24       I was upset for Shirley McKie, I was upset -- I've been
25       upset for the SCRO people as well because I think
page 100
 1       they've been appallingly treated.  So I tried to avoid
 2       reading too much about it.  But when I was contacted by
 3       the fingerprint Inquiry guy I went on to the website, I
 4       went on to the Internet and there's so much material I,
 5       mean, you could spend a lifetime reading it but, I mean,
 6       things are read where obviously I've been following this
 7       Inquiry and I've read the big chunks anyway of the
 8       Parliamentary Inquiry --
 9   Q.  If I can stop you perhaps and just summarise the
10       evidence that has become available to the Inquiry which
11       is that, as you said, Mr Geddes found 10 points,
12       Mr Mackenzie found somewhere between 10 and 13 points,
13       Mr Dunbar found more than 10 but fewer than 16 points,
14       that Mr Bruce found 8 points and that Mr Foley found
15       10 points.  Putting those specific figures to you, would
16       that have made a difference?
17   A.  Why are these things not revealed in precognition, if
18       these people were precognosced?
19   THE CHAIRMAN:  But the answer to the question, would it have
20       made any difference had you known this?
21   A.  Well, I think I would have been -- I would have been
22       wanting explanations for this was because I believed,
23       right, that, you know -- I believed everybody in SCRO
24       was honest, expert and competent and that the place was
25       properly managed, okay, in accordance with accepted
page 101
 1       Fingerprint Bureau standards and was inspected and all
 2       of it.
 3           I would have been wanting to know from these people,
 4       okay, why is it -- I thought that everybody saw the
 5       same.  So somebody saw 16, another expert would see the
 6       same 16, another expert -- I didn't realise there was
 7       differences of opinion.  I think I'd have been looking
 8       at it in much more detail.  I would have been asking
 9       questions.  I might have been going down the line of
10       recommending to Crown Counsel a check from outwith SCRO.
11       In fact, I think I can almost say I would certainly have
12       been recommending that to Crown Counsel, look, you know,
13       this case is totally perilled on one fingerprint.
14       There's no circumstantial evidence, in fact, there's
15       evidence that she wasn't in the house if we accept it,
16       you know.  I think I would have been asking -- I
17       wouldn't have been, you know, I wouldn't have been --
18       I'd have been looking at it much more critically and,
19       you know, you know ...
20           But then again, you know, if Shirley McKie had been
21       indicted and acquitted would anyone have looked at Q12?
22   THE CHAIRMAN:  I think it's a fair answer that you would
23       have looked at it more closely.
24   MISS CARMICHAEL:  I don't have any further questions for
25       you, Ms Climie.
page 102
 1   THE CHAIRMAN:  Perhaps I should ask is anybody seeking leave
 2       to cross-examine the witness?
 3   MR SMITH:  Sir, there is just one matter that I would like
 4       to ask about and that is covered to an extent in what
 5       has been said before, what would have triggered any kind
 6       of outside report apart from what we've heard, just a
 7       question on that.
 8   THE CHAIRMAN:  If you want to ask the question.  I think it
 9       may, more or less, may well have been answered.
10   MR SMITH:  I think so, sir, but also if I may say I have
11       instructions from Mr McKie and on behalf of Shirley
12       McKie to make it clear to this witness that they see no
13       criticism whatsoever about this witness's conduct in
14       this matter.  I know she's very concerned about it.
15   THE CHAIRMAN:  I am grateful to you because she is --
16   A.  I'm grateful for that.  Thank you.
17   MR SMITH:  Certainly having heard your evidence Mr McKie
18       wants to make it clear to you that he never thought
19       there was any criticism and he certainly has no
20       criticism of your conduct in this matter at all.
21                    Cross-examined by MR SMITH
22   Q.  Can I ask you just this one question.  It is somewhat
23       hypothetical as I'm sure you heard me relate it to the
24       Chairman: against the background of what was going on
25       and you not -- and, as I say, justifiably not --
page 103
 1       deciding that you were wanting to get an outside agency
 2       to either affirm or deny the identification of Y7 as
 3       Shirley McKie's, is there anything that would have made
 4       you decide, if you had been provided with it, anything
 5       that would have made you decide you ought to get an
 6       outside agency to look at this?
 7   A.  I'm sorry, I'm not meaning to -- could you repeat that?
 8   Q.  Perhaps if I just put it this way: we heard an
 9       indication in some of the evidence about those who were
10       less than 16 points and you knew, of course, that there
11       was a 16-point standard.
12           Now, I think you indicated latterly that you
13       probably would have seen that as being a reason to get
14       someone else to double-check, someone outside.  I think
15       one bit of information that wasn't given to you that
16       there were two other individuals, Mr Padden and
17       Mr McClure, where I think their evidence -- and I'm sure
18       I'll be corrected if I'm wrong about this -- was they
19       couldn't come up with any analysis that would hold water
20       in this.
21           If you had been told that, if there had been an
22       audit trail passed on to you, I take it you would have
23       no doubt that you would then have asked for someone else
24       to analyse it?
25   A.  I mean, I know the point made by Mr Geddes was that
page 104
 1       look, you know, 16 points is a court-imposed thing, it's
 2       nothing to do with fingerprint practice, "We can
 3       identify", and of course they have moved away from the
 4       16-point thing.
 5           At the time this was happening, I believed that
 6       every officer identifying the print had looked at the
 7       print independently of everybody else and had identified
 8       16 points.  I think I probably thought they would be the
 9       same 16 points as well.  If I had heard or known
10       anything different, I think I might have been asking
11       questions.
12           But can I say that I've been in the Fiscal Service
13       for 24 years and I've never had to lead fingerprint
14       evidence in court; maybe I've just been lucky.  Some
15       people, I think, have.  It's not been challenged by
16       contrary evidence but we've have to be put to the proof
17       of it.
18           I have received no training at all about
19       fingerprints, the science of it, what they do.  I've
20       learnt more about fingerprints probably in the last few
21       weeks than I've ever likely to have known in rest of my
22       life had I not been involved in this.  There's a lot to
23       know and particularly with the introduction of the
24       non-numeric standard, I think that a lot of Fiscals
25       would have a great difficulty in leading evidence on the
page 105
 1       non-numeric standard.  I mean, you can't lead evidence
 2       when you don't know anything about the subject you are
 3       leading on.  We've all been in that position.
 4           The problem with the Fiscals, you have to know about
 5       so many things; you have to know about hundreds of
 6       things.  You can't be expert in everything and I really
 7       do feel that what we should do is we should get the
 8       Crown and the SCRO people together and we should have
 9       seminars, round the table discussions, not formal
10       courses, round the table discussions and SCRO can tell
11       us all about fingerprinting, you know.
12   Q.  I follow.
13   A.  We could all learn.  They could learn what we expect in
14       court or what would help us and then we're dancing
15       together.  We're not, you know, in this situation when
16       I'm asking a question and I don't know what the answer
17       to it is.  I'm feeling for information.  The SCRO
18       experts know what I'm looking and is not sure what to
19       give and is not very good at -- well, not very
20       experienced at explaining it.  If fingerprint evidence
21       is to be challenged in court regularly and I don't know,
22       I'm not aware that it is, but if it is, we really need
23       to get our act together on it.
24   MR SMITH:  Thank you.  I don't want to interrupt you.  I
25       know you feel very strongly about this but thank you for
page 106
 1       your assistance.
 2   THE CHAIRMAN:  I realise it is 1.00.  I just want to have an
 3       indication because we have another witness we hope to
 4       continue.
 5   MR HOLMES:  I will have an application, sir, on a couple of
 6       matters.
 7   THE CHAIRMAN:  You will.  Does anybody else?
 8   MISS GRAHAME:  Yes, I will.
 9   THE CHAIRMAN:  You will.
10           Then sorry, Ms Clime, that we cannot finish you
11       before lunch.  1.50.
12   (1.02 pm)
13                     (Luncheon Adjournment)
14   (1.50 pm)
15   THE CHAIRMAN:  Mr Holmes, you have an application.
16   MR HOLMES:  Thank you, sir.  There are four matters that I
17       would like to cover.  The first is the availability of
18       an independent report; that is to say, independent of
19       SCRO and not a further report from SCRO.
20           The second is the procedure at the start of
21       Ms McKie's trial.
22           The third is Ms Climie's knowledge of the case since
23       1999.
24           The fourth is the training matter which we got on to
25       towards the end of the evidence.
page 107
 1   THE CHAIRMAN:  Yes.  When you say the procedure at the
 2       trial, is this about whether it should have been
 3       adjourned or an application should have been made?
 4   MR HOLMES:  Indeed, sir.
 5   THE CHAIRMAN:  Very good.
 6                   Cross-examined by MR HOLMES
 7   Q.  Ms Climie, before I start you will understand that I
 8       appear on behalf of the former SCRO experts so the
 9       position I will be taking throughout this Inquiry is the
10       identification of Y7 was correct.
11   A.  I understand.
12   Q.  With that in mind, the first thing I would like to ask
13       you about is the availability of an independent report.
14       There has been much discussion during your evidence of
15       whether outside report ought to have been sought.
16           Were you aware prior to the trial beginning that, in
17       fact, an independent report had been instructed by the
18       defence?
19   A.  Are you referring to the Peter Swann report?
20   Q.  Yes.
21   A.  I had no knowledge of Peter Swann.  When I received my
22       letter indicating that the Inquiry person wanted to
23       speak to me, I was given a list of matters which they
24       wanted to discuss and one of them was my knowledge of
25       Peter Swann and the name at that time meant absolutely
page 108
 1       nothing to me.
 2           Obviously, I have read considerably since March and
 3       I'm aware that Peter Swann was instructed by Shirley
 4       McKie's solicitors was it Levy & McRae in advance of her
 5       trial to look at Y7 and I'm aware now that his view was
 6       that it did indeed -- it was, indeed -- it's origin was
 7       indeed Shirley McKie's, was it left thumb?
 8   Q.  Having learned that, would Peter Swann's report being
 9       available, in your view, satisfy the need for some kind
10       of independent check?
11   A.  Well, it's difficult to answer that because I'm talking
12       about an independent check before we indicted Shirley
13       McKie and, of course, Peter Swann wasn't in until, you
14       know, after she had been indicted in the run-up to the
15       trial.  So would it have reassured me knowing he had
16       said that?  Yes, it probably would have reassured me if
17       I had known about it.
18   Q.  I don't know if you aware that during her evidence
19       yesterday Mr Greaves confirmed that she was aware
20       of Peter Swann's involvement and his conclusions prior
21       to the beginning of Ms McKie's trial; did you know that?
22   A.  I didn't know that but the Fiscal is more on the ground
23       than the indicter at Crown Office is.  So she may well
24       have done, possibly through Levy & McRae, discussions
25       with was it Ms McCracken that was acting at the time?  I
page 109
 1       don't know.  I certainly wasn't aware of the gentleman's
 2       involvement at all or his conclusions.
 3   Q.  If that was something that had been unknown to the
 4       Fiscal prior to the trial, would you have expected that
 5       to be communicated to the Trial Depute?
 6   A.  You mean by the Fiscal?
 7   Q.  Yes.
 8   A.  Well ... you've got to understand how it works.  Denise
 9       at the time -- well, she precognosced that case when she
10       was in the Complaints Against the Police Unit, as I
11       understand, and then she moved out of that into leading
12       a Solemn Unit at Crown Office, which is very
13       office-based.  So she wouldn't necessarily have been in
14       touch with the Trial Advocate Depute.
15           Are you suggesting that she, Denise, should have
16       communicated that to the Trial Advocate Depute?
17   Q.  I'm suggesting that perhaps someone should have
18       communicated to the Trial Advocate Depute that a
19       positive defence report had been sought and was
20       available.
21   A.  Yes, bearing in mind when -- I don't know when Denise
22       heard about Peter Swann's involvement and conclusions
23       but of course at the point when she heard about it she
24       would not necessarily have known that -- I don't mean
25       this pejoratively -- two Americans had come out of the
page 110
 1       woodwork challenging it.
 2           If Denise had learned that two Americans had come
 3       out of the woodwork challenging the print, yes, I would
 4       have thought that she would have thought, "Oh, now I
 5       know that the defence had an English expert in Peter
 6       Swann and I was told by Levy & McRae that he had
 7       confirmed the identification.  Maybe I'd better let the
 8       Advocate Depute know about this".
 9           As I understand the position, only from my
10       information from Sheriff Murphy's evidence, the reports
11       were only produced the Friday before the Wednesday when
12       it started, something of that nature.
13   Q.  Mr Wertheim's report, yes?
14   A.  Sorry?
15   Q.  Mr Wertheim's report, yes, the American expert.
16   A.  So Denise may not have known about that.
17   Q.  Mrs Greaves has confirmed to yesterday she knew prior to
18       the trial of Peter Swann's involvement but unfortunately
19       we do not have a statement from Mr Swann so we don't
20       have any position from him as to whether the report was
21       available but it's understood from Mrs Greaves' evidence
22       that the report was known to her prior to the beginning
23       of the trial.
24   A.  I certainly didn't know about it.  If you're asking me
25       to comment on Denise's state of knowledge, I mean, it's
page 111
 1       very, very difficult for me to do that.  I'm offering an
 2       explanation as to why she might not have conveyed that
 3       information to either the Sitting Manager at Glasgow,
 4       that being Iain Bradley, to pass on to the AD.  I'm
 5       simply suggesting she may have learned of Peter Swann,
 6       Peter Swann had confirmed the identification for the
 7       defence and lo and behold two Americans appear
 8       challenging it.
 9           If she had known these Americans had appeared with
10       their report challenging the SCRO conclusions then, you
11       know, she might -- she would -- one would have hoped.
12       She may have been on holiday; she may have been engaged
13       on something else.
14   THE CHAIRMAN:  I think it is very difficult for this witness
15       to comment on the state of mind of --
16   MR HOLMES:  I think the appropriate question is, under
17       ordinary circumstances, if the Procurator Fiscal becomes
18       aware of a defence report that confirms the findings of
19       the Crown expert, ought in the ordinary course of things
20       that Procurator Fiscal to communicate that to the Trial
21       Depute?
22   A.  I see your question, not without the later knowledge
23       of ... I wouldn't condemn anybody for not passing that
24       information on.  I suppose in absolute best practice,
25       yes, but the way our system is organised in High Court
page 112
 1       prosecutions there's so many different wings involved.
 2       There's the Fiscal, there's the Crown Office indictment
 3       end, there's the Advocate Depute.
 4           Nowadays, it's a wee bit more joined-up in the sense
 5       that the Advocate and the indicter are more working in a
 6       team than they used to be.  But there's still that, if
 7       you like, difference between the precognoscer or the
 8       Fiscal, if you like, on the ground and it used to be the
 9       case many, many, many years ago, even when I started in
10       the '80s, that if you worked in a small office -- I
11       started work from Dumbarton where I actually am now --
12       and if you precognosced a High Court case, because High
13       Court cases were few on the ground, you were up to that
14       case, you were up and you sat in with the Advocate
15       Depute, which was wonderful training in advocacy and
16       also very helpful for the exchange of information.  But
17       that system long disappeared in the machinations of
18       increased work loads and whatever.
19           So, I mean, I suppose the system -- information can
20       come to the knowledge of the precognoscer in so many
21       different ways and I wouldn't condemn anybody who didn't
22       pass on information to the Advocate Depute which, in
23       retrospect, might have been useful.  I couldn't possibly
24       condemn anybody.  I don't know the circumstances in
25       which she came into the information.
page 113
 1   Q.  You acknowledge it might have been useful information --
 2   A.  Yes, of course it would have been useful for the
 3       Advocate Depute to know in his cross-examination of
 4       Ms McKie that a Peter Swann had been involved and had
 5       confirmed the identification.  Of course it would have
 6       been useful.
 7           All I'm saying is the system that we have dictates
 8       against that open and free exchange of information.
 9       Everything that goes wrong in the Fiscal Service is a
10       matter, in my humble opinion, of communication.  The
11       channels aren't there, they are not kept open, they get
12       befuddled along the way and that's just another example.
13   Q.  You have made reference to Mr Swann as an English
14       expert.  Were you aware at the time that Mr Swann was
15       from England --
16   A.  I didn't know about Mr Swann until March 2009.  I think
17       I've gleaned that information.  Was he ex-Metropolitan
18       Police or something?
19   Q.  We may hear evidence about that.
20   A.  I don't know.  I think I've gleaned it as English and I
21       think he's ex-police.  I'm not sure.
22   Q.  So presumably he would be operating under the English
23       system or standard or however it's been --
24   A.  Well, I would expect that to be the case, yes.
25   Q.  Why was it viewed as important in a Scottish trial to
page 114
 1       have the opinion of an English expert?
 2   A.  Well, I don't think it was important what nationality he
 3       was, it was just following through how it came.  We were
 4       told that -- I believe that Terry Kent was going to be
 5       doing this thing and he came from Sandwich, is it, some
 6       research place there or something.  So I had envisaged
 7       him doing the scientific bit that I talked about, the
 8       explanation, the presentation to the jury explaining the
 9       scientific theory or principles behind fingerprint
10       evidence and, as I explained this morning, I thought
11       that he'd be doing that and that I'd heard not confirmed
12       but I believed that the English way of counting might be
13       more strict, more stringent and if that was the case,
14       then just to add, if you like, to the evidence just as
15       an extra, that he'd be asked to look at it from the
16       English perspective.
17           I mean, there was never any suggestion that Terry
18       Kent was the only person that could do this work.  He
19       could have been a Scandinavian or French, I don't know.
20       I imagined that we would be using Terry Kent and being
21       from an English based criminal justice background I took
22       it ... I'm not suggesting that our Scottish experts are
23       not up to it, just that English -- I believed the
24       English practice, the English way of doing things in
25       identifying ridge characteristics was more stringent,
page 115
 1       although I didn't know for sure.
 2           Can I just say as a comment that may or may not be
 3       helpful -- probably not -- I mean, throughout all the
 4       machinations that have happened we keep bringing in
 5       people from Holland, I don't know, all over the place
 6       and there's almost a kind of idea about our home grown
 7       experts aren't good enough, in the Danish say something
 8       they must be right.  I don't hold to that view at all.
 9       I don't care where they come from.  I'm only interested
10       in their expertise.
11   Q.  Indeed, it would be difficult to hold to that view in
12       the present case because the Danish experts had
13       already --
14   THE CHAIRMAN:  Sorry, we can't hear you.  For a moment we
15       couldn't hear you there.
16   MR HOLMES:  Sorry.  I won't ask that particular question in
17       any event.
18           What you are saying is that whilst the English
19       standard may have been in your opinion at the time
20       different, you didn't see it as necessarily relevant to
21       whether or not Scottish trials should proceed?
22   A.  Well, I was seeing it in the background of an English
23       person, Mr Kent, giving the jury this scientific
24       background to help them, you know, in their
25       deliberations and, on that basis, I felt that if an
page 116
 1       English person was going to do this bit of the work and
 2       if the English standard was more stringent, then that
 3       would probably come out in his evidence and that we
 4       should, therefore, have Y7 looked at on the English
 5       standard.
 6           It might not have come up to the English standard
 7       but that wouldn't necessarily have meant we would have
 8       jettisoned the prosecution if it didn't come up to the
 9       English standard.
10           As I understand it, both jurisdictions were working
11       to a 16-point standard which was way, way beyond what
12       you might actually need, that being decided in 1953, I
13       believe.  But the only point I thought was that there
14       was this what is counted as a characteristic.  As I
15       said, this morning, I think I was probably just being
16       too clever there and not working with -- not knowing
17       enough about the subject really.
18   Q.  So what you're saying about the seeking of an opinion
19       from an English expert, if I'm understanding you
20       correctly, is that it was something extra, something in
21       addition to the checks that had already been carried
22       out?
23   A.  It wasn't a cross-check.  I said that this morning.  It
24       wasn't a cross-check because it was depending on the
25       proviso the English standard was higher.  If the English
page 117
 1       standard was not higher, there was no instruction to do
 2       that.  It was if the English standard was higher.  If it
 3       was a cross-check I would have been asking for it
 4       whatever the position was, I would be asking for an
 5       English expert or an independent expert to have looked
 6       at Y7.
 7   Q.  If I can move on to the procedure at the beginning of
 8       the trial, you say in paragraph 12 of your statement
 9       that you can't believe that any reasonable trial judge
10       would have refused the Crown motion to delay the trial.
11           Does that imply that you feel there ought to have
12       been a motion to adjourn the trial?
13   A.  Now, it's not for me to say but if you want my
14       opinion -- do you want my opinion?
15   Q.  Yes, please.
16   A.  I cannot believe this trial continued in the face of
17       that American evidence without a further look by the
18       Crown and if I can say this, I think that the criminal
19       justice system was owed that and I think SCRO was owed
20       that and I think possibly even Ms McKie was owed that as
21       well.
22           We were in a situation which was totally unexpected,
23       we were in a situation where two Americans had, if you
24       like, parachuted in contradicting the evidence of SCRO
25       witnesses.  I've got to say, I would have taken cold
page 118
 1       feet if I'd been Advocate Depute and said, "Oh, hold on
 2       a minute".
 3           I mean, there's lots of things.  I mean, what was
 4       the background of these people?  Now I'm not suggesting
 5       that their background wasn't kosher.  I'm not suggesting
 6       that.  I don't think I'm suggesting that these were
 7       charlatans or anything.  I'm just saying at the time of
 8       the trial how could anyone have known who these people
 9       actually were.
10   Q.  Perhaps there ought to have been some investigation into
11       whether these people were appropriately qualified and
12       whether their conclusions were correct before the trial
13       began.
14   A.  I think also that your clients, the SCRO people, should
15       have had a proper opportunity to consider the
16       American -- I think it was one report; is that right?
17       One report -- and the materials produced in support of
18       that report and I also think that perhaps -- perhaps --
19       the Crown might have considered at that stage -- at that
20       stage -- instructing a third or another -- instructing
21       somebody else.
22   THE CHAIRMAN:  Could you just keep me right on this.  If
23       there was to be an application, not only would the judge
24       have to grant an adjournment for the reason that you
25       mentioned but would he also have to extend the time bar?
page 119
 1   A.  He would have.  This trial was originally destined, I
 2       think, for early March.
 3   THE CHAIRMAN:  Yes.
 4   A.  There was a defence motion to adjourn because they were
 5       waiting for American reports, I understand -- I think.
 6       I think I'm right in that.  The 12-month time bar must
 7       have been extended at that stage.  I think Shirley McKie
 8       appeared on petition on 8th March 1998.
 9   THE CHAIRMAN:  There seems to have been one adjournment
10       already.
11   A.  Yes.  The 12-month time bar would have been extended.
12       Of course Shirley McKie's advocate could have -- was it
13       Mr Findlay -- could have objected to the adjournment but
14       I really don't think he would have been successful
15       there --
16   THE CHAIRMAN:  I just wanted to get it clear in my own mind
17       you would have to extend the time bar as well.
18   A.  Normally if an adjournment is granted that's a formality
19       because the judge has granted the adjournment;
20       therefore, the 12-month time bar.
21           I mean, the position the Crown was in was the
22       defence already had an adjournment.  I mean, it's not a
23       question of counting but that's the fact, they had had
24       an adjournment.  The Crown had been presented with
25       foreign evidence four or five days from the trial, well
page 120
 1       outwith the period that evidence should have been
 2       lodged.  It was controversial evidence in that it
 3       challenged the very foundation of the Crown case and
 4       challenged fingerprint identification.
 5           Now, I cannot think that any reasonable trial judge
 6       faced with a Crown motion to adjourn would have refused
 7       it.  I know Mr Murphy talked in his evidence about
 8       pressure from Crown Office.  I can't think what that
 9       pressure would have been.  Certainly there was a general
10       desire that cases were dealt with, heard and dealt with
11       in their sittings to avoid what's called churn of cases
12       from sitting to sitting which was a problem before the
13       Bonhomy reforms, which I think were 2005.  The Bonhomy
14       reforms were supposed to deal with that.  So that could
15       be the only pressure.  I have to say I can't think that
16       pressure would have outweighed -- I mean, I'm not an
17       advocate, I'm not an Advocate Depute but, you know, I'd
18       have so many questions.  I might want to have these
19       defence experts precognosced in detail, ie come in to
20       see a Fiscal and go through their materials with me.
21       I'd certainly want to have a session and I don't mean a
22       lunchtime talk, I mean a proper session, discussion,
23       proper talk, with the SCRO people and I'd probably want
24       to have discussed it with a Law Officer if I had been
25       Advocate Depute and said, "Look, here's what I've got.
page 121
 1       I've got SCRO swearing four witnesses this is her print,
 2       I've now got two Americans swearing the opposite.  Where
 3       do I go with this, Lord Advocate?"  That's what I -- I
 4       mean, but I'm not speaking as an Advocate Depute.  I
 5       just know I'd have taken cold feet but then I'm a
 6       coward.
 7   THE CHAIRMAN:  We dealt with your question.
 8   MR HOLMES:  Was it common for Trial Deputes to consult with
 9       a Law Officer?
10   A.  In trials?
11   Q.  Yes.
12   A.  Yes.  Well, I say yes.  I don't -- it was always open to
13       an Advocate Depute to discuss any issue that had arisen
14       with a Law Officer.  There were some times when they had
15       to discuss things.  Like they couldn't accept a plea to
16       culpable homicide before the start of a trial.  I think
17       they could after a trial had started but they couldn't
18       before a trial started without speaking to a Law Officer
19       and I think there were certain rules about rape,
20       et cetera.
21           But it was always open to an Advocate Depute.
22       Bearing in mind the word Advocate Depute means you're
23       the depute of the Lord Advocate.  That's the meaning of
24       the word.  You're standing in the shoes of the
25       Lord Advocate when you're prosecuting in the High Court.
page 122
 1       So, yes, the answer is they can always speak -- whether
 2       it was common, I mean, there would always be a Law
 3       Officer available for consultation whether by phone or
 4       whatever.
 5   Q.  Did the law officers ever do trials themselves?
 6   THE CHAIRMAN:  What has that to do with this particular
 7       issue, Mr Holmes?  You really have to be careful now and
 8       confine your questions to the issues that you've asked
 9       to deal with.
10   MR HOLMES:  I have suggested to a previous witness, sir,
11       that perhaps given the importance of this case and the
12       impact assessed that a Law Officer ought to
13       have conducted the trial.
14   THE CHAIRMAN:  That the Law Officer should have conducted
15       this trial?
16   MR HOLMES:  Yes.
17   THE CHAIRMAN:  What is your answer.  Have you a view on that
18       or are you in a position to express a view?
19   A.  Sometimes the Lord Advocate then and, indeed, now
20       conducts important trials.  I think the most recent one
21       was the murder in Queens Park last summer which was
22       prosecuted by the Lord Advocate earlier this year, the
23       Moira Jones murder.  So the Lord Advocate then and now
24       has always -- the Lord Advocate always is going to court
25       to prosecute.  I mean, in reality probably their other
page 123
 1       obligations probably -- and the time constraints --
 2       probably militate against it but, yes, a Law Officer
 3       could have prosecuted this case.
 4   MR HOLMES:  Just moving on to your knowledge of the case
 5       since the trial has been conducted, you said in your
 6       statement and indeed your evidence earlier today that
 7       you have felt yourself somewhat guilty as a result of
 8       the way in which matters unfolded.
 9           That's based on the assumption that Y7 was
10       incorrectly identified.  Based on the assumption that Y7
11       was correctly identified which is the position of course
12       of my clients how would you feel about the case then?
13   A.  Well, if Y7 was correctly identified ... if Y7 was
14       correctly identified, then I suppose we've got an
15       unjustified acquittal but unjustified acquittals happen
16       regularly, probably.
17           As I understand it, so far as the position of your
18       clients are concerned, everything was premised on the
19       basis that there may have been dishonesty or conspiracy
20       or some form of wrongdoing behind their identification
21       as opposed to simply being wrong.
22           Obviously, if Y7 was correctly identified as
23       Ms McKie's print, then your clients have had a
24       nightmare.  But that nightmare was, I suppose, not
25       simply they wrongly identified but they wrongly
page 124
 1       identified with criminality behind it -- if you
 2       understand.
 3   MR HOLMES:  I think I do.
 4           The final matter I would like to ask you about is
 5       training.  You mentioned towards the end of your
 6       evidence or suggested towards the end of your evidence
 7       that it would perhaps be a good idea if SCRO and SPSA
 8       and Crown Office and the Fiscal Service undertook more
 9       in the way of joint training, as I understand you.  Is
10       that correct?
11   A.  Yes.
12   Q.  Would it surprise you to learn as early as the mid-1990s
13       with the introduction of AFI, the automatic fingerprint
14       recognition system, that training was offered by the
15       Glasgow Bureau to the Fiscal Service and was declined?
16   A.  I've no knowledge of that.  That would be a matter that
17       would be dealt with, I imagine -- did you say offered to
18       the Glasgow Fiscals' Office?
19   Q.  Yes.
20   A.  Well, the difficulty with that is, you know, SCRO
21       services are used by Fiscals offices not just in
22       Glasgow.  It needs to be a joined-up effort, not some
23       half-hearted local -- I'm not suggesting it would be
24       half-hearted, it needed to be a proper -- fingerprints I
25       think are very important evidence and they're not the
page 125
 1       easiest form of evidence.  They are a very, very helpful
 2       form of evidence, obviously.  I think perhaps maybe put
 3       in the shade in recent years with development of DNA
 4       evidence but nevertheless they're still an important
 5       form of evidence and I think it's a difficult or I
 6       think -- well, I've never done it but I imagine it would
 7       be quite difficult as a Fiscal, as I think I said
 8       earlier, to lead that evidence.
 9           I think possibly very few Fiscals have got much
10       experience of it.  I certainly don't and I'm 24 years,
11       so ... and also I think from SCRO personnel's point of
12       view some of them maybe court inexperienced.  I don't
13       know how many trials they give evidence in.  I wouldn't
14       imagine it's very many.  You know, particularly in a
15       jury trial when you've got to get this over to a jury.
16       Its an exceptionally difficult -- of course, if it's not
17       well-handled from the Crown point of view and if it's
18       not well put over by the SCRO point of view you've got a
19       situation where you've got very compelling evidence of
20       somebody's guilt which you're not able to get over to
21       the jury.  It's a very difficult problem.  It's not just
22       a problem for fingerprints, it's a problem for all sorts
23       of technical areas of evidence, as any Fiscal will tell
24       you.
25   MR HOLMES:  Thank you very much.
page 126
 1   THE CHAIRMAN:  Thank you, Mr Holmes.
 2           Mr Macpherson, do you have any application?
 3   MR MACPHERSON:  No, thank you, sir.
 4   MISS GRAHAME:  Yes, I would wish to ask some questions in
 5       relation to two matters: first, comments made by
 6       Ms Climie in relation to the decision to prosecute and,
 7       secondly --
 8   THE CHAIRMAN:  I think so far as that's concerned I have
 9       taken the view that that's not within my remit, the
10       actual decision which was made in the name of the
11       Lord Advocate.  I'm quite satisfied that's not within my
12       remit.
13   MISS GRAHAME:  I'm content not to ask those questions if
14       that's to be disregarded.
15           The second relates, again, to a similar matter which
16       was raised by Mr Holmes in relation to the trial
17       Advocate Depute's decisions and decisions that were made
18       at the trial.
19   THE CHAIRMAN:  Yes, I give you leave about that.
20                  Cross-examined by MISS GRAHAME
21   Q.  Ms Climie, you've already said in evidence you were not
22       the Advocate Depute prosecuting the Shirley McKie case.
23   A.  I totally accept that but I was asked for an opinion and
24       I gave my honest opinion.
25   Q.  But you were not the Advocate Depute --
page 127
 1   A.  No, I wasn't, of course not.
 2   Q.  And decisions about the case at the trial were for the
 3       Advocate Depute, Mr Murphy.
 4   A.  I totally accept that the Advocate Depute did what he
 5       saw as the correct thing to do, but I was asked for my
 6       opinion of how I judged his actions, based on what he
 7       had at the time and --
 8   Q.  I appreciate you were asked a question, Ms Climie, and I
 9       am going to ask you some more.
10           You were not in possession of any defence reports at
11       the time of the McKie trial?
12   A.  No, I wasn't.
13   Q.  We've heard evidence from Mr Murphy about investigations
14       that were carried out into the background of the
15       American experts but, again, you don't know anything
16       about those investigations?
17   A.  Well, I've read about how he used his junior to
18       telephone the San Diego's District Attorney's office or
19       something and it was all done kind of on the hoof.  I
20       would have done it -- I would have expected it to be
21       done properly by contacting the American authorities in
22       an open way, not some telephone call from your American
23       junior.
24   Q.  Ms Climie, I wonder if you could answer the question
25       which I asked you.
page 128
 1           You don't know the extent of what the investigations
 2       were?
 3   A.  I only know from what I've read in his evidence, which I
 4       understand involved his junior phoning the San Diego
 5       DA's office.
 6   Q.  So the limit of your knowledge relates to reading
 7       something from Sean Murphy's evidence; that is the limit
 8       of your knowledge?
 9   A.  Yes.  But can I say that --
10   Q.  Well, you've answered my question, Ms Climie, thank you.
11           We have also heard evidence from Mr Murphy that
12       there were two consultations which he conducted with
13       SCRO officers, the second of which went over the issue
14       of the defence report.
15           Again you, from your own personal knowledge, know
16       nothing of the extent of those consultations?
17   A.  I understand it was over a lunch hour.
18   Q.  Do you understand the question, Ms Climie?  From your
19       personal knowledge --
20   A.  Not from my own personal knowledge.
21   Q.  -- you have no knowledge of what --
22   A.  No, I wasn't personally present when he had these
23       discussions, no.
24   Q.  So any comments that you have made in response to the
25       questions asked by Mr Holmes in relation to adjournments
page 129
 1       or decisions made at the trial were wholly within the
 2       remit of Mr Murphy, the Trial Advocate Depute?
 3   A.  I totally accept that and I've said that in my statement
 4       and I prefaced my responses to the gentleman sitting
 5       over here that it was the Advocate Depute's decision but
 6       he asked me for my opinion and I gave him my opinion.
 7   Q.  And that's your personal opinion --
 8   A.  It's my personal opinion and its not --
 9   Q.  May I finish in question, please.
10   A.  Sorry.
11   Q.  That is your personal opinion and not the opinion of
12       either Mr Murphy or the Crown Office?
13   A.  Well, it can't be opinion of Mr Murphy and it's not the
14       opinion of Crown Office, as far as I'm aware.
15   MISS GRAHAME:  Thank you.  I have no further questions.
16   THE CHAIRMAN:  Now, is there anything you wish to ask?
17   MISS CARMICHAEL:  No thank you, sir.
18   THE CHAIRMAN:  Thank you very much.  We have taken up a lot
19       of your time and you have given us a lot of very
20       interesting answers.  Thank you very much indeed,
21       Ms Climie.
22                      (The witness withdrew)
23   MR MOYNIHAN:  The next witness is Sheriff Crowe.
24               SHERIFF FRANK RICHARD CROWE (sworn)
25   THE CHAIRMAN:  Sheriff, if you will take a seat, please, and
page 130
 1       I am sorry, you have been kept waiting.  Thank you for
 2       taking the time to come.
 3                     Examined by MR MOYNIHAN
 4   Q.  There are two things: the first is since the weather is
 5       most un-Glasgow-like, feel free to take your jacket off
 6       like the rest of us, if you wish.
 7   A.  I'm fine just now.  We'll see how we go.
 8   Q.  The second thing is you will note the microphone, in
 9       fact, is not very sensitive so you will need to be
10       relatively close to it.  I find myself if I can hear my
11       voice reverberate behind me then it's being picked up.
12           Do you have with you a copy of your statement?
13   A.  I do, yes.
14   Q.  Could you just have it available to you.
15           What I want to look at to begin with is paragraph 16
16       on page 12.  You make a reference to a visit you had to
17       the Kilmarnock Office in July 2000 with the Danish
18       experts and, in particular, a conversation you had with
19       Mr McMenemy.
20   A.  Yes.
21   Q.  It's in the last half dozen lines of the paragraph.  You
22       say:
23           "Mr McMenemy's recollection is that the very last
24       minute the police were able to produce the Marion Ross
25       fingerprint on the biscuit tin found at David Asbury's
page 131
 1       home and he had been slightly suspicious about that at
 2       the time.  He was aware that it was an evidentially thin
 3       case from the outset and the police had been especially
 4       thorough in their search for evidence."
 5   A.  Yes.
 6   Q.  Firstly, if I tell you that the Marion Ross print, at
 7       least I understand to be QI2?
 8   A.  Yes.
 9   Q.  Sometimes it's referred to as Q12?
10   A.  Yes.
11   Q.  Is that the print you were referring to?
12   A.  That's what I thought, yes.
13   Q.  Mr McMenemy has been asked about this particular matter
14       and if I can just give you a rough outline of what he
15       said, he agrees he met you and you were with the two
16       Danish officers, he went out for lunch with the Danish
17       officers and, if I understand it correctly, it was more
18       of a social conversation over lunch?
19   A.  Yes.
20   Q.  His understanding of the case before the emergence of
21       QI2 was that the case was circumstantial --
22   A.  Yes.
23   Q.  -- but still one that he regarded as being of substance.
24   A.  Yes.  That wasn't my recollection.  Obviously, I've
25       never seen the David Asbury police report but my
page 132
 1       understanding of events was that the print on the
 2       present, the David Asbury print on the present, I think
 3       has never been disputed, was perhaps the one that was
 4       found first and that may well have been something that
 5       caught the eye of the Scenes of Crime Officers and it
 6       was very clear and would probably have been enough to
 7       place Mr Asbury on petition for that alone.  But
 8       there's, obviously, a difference between placing someone
 9       on petition where you really only need one source of
10       evidence and fully committing someone for trial where
11       you need a prima facie case.
12           I think my understanding also was that David Asbury
13       was not fully committed a week after first appearance,
14       which is the norm, it was eight days, which sometimes
15       happens when it's a bigger case and there are
16       difficulties or whatever.  I mean, it's not unknown but
17       it may be symptomatic of a difficult Inquiry and police
18       scurrying about at the last minute to gather all the
19       evidence that they have and put it in a written form for
20       the Fiscal.
21           So I think I was aware that there was something like
22       an eight-day full committal and that other evidence
23       which my understanding may be of a standard to fully
24       commit someone for trial and these were the days of
25       course when bail was not an option.  So you were really
page 133
 1       imprisoning someone for the equivalent of seven months
 2       and you had to have a proper standard.  This was
 3       standard that was not checked by the courts so it was a
 4       standard I think we held very high and very dearly as
 5       Fiscals to achieve that.
 6   Q.  We have heard some evidence already, as you say, in
 7       particular in a murder case, a standard kept very high
 8       and very much respected by Fiscals to the extent that a
 9       three-day report was required to be submitted by the
10       Local Fiscal to the Crown Office so that the application
11       for full committal could only be made with the authority
12       of Crown Counsel?
13   A.  That's right.  So that you would base that on what you
14       had in the police report and send a copy of the summary
15       but then that might well be fleshed out in your
16       Culren(?) report with other information that had been
17       given verbally that was in the pipeline and it might
18       well be that on the strength of the initial report there
19       was not enough to fully commit.  That sometimes
20       happened.  I'm not sure if it happened in this
21       particular case at all because, as you appreciate, I
22       came into things much later and was not involved at that
23       time.
24   Q.  I will come back to that conversation in a second.  If I
25       move on and tell you what Mr McMenemy asked directly
page 134
 1       about this particular passage has said.  The initial
 2       position was a little surprised that it should be
 3       thought he had any suspicion but he said, no, he didn't
 4       have any suspicion.  QI2, yes, was important and
 5       provided a motive but even without QI2 he thought there
 6       was, though circumstantial, he thought there was a case
 7       of substance.
 8           Is there room for the possibility in the midst of,
 9       in effect, a social conversation with him over lunch
10       that you perhaps just misunderstood what he was saying?
11   A.  Possibly.  My recollection is that it didn't happen over
12       lunch, that Mr McMenemy assisted us in securing the
13       productions from Sheriff Clarke's safe or wherever they
14       were being held and, you know, we talked about it, about
15       the case very briefly, as the officers were getting
16       ready to examine the prints and I do recollect the
17       conversation occurring in the Kilmarnock Fiscals' Office
18       and, you know, he gave a sort of laugh and said, "Well",
19       and raised his eyebrows and maybe I was thinking back
20       with the benefit of hindsight he was remarking that, you
21       know, he had thought it strange at the time that they
22       just managed to get this evidence in on time and that
23       was really the nature of the conversation.
24   Q.  If I wind it back now to the start of your recollection
25       and, indeed, it may even be a suggestion that his
page 135
 1       recollection was wrong but the examination of the Crown
 2       Office files which we have seen it would appear, on the
 3       face of the records, that the three-day report was
 4       submitted as you have said with the Christmas gift tag,
 5       print XF, as the principal matter?
 6   A.  Yes.
 7   Q.  QI2 not discovered until a few days later.  The papers
 8       went to the Duty Advocate Depute and were reviewed
 9       without QI2.
10   A.  Yes.
11   Q.  And the Advocate Depute, without QI2, authorised full
12       committal and it so happens that on the day, the eighth
13       day, when Mr Asbury was appearing in court, QI2 was
14       identified.
15   A.  Yes.
16   Q.  But we understand that things were already locked in
17       place, in a sense, by then because Crown Counsel had
18       authorised the application for full committal?
19   A.  Yes.
20   Q.  If that is the sequence of events that are apparent from
21       the file, do you think it would have been surprising for
22       someone like Mr McMenemy that such a fingerprint was
23       found, QI2?
24   A.  I think he remarked on the coincidence, that it was
25       right up to the wire and it was at that late point that
page 136
 1       this other evidence emerged.  So, I mean, the police
 2       wouldn't necessarily know all the mechanics of the Crown
 3       Office side but they would be aware that they had,
 4       basically, a week to bring a better case back to meet
 5       the standard of committing somebody for trial and if
 6       they didn't do that within a week, they had one more day
 7       and then that was it.  Somebody might well be released.
 8   Q.  I will leave that particular point at that stage.
 9           There are two other points I want to just take out
10       of that same particular paragraph and that's reference
11       to the meeting -- two quite unrelated points.
12           If I can ask you, please, if we could bring up on
13       screen a precognition CO0022 and perhaps if we could
14       bring up the second page of it, this is the
15       precognition -- in fact, there is a third page as
16       well -- you may actually have the original in paper.
17   A.  I think I probably do, yes.
18   Q.  From what we saw originally do you recognise this as the
19       statement you took from Mr Rasmusson?  Perhaps if I
20       bring up page 1, again.
21   A.  That looks like it.  I would probably have put -- well,
22       it's got Kilmarnock, 31st July.  I would probably have
23       put "FRC truth" or something at the bottom.  Maybe that
24       wasn't on this one.  That would be my normal practice in
25       a Fiscals' Office but I think perhaps my secretary had
page 137
 1       never worked in a Fiscals' Office so that wasn't there.
 2       But that looks very much like the statement that I
 3       prepared after interviewing Detective Superintendent
 4       Rasmusson.
 5   Q.  The minor detail that I want to look at is the third
 6       page of the document, if you could bring that up.
 7           You have mentioned in paragraph 14 of your
 8       statement -- you may want to have a look at
 9       paragraph 14 -- and it is at the foot of page 10, the
10       reference, you mentioned the circumstances in which you
11       yourself from Crown Office instructed a report from a
12       Malcolm Graham.
13   A.  Yes.
14   Q.  And you say that you recollect it was dated
15       23rd June 2000 and you will see that, in fact, in the
16       precognition there is a record here towards the foot of
17       the page to Mr Rasmusson being shown a report by Malcolm
18       Graham dated 23rd June 2000.
19   A.  Yes.
20   Q.  So that gives confirmation.
21           Now, you may not be able to help me.  I will show
22       you now -- and we will come back to the document we have
23       just been looking at -- CO2755.  This is a report on
24       fingerprints by Malcolm Graham which happens to have a
25       footer date, 23/06/00.  So 23rd June 2000.
page 138
 1           Have you seen this report, Mr Graham's report,
 2       really any time recently?
 3   A.  No.
 4   Q.  But if we're looking at a copy of a report by Mr Graham
 5       with a footer dated 23rd June 2000, that would tie in
 6       with your recollection of the date of the report?
 7   A.  Yes.
 8   Q.  That is fine, thank you.
 9           Then going back to your conversation with the Danish
10       experts, if we go back please to CO0022, taking matters
11       relatively shortly, do I understand that when you were
12       preparing this particular statement, unusually for you,
13       you were doing in the Kilmarnock Office, as you said,
14       you were trying to capture your thinking at that time on
15       one particular point.
16   A.  Yes.
17   Q.  What was that one particular point that you were trying
18       to capture your thinking on at that time?
19   A.  It was in relation to QI2, whether that could be --
20       whether the identification of Marion Ross' print could
21       be confirmed as being her print.  That was the main
22       thing I was interested in because, as you will see from
23       my statement, I had met the SCRO officers so I wasn't
24       involved in the inquiry into concerns about their
25       evidence, if I can put it that way, but when the second
page 139
 1       Frontline Scotland programme questioned a second
 2       fingerprint in the case, my principal involvement was to
 3       get that checked out by the Danish officers.  I think it
 4       had already been examined under the auspices of HMCIC,
 5       in his report, and so that was my principal involvement.
 6           With my hat on as being in overall charge of the
 7       appeals section and the David Asbury murder conviction
 8       was at the appeal stage, as much as the aftermath of the
 9       Shirley McKie trial.
10   Q.  Again, there are a number of points that spin off from
11       that.  If I just follow this through on a point of
12       detail.  You mentioned in your statement that the Danish
13       officers, Mr Rasmusson, and Mr Rokkjaer, gave you a
14       formal report later in August.
15   A.  Yes.
16   Q.  If I can bring up CO0030, they begin, as we see on the
17       first page there, with QI2.
18   A.  Yes.
19   Q.  That is the matter that impacted on you most of the
20       time?
21   A.  That's right.
22   Q.  If I take you on then, please, to the second page, do we
23       see on the second page for completeness that the
24       officers went through a number of other prints?
25   A.  Yes.
page 140
 1   Q.  Including XF, that's the Christmas gift tag, if I can
 2       tell you that?
 3   A.  Yes, that's right.
 4   Q.  And some others, particularly the one that interest me I
 5       want to ask you about is QD2.  Do you see QD2 --
 6   A.  Yes.
 7   Q.  -- on the list?
 8   A.  Yes.
 9   Q.  Now, were you at the time thinking of any other disputed
10       prints or was your focus really on QI2?
11   A.  My focus was on QI2 and, as I say, when I saw what was
12       it what they said about QF, the gift tag.
13   Q.  XF, I'm sorry.
14   A.  Sorry, XF -- I mean, that looked as clear as day to me
15       and even I could see that it looked to compare to David
16       Asbury's fingerprint.  But the others were smudged or on
17       bad surfaces or whatever and certainly I couldn't see
18       from a visual examination enough to be satisfied from my
19       own position.  I had to rely on their expertise.
20           But they did look at these other prints that arose
21       from the David Asbury case because we were really, I
22       suppose, looking at his conviction.
23   Q.  If you will bear with me, this is just a point of detail
24       that I wanted to just clarify with you in relation to
25       QD2.
page 141
 1   A.  Yes.
 2   Q.  If we could go back, please, to the full page, we see
 3       that the officers, Mr Rasmusson and Mr Rokkjaer, mention
 4       about a third of the way down that they were shown a
 5       file of photographs, production 98, including a number
 6       of prints including the second one on the list as QD2.
 7   A.  Yes.
 8   Q.  As you recollect, did you make arrangements to get the
 9       originals of the Crown productions for the officer to
10       study?
11   A.  That was my understanding, yes.  I mean, I knew enough
12       about fingerprints and so on for them to need the
13       original documents to make a proper examination.
14   Q.  If you will just bear with me, I will pass across to you
15       the original and bring it up on screen.  It is just that
16       QD2 has subsequently been disputed and there's some
17       question mark over it; so I just want to be entirely
18       clear as to what the officers were shown.
19           If I can bring up on screen, please, SG0010.  You
20       will have to assist us by looking at the original and
21       also looking on the screen.  First of all, what I passed
22       to you does it have a cover sheet marking it as
23       production 98 in the Asbury case among other things?
24   A.  Yes, it says "pro no 98 against David Asbury".
25   Q.  If you can lift up the cover sheet and if we move
page 142
 1       perhaps to page 2, does the original look as it is on
 2       the screen just now with four signatures and a book A.
 3   A.  Yes, that's fine.  "Scottish Criminal Record Office",
 4       it's got an A on it and various signatures and I
 5       recognise some of the names.
 6   Q.  What I want you to look at is a page that in manuscript
 7       is numbered 1.  With any luck, it might be page 3 on the
 8       computer.  Yes.  Page number 1 and now added to the
 9       document you have -- well, first of all, do you see the
10       photograph QD2 on that page?
11   A.  Yes, it's got the number 11 at the top right.
12   Q.  Added now to documents not on the screen is a blue
13       circle with a number 11.
14   A.  Yes.
15   Q.  Just to explain the mystery perhaps.
16   A.  Top right and you can see the on it.
17   Q.  So other than the fact that the blue circle with the
18       number 11 has been added, what you have in front of you
19       corresponds to what's on the screen?
20   A.  Yes.
21   Q.  So that everyone understands at least I can give
22       evidence the blue circle with the number 11 corresponds
23       to the negative of the particular photograph.
24           If I go on, what you have in front of you is that a
25       booklet that contains an original photograph or what
page 143
 1       would appear to be an original photograph?
 2   A.  It does appear to, yes.  It's a booklet that appears to
 3       contain an original photograph in that it's sellotaped
 4       into the book.
 5   Q.  Based on what you have said earlier, is that something
 6       you were aware fingerprints experts such as Mr Rasmusson
 7       and Mr Rokkjaer would require for them to carry out the
 8       examination that you wished them to carry out?
 9   A.  Yes.
10   Q.  And for good measure do we see on the same page that
11       there is a photographic original for the print XF?
12   A.  XF, yes.  It's top left, the first photograph that we
13       come to.
14   Q.  The next piece -- again, if you keep the original -- if
15       I bring up production AZ0039, this is a statement by
16       another of the experts, Mr Zeelenberg, to the Scottish
17       Parliament and if I go within that to page 6, we will
18       see that he is mentioning giving a description of the
19       position in relation to QD2 and if I ask you to look at
20       the fourth paragraph, he says:
21           "He did send me [and he is Mr Rokkjaer] the copies
22       of the material shown to them during their
23       investigation, see annex F, production number 98,
24       page 1.  This is a copy of the same production showed to
25       us by QC A Smith.  The Danish experts stated to me that
page 144
 1       to them is not shown any other material relevant to mark
 2       QD2 than this production."
 3           So that's their position.  They were shown something
 4       that Mr Zeelenberg has reproduced in annex F and I go to
 5       PDF page 26, do we see in the top left-hand corner now
 6       it's been properly orientated annex F on the screen.
 7       It's written in the top left-hand corner of the
 8       photograph, XF, on the screen just in orange going from
 9       top to bottom.  Just on the screen.
10   A.  Oh, yes.
11   Q.  So annex F is what Mr Zeelenberg understands
12       Mr Rasmusson and Mr Rokkjaer have seen and all I was
13       wanting to do was to ask you to compare what's on the
14       screen with the original booklet you have before you.
15   A.  I may say that "production number 98" looks like my
16       writing.
17   Q.  So, indeed, it does seem to be a copy that you gave to
18       them.
19   A.  Well, it looks similar.  Maybe you can give me a
20       clue what --
21   Q.  I'm just asking the question.  They look similar?
22   A.  Yes.  I don't know what the point is here, but my
23       distinct recollection is that the Danish officers looked
24       at the original items.  I do remember them looking at
25       the tin with a magnifying glasses and I'm pretty sure
page 145
 1       that they got the bank notes out and they looked at the
 2       actual things and they would use this book as a
 3       reference to get these identification numbers and then
 4       they looked at the exact things and, obviously, they
 5       couldn't make a comparison from looking at these
 6       photographs.
 7   Q.  So you recollect them as having looked at the bank
 8       notes?
 9   A.  They looked at the actual production.  They had to.
10   Q.  Did they also make any comparison using the photographs
11       that are before us now?  Do you recollect?
12   A.  Well, there's also another book made up for court
13       purposes with the 16 points or whatever and they looked
14       at that.  But my interest was getting permission for
15       them to see exact productions and look at the source
16       material and that's what they did and I was in the room
17       most of the time when they did that and I can remember
18       them using something like this or the document but
19       perhaps this book as a reference to find the areas where
20       the prints were said to be what they were and then they
21       looked at the actual articles and then gave their
22       opinion.
23   Q.  You say permission had been to be obtained.  Was that
24       because Mr Asbury's appeal was still pending and the
25       documents were under the control of the court?
page 146
 1   A.  That's correct, yes.
 2   Q.  The reason I explained, there has since been or possibly
 3       has been a retraction of the dispute in connection with
 4       the identification of QD2.  I was just wanting to
 5       understand, to cover the angle, what the officers had
 6       studied at the time.
 7   A.  Yes.
 8   Q.  Hence looking at the various sources.
 9   A.  Well, it is in my statement that, you know, while we
10       were able to produce an angle poise and it was a fairly
11       well-lit room, they were obviously not in laboratory
12       conditions that they would have been at home.  So to
13       that extent that may have tripped them up in relation to
14       one of the prints.  But, as I recall this, well, I
15       suppose it has some evidential significance but I didn't
16       it was as significant as the print on the tin.
17   Q.  So QD2 you didn't regard as being as significant?
18   A.  No.
19   MR MOYNIHAN:  Just in case, I'm not being suspicious of you,
20       just in case you walk off with the booklet, we will
21       collect it from you just now just in case you add it to
22       you family heirlooms.
23   THE CHAIRMAN:  We will rise for ten minutes now just to give
24       the stenographer a break.  Sorry to interrupt your
25       evidence but we will sit again just a couple of minutes
page 147
 1       after 3.00.
 2   (2.52 pm)
 3                         (A short break)
 4   (3.02 pm)
 5   MR MOYNIHAN:  It has just been drawn to my attention I
 6       should pick up something with you again about QD2.
 7       Could I begin by bringing back up, please, CO0030 and
 8       look at page 2.
 9           Under the heading "QD2" the officers refer to the
10       photograph of the bank note, the impression being
11       compared with an item which was taken from a sealed bag
12       marked label number 75.  No impression was seen on the
13       note and that may be because the print had been
14       developed with a substance ninhydrin which evaporates
15       with time and does not leave any traces.
16   A.  Yes.
17   Q.  So it may be when the officers looked at the note
18       there was nothing to be seen by them?
19   A.  Yes.
20   Q.  And, therefore, the examination such as they were able
21       to make it would depend on their examination of the
22       photograph in the circumstances you described?
23   A.  That's right.  I mean, that confirms my recollection
24       that they looked at the exact productions, first of all,
25       and then might have looked at the photographs.  I think,
page 148
 1       I've just refreshed my memory having looked at their
 2       report during the break, and there are a number of
 3       occasions when they say due to poor light or lack of
 4       facilities or something they weren't able to express or
 5       effect an opinion.  But I think that was a bank note
 6       that was in the tin in Mr Asbury's house and his
 7       position was that it was his money.  So whether or not
 8       his print was on it I don't think really advanced
 9       matters terribly much further.  So, you know, it was a
10       lesser print of interest.  There were a number of prints
11       that had been developed.  I think ultimately the case
12       seemed to fall down on about two or three and obviously
13       the Shirley McKie print, if I can call it that, was to
14       some extent a red herring but, you know, it was
15       obviously part of the equation by that stage.
16   Q.  Again, for that reason, if we are looking at any of the
17       Q prints the one you were primarily interested in was
18       QI2?
19   A.  That's correct.
20   Q.  If I look at the significance of QI2 from a slightly
21       different perspective, you mention in paragraphs 3 to 5
22       of your statement that you, along with Mr Murphy, then,
23       now Sheriff Murphy, had a meeting with SCRO people on
24       20th May 1999 to discuss, in a sense, the fall-out from
25       the McKie case.
page 149
 1   A.  Yes.
 2   Q.  We have the document and we can read the document and we
 3       can also read your statement but perhaps if we stand
 4       back from it just now, as of 20th May 1999 did you have
 5       any impression of any cause for concern of the wider
 6       implications of the McKie case, as it then stood, for
 7       fingerprint evidence in court?
 8   A.  Oh absolutely, yes.  I mean, as soon as the matter was
 9       raised with me by Sean Murphy I had concerns for the
10       wider picture and that was really, I suppose, part of my
11       job as Head of Casework, certainly for High Court
12       casework, to some extent throughout the service, that
13       more difficult cases would be referred to the Crown
14       Office and this was perhaps a procedural problem that
15       one had to be concerned about.
16           As I indicated, I hadn't been aware of the
17       prosecution until that time, but the newspaper headlines
18       and all the talk among practitioners in the immediate
19       aftermath of the case was that SCRO fingerprint evidence
20       had been met head on and then somebody had been found to
21       be wanting and there had been a unanimous acquittal and
22       many things were written about the state of fingerprint
23       evidence thereafter.  So of course it was a cause for
24       concern because fingerprint evidence was a staple diet
25       of some of our more difficult cases and seemed thus far
page 150
 1       to be a very good, quick and effective way of
 2       eliminating people from enquiries as well as focussing
 3       on suspects.
 4   Q.  As the meeting progressed and by the conclusion of the
 5       meeting on 20th May 1999, did you then have a concern
 6       about major implications for other cases arising out of
 7       the McKie case at that time?
 8   A.  Not particularly, no, because I think the SCRO officers
 9       reassured me to some extent with their professionalism,
10       they put their hands up to the fact that the court
11       productions highlighting the points of comparison had
12       perhaps not been of the best quality, particularly the
13       copies that had been made available for the jury, so
14       that what would happen is they would take the relevant
15       prints, blow them up and show the 16 points of
16       comparison against a blown-up copy of the fingerprint
17       from Ms McKie and that side of things seemed to have
18       gone a bit pear-shaped, that criticisms could be made
19       that certain of the lines pointing to points of
20       similarity just did not fall in the right place and also
21       Mr Murphy made it clear that he was not satisfied that
22       he had proved the integrity of the murder locus and
23       there may have been other reasons why the jury
24       acquitted.
25           But, in any event, after that meeting I was
page 151
 1       reassured that the SCRO officers were of good standard,
 2       they were able coherently to explain why fingerprint
 3       evidence might not have been preferred and I think
 4       various disparaging things were made about the American
 5       witnesses that I'd never heard of and thought, to some
 6       extent, may have been a bit of an ambush in court.
 7           So I think after that meeting I was fairly reassured
 8       and felt there was a basis to move on and, obviously, I
 9       think we had to be cautious now about fingerprint
10       evidence but it was out to the profession at large that
11       fingerprint evidence could perhaps be challenged but I
12       felt there was a fairly good story in how we could
13       respond to that in any future cases in the immediate
14       aftermath of the acquittal of Shirley McKie.
15   Q.  Did things change a year later when you were speaking to
16       the Danish experts with their reaction to QI2?
17   A.  Absolutely, yes.  In the interim, I'd seen Pat Wertheim
18       speaking on the BBC programme once, maybe two occasions,
19       I think about two programmes, and you know contrary to
20       the impressions that I had previously I thought he was
21       very articulate, he explained his position quite
22       reasonably, I could see how he would come over well in
23       court and there did seem to be some substance in what he
24       was saying.
25           But personally, I suppose my Road to Damascus moment
page 152
 1       came when I was in that room in Kilmarnock with the
 2       Danish experts who seemed to me very experienced people
 3       and I was there at first-hand to witness their surprise
 4       when they looked at QI2 and felt that there were points
 5       in the mark that rendered it such that they could not
 6       make a comparison with Marion Ross' prints.
 7   Q.  Just for the avoidance of any doubt, QI2 was one of the
 8       marks that you yourself could not have expressed any
 9       view on.
10   A.  No, absolutely not.
11   Q.  So you were entirely dependent on the feedback you got
12       from the Danish experts?
13   A.  Yes.
14   Q.  You described this as your Road to Damascus moment.
15   A.  Yes.
16   Q.  My reason for doing it in that way is if one looks at
17       documents emanating from Crown Office before that
18       turning point, might one get a completely different
19       picture of how the problem with the McKie case was being
20       perceived than one would get after the Danes had been
21       involved?
22   A.  That might well be so, yes.  Well, I think we had set in
23       motion or at least the Lord Advocate, the
24       Justice Minister had set in motion the various inquiries
25       by that time and by that stage Bill Gilchrist was in
page 153
 1       charge from the Fiscal's side of things in the case
 2       against the SCRO officers, whereas I was very much
 3       involved with Harry Bell in trying to restore the
 4       reputation of SCRO and getting fingerprint evidence back
 5       on track.
 6           But, you know, in the interim there had been two
 7       Frontline Scotland programmes and certainly by the time
 8       of the second one the HMCIC Inquiry and its conclusions
 9       that publicly there was an awful lot of disquiet and,
10       you know, things had to be put in motion in the sense of
11       going over past SCRO cases to check if there had been
12       any mis-identifications and then looking at outstanding
13       cases at trial to check them before we mounted any
14       prosecution in the court.
15   Q.  If my memory serves me correctly, the second of the BBC
16       Scotland programmes, Frontline Scotland, was in
17       February 2000.
18   A.  Yes.
19   Q.  What I want to look at are two letters, one of which
20       I've asked you to read during the adjournment.  For
21       others, it's DB0576.
22           I'm sorry, sir, this one has just not found its way
23       on to the system if I can pass you a copy of it.
24       (Handed)
25           If I can just orientate myself in time, this is
page 154
 1       really what I was trying to do, to sketch the change in
 2       position over time.
 3           Your meeting was on 20th May 1999.
 4   A.  Yes.
 5   Q.  This is a letter written by Mr McKie to the then
 6       Lord Advocate, Lord Hardie, on 9th June 1999.  So
 7       reasonably contemporaneous with your meeting and you
 8       have had a chance to read this document?
 9   A.  Yes, I have.
10   Q.  Others may have had as well.  Among the points that
11       Mr McKie was making, if I take you to page 2, halfway
12       down there's a bold paragraph.  He says:
13           "There was an apparent failure by the Scottish
14       Criminal Record Office to accept that their experts had
15       made a mis-identification and to put effective
16       procedures in place to independently double-check their
17       work.  As a result of this failure, the Crown relied on
18       flawed evidence that led to an innocent person being
19       arrested and tried and to the Crown fingerprint experts
20       presenting erroneous evidence in the High Court."
21           If I ask you to turn the page to page 3, it is the
22       first and last paragraphs I am interested in on page 3.
23       Mr McKie asks two things of the Lord Advocate.
24           Firstly, in the first paragraph he asks:
25           "Could you please confirm if the SCRO experts who
page 155
 1       wrongly identified my daughter's print are still acting
 2       as Crown experts."
 3           Then at the end the last paragraph he asks, in
 4       effect, for enquiries to be made.
 5   A.  Yes.
 6   Q.  Just freezing it now, knowing this is June 1999 and the
 7       experts were not suspended until August 2000, before we
 8       look at what the Lord Advocate said, could you explain
 9       from your involvement at the time why in 1999 no
10       decision had been made to suspend the officers yet in
11       2000, a year later, they were suspended?
12   A.  I've had a look at this letter.  I don't particularly
13       remember seeing this at the time.  I'm trying to
14       remember what the sequence of events was but after Sean
15       Murphy and I met the SCRO officers, I'm pretty sure I
16       put some sort of report through to the Crown Agent or a
17       Law Officer and I don't really remember an awful lot
18       happening in the immediate aftermath of the case
19       because, as I said, I was personally satisfied after the
20       SCRO meeting that it was a one-off.  They had been
21       ambushed, the court productions were not of good quality
22       and there were other aspects of the case that might have
23       led to the jury's acquittal.
24           So I was fairly sanguine about that and also,
25       despite all the gossip and bravado from the defence
page 156
 1       side, there were no other cases coming out of the
 2       woodwork.  Maybe it's something that they are all
 3       looking for but no other case like this came along in
 4       the weeks afterwards.  So I think really by this time,
 5       in a sense, there was a bit of a lull.  Yes, there was a
 6       lot of publicity going on but I think, having made
 7       initial inquiries into matters, I was reasonably
 8       satisfied there were reasons why the jury had acquitted
 9       Ms McKie.
10   Q.  Again, you used the phrase the Damascus moment.  It
11       would be after you saw the reaction of the Danish
12       experts that for you the case came out of that lull?
13   A.  Yes, because I think at that stage we had two disputed
14       identifications in the one case.  I'd never had a case
15       where one print was disputed but to have two marks
16       disputed I was really very concerned.
17   Q.  If I then put to you just for your comment and it is a
18       letter that comes from the Lord Advocate's Private
19       Office in that period of lull.  It's a response to
20       Mr McKie's letter of 9th June.
21           This one is on the system, DB0582 and there will be
22       two pages to this.
23           Just take your time to read that particular letter.
24       It is, in fact, the underlined paragraphs on the second
25       page I'm primarily interested in.  (Pause)
page 157
 1   A.  Yes, thank you.
 2   Q.  Do you have any recollection yourself of being involved
 3       with this particular letter?
 4   A.  No.  That's written by Andy Miller who was in the Policy
 5       Group and it may well have been that Mr McKie's letter
 6       and this response was entirely dealt with in and around
 7       the Lord Advocate's Private Office based on perhaps the
 8       report I had submitted to them and it was dealt with in
 9       that way rather than a situation where the Private
10       Office might have received a letter like this and sent
11       it to me to provide the first draft.
12           But it rather looks as though it had been dealt with
13       by the Lord Advocate's Private Office and Policy Group,
14       the Crown Office legal officials who supported that
15       section of the office.
16   Q.  In light of your own involvement in the May meeting and
17       the lull you have described, does it come as any
18       surprise to you in July 1999 the Lord Advocate was
19       writing, in effect, there's nothing he proposes to do in
20       relation to the Fingerprint Officers?
21   A.  No.  No, that didn't surprise me.  That doesn't surprise
22       me, no.
23   Q.  However, things did, as we say, change one year later.
24   A.  Yes.  I think it was at a much later stage in and around
25       the statement to Parliament that I then saw Mr McKie's
page 158
 1       letter and, I mean, I recognise the style about him
 2       underlining and highlighting points and so I do remember
 3       seeing letters like that, but I don't remember seeing
 4       this particular one at the time.  I was quite intrigued
 5       at a later stage to read them all.  So there had been a
 6       time perhaps he was also writing to the
 7       Justice Minister, so I wouldn't have seen these letters
 8       anyway but I had a feeling that around about the time of
 9       the statement to Parliament I then saw a number of
10       letters and they obviously confirmed and went into more
11       detail indeed about the points that Mr McKie had made
12       publicly.
13   Q.  What I want to do is then -- and I will be relatively
14       brief because it is adequately covered in your statement
15       but I just want you to explain in public one particular
16       part of this.
17           Plainly, we have seen in August 2000 a decision is
18       taken to suspend four officers, the four officers who
19       signed the reports.
20   A.  Yes.
21   Q.  You have explained that by then you understood two of
22       the prints now to be disputed.
23   A.  Yes.
24   Q.  Can you just again repeat for us, please, your
25       understanding -- not that I'm suggesting you were
page 159
 1       personally involved in their suspension, but your
 2       understanding of the ability of these four officers to
 3       have given evidence in court, from your perspective, in
 4       light of the controversy as it then stood by
 5       August 2000?
 6   A.  Well, I think that was very difficult by that stage,
 7       that the second Frontline Scotland programme had
 8       highlighted doubts about another print in the case and
 9       then after several months, perhaps as long as about six,
10       the Crown Office actually had in its possession a
11       contrary report from another expert and I think up until
12       that stage the Crown had been supportive of SCRO because
13       during that period in the run-up to August I think
14       Mr Wertheim and co had put certainly the other print,
15       the Y7, that had been put on the Internet and there was
16       an invitation for every expert under the sun to, sort
17       of, log in and see whether it was an identification or
18       not.  Many people said that it was a mis-identification
19       but of course they were looking not at original
20       productions.
21           So I think we had good reason or coherent reasons
22       for really fobbing off some of that or being satisfied
23       that our work could carry on and, indeed, no other case
24       emerged at that time which caused any doubt.  So I
25       suppose we were looking at, at that stage, one print and
page 160
 1       one case and maybe it was a ponderable, difficult to
 2       understand, but you know, as I explained, there seemed
 3       to be good reasons why the jury had acquitted Shirley
 4       McKie's and no good reasons to turn everything upside
 5       down.
 6           So to that extent things carried on, although there
 7       was a very effective campaign and various other steps
 8       were taken.  But by the time I reported about the second
 9       print, and that seemed to undermine David Asbury's
10       conviction with the result that he was granted bail
11       shortly afterwards, that had reached a stage that it
12       would be very difficult, I think, for the Crown to
13       proffer those SCRO officers in a case, particularly
14       where it would be a case that turned on fingerprint
15       evidence alone.
16   Q.  I appreciate that you left Crown Office shortly after
17       the August 2000 suspensions to take up your current
18       position as Sheriff.
19   A.  Yes.
20   Q.  Therefore, a lot of time passed thereafter.  In the
21       period while you were Deputy Crown Agent, your personal
22       view about the ability of the Crown to have used these
23       four officers again as witnesses, what view did you
24       have?
25   A.  I think as events progressed and, you know, my last act
page 161
 1       really as Deputy Crown Agent was to receive Bill
 2       Gilchrist's report and pass that to the Lord Advocate
 3       and, you know, I had always been fairly doubtful about a
 4       basis for prosecuting the SCRO officers, but my view was
 5       that while it was not appropriate to prosecute them I
 6       felt that the whole circumstances had become so
 7       notorious that we couldn't jeopardise any future cases,
 8       which might well be High Court ones, by calling them as
 9       witnesses because they would inevitably have raised in
10       the cross-examination that they had been involved in a
11       case where an identification had been challenged and I
12       think, inevitably, the court would allow some
13       questioning along that line and it would make a very
14       unfortunate sideshow in a prosecution.
15           It may not seem very fair to the SCRO officers, but
16       in a criminal trial it's about being fair to the accused
17       and fair to the public and, as a prosecutor, I would
18       always try to nail down as many of the things that could
19       be nailed down so that you took the case to trial and
20       fight on the issues that were in dispute and you didn't
21       want to have anything that weakened or perilled your
22       case if you could avoid that and I think that would
23       be -- obviously, you had to be fair.  If you had
24       evidence that didn't particularly suit the prosecution
25       line, that had to be disclosed and maybe weaknesses you
page 162
 1       would have to tackle but you wouldn't personally want to
 2       weaken your case by doing something tactically that you
 3       didn't have to do.
 4   Q.  In a sense, if I can put it this way, you acknowledge
 5       that this may have been unfair to the officers in
 6       question but there is -- if I can put for comment -- a
 7       conflict between what you thought appropriate as a
 8       prosecution authority to present the best case and being
 9       fair to these four, there was a conflict between those,
10       was there?
11   A.  Yes, yes.
12           So, I mean, it's no surprise to me that employment
13       lawyers took a view and industrial tribunal took a view
14       but, as a prosecutor, your criteria are totally
15       different.  It may be very unfair to the individuals but
16       I'd also had personal experience where we had proffered,
17       in a completely different context, a Crown witness who
18       had been the subject of dispute in a public inquiry and
19       that was cast up to this lady, I think the public
20       inquiry had never questioned her honesty but the
21       conclusions had been that, as an expert witness, she
22       held a view that was not scientifically possible or
23       proper to hold and, you know, when we used this witness
24       subsequently the defence crossed her on this line and
25       the accused was acquitted.  So I had previous experience
page 163
 1       of matters in this context.
 2   Q.  So if I put it again in the terms I have of the
 3       conflict, you are indicating that an employment tribunal
 4       or employment lawyer might try to balance these two
 5       conflicting considerations, strike a balance; you as a
 6       prosecutor weren't balancing, you were giving precedence
 7       to your responsibilities as a prosecutor?
 8   A.  Yes, and I did have a conversation at some point with
 9       Harry Bell at SCRO where I said, "Well, you know, you've
10       got your advice, you'll have to do what you have to do",
11       but my position would have to be that I couldn't see any
12       of them giving evidence for the Crown again.  They might
13       have to be deployed in some other capacity but not as
14       front line witnesses signing reports and thereby being
15       open to being called either by the prosecution or
16       defence to give evidence in a criminal trial.
17   Q.  If I can move on just continuing this conversation but
18       from a different angle, moving on to the question of
19       statutory authorisation under the Criminal Procedure
20       (Scotland) Act.
21           First of all, we have found on a recurring basis, in
22       fact, on contemporaneous documents and, indeed, in
23       witness statements that people who should know better
24       nonetheless speak of the "Crown Office list of expert
25       witnesses".  It seems that the authorisation process
page 164
 1       under the 1995 Act as the responsibility of the then
 2       Scottish Executive, now the Scottish Government, was
 3       poorly understood.
 4           Would that be a fair comment?
 5   A.  That would be right, yes.  Really the Crown had
 6       arrangements in place for forensic pathologists but in
 7       other contexts for forensic scientists there was a
 8       procedure which I didn't fully understand but
 9       application or letters were sent in to the
10       Justice Department or Scottish Office, whatever it was,
11       and then they certified that somebody was an authorised
12       analyst or authorised forensic scientist and that was
13       it.
14           Once we had these names -- and we regularly got
15       official letters to say that so and so was now an
16       authorised analyst or authorised forensic scientist --
17       that was fine for us.  We could then, where there was a
18       report involving two or more persons, say that only one
19       would be called unless the defence required
20       corroboration or, in summary trials, the report could be
21       introduced into evidence and would be sufficient
22       evidence of the matters to which it related unless the
23       defence particularly challenged and wished one or both
24       of these witnesses to give evidence.
25           So people were, and still are, in a very privileged
page 165
 1       position in the criminal justice system in Scotland
 2       under the Criminal Procedure legislation and there
 3       didn't seem to be any great checking of abilities
 4       underlying that, but really all that was left, I
 5       suppose, was the accusatorial nature of proceedings so
 6       if someone -- and I can't remember that -- if somebody
 7       was totally not up to the job and were exposed in court,
 8       then I suppose in that way they might be weeded out but
 9       I don't believe I recollect that happening.
10   Q.  You used the term -- and I will give you a chance to
11       expand on it if you wish -- if I were approaching the
12       procedure under the 1995 Act, authorisation by Scottish
13       Ministers --
14   A.  Yes.
15   Q.  -- as an independent verification of the qualities and
16       competence of these forensic scientists who were to be
17       witnesses you use the rather strong term it wasn't worth
18       the paper it was written on?
19   A.  In a sense I felt I didn't know the intricacies of the
20       procedure but I remember speaking to someone in the
21       Department about it, someone in Saint Andrew's House and
22       I think at various stages maybe a lab would write in and
23       say that somebody had been there for two or three years
24       and could he now be authorised and that was it and I
25       don't -- there certainly wasn't any MOT or subsequent
page 166
 1       checks as to their expertise.  Once they were in, that
 2       was it until they left their job or unless something
 3       went wrong at work.
 4   Q.  Following on from that, for a period of time -- and your
 5       statement was written just about the time of the
 6       demise -- there was an independent Institution of
 7       Council of Registered Forensic Practitioners?
 8   A.  Yes.
 9   Q.  Was that for a period of time looked upon by public
10       authorities in Scotland as the means of injecting an
11       independent verification element into this process?
12   A.  Yes, yes.  For a while I was Director of Judicial
13       Studies so that in the period after the formation of the
14       Register for Forensic Scientists I invited the Secretary
15       to come up and speak about this to my colleagues because
16       I felt it was an important development and would give my
17       colleagues and the court some confidence in the vires of
18       those who were appearing in the court as expert
19       witnesses.  Our law as developed is that in England and,
20       yes, I'd also found that in Scottish criminal trials it
21       was perhaps very rare for the defence to attack the
22       credibility of one of these expert witnesses; whereas I
23       think in civil procedure, perhaps with greater resources
24       and more time, that's something that might more
25       regularly be done.
page 167
 1   Q.  You have been clear in relation to the meeting of
 2       20th May the officers who were present were able to
 3       explain themselves to your satisfaction at that time.
 4   A.  Yes.
 5   Q.  You have nonetheless spoken of your many years' of
 6       experience and your feeling that some officers,
 7       Fingerprint Officers, were not up to the mark, if I can
 8       use that pun.  Now that we all know the Council has
 9       bitten the dust for a variety of reasons, based on your
10       long experience of Fingerprint Officers, is there, do
11       you feel, a need now to consider proper independent
12       verification of their qualifications, experience and,
13       indeed, their contribution in court?
14   A.  I think that there still is a need for that.  I mean, as
15       I worked with Harry Bell, I was always satisfied that
16       office conditions had improved and also procedures were
17       improved in the light of events and that there was more
18       blind testing, training and other systems in place so as
19       to check.
20           I mean, in a way another parallel would be
21       histologists looking at breast cancer scans that, you
22       know, I am sure if you look at these day after day it's
23       very hard on the eyes, very exhausting and tiring but if
24       a mistake is made it can have terrific repercussions
25       and, you know, human beings do make mistakes from time
page 168
 1       to time and so I think it would be important when
 2       somebody's working at a high level to have systems in
 3       place to regularly check the suitability of witnesses.
 4           Certainly, I've noticed in other contexts that
 5       pathologists, for example, people who have been giving
 6       evidence at a high level for many years eventually for
 7       most of them there comes a time when they seem to shade
 8       off in their capabilities.  So I think for these reasons
 9       there has to be something in place, more than simply
10       in-house checking, to satisfy the wider public and the
11       profession that standards are being maintained and then
12       the individual officers themselves can speak to their
13       qualifications and the procedures they go through to
14       ensure that their evidence is of the standard required
15       and that one can perhaps depend upon.
16   MR MOYNIHAN:  I have no further questions, thank you.
17   THE CHAIRMAN:  I will ask Mr Smith first.
18   MR SMITH:  Yes, Sir, there are some questions I would like
19       to put to Sheriff Crowe and these relate to the
20       following matters: the first is some further questions
21       regarding the aftermath to the acquittal of Shirley
22       McKie; the second is the overall impression that Sheriff
23       Crowe had regarding the competency of SCRO at various
24       times with various matters arising; the third relates to
25       the working relationship between Sheriff Crowe and
page 169
 1       Mr Harry Bell and what discussions took place with him
 2       regarding matters that we've heard about; the fourth is
 3       questions relating Mr Malcolm Graham's reports or report
 4       that was referred to by Mr Moynihan.
 5   THE CHAIRMAN:  Yes.
 6   MR SMITH:  And I think that is all of the areas I would like
 7       to ask about.
 8   THE CHAIRMAN:  Yes.
 9                    Cross-examined by MR SMITH
10   Q.  Sheriff Crowe, I wonder if I can ask a few additional
11       questions relating to the reaction, if I put it this
12       way, not just your reaction but generally the reaction
13       of the Crown Office following the acquittal of Shirley
14       McKie.
15           You explained very clearly that obviously there was
16       some concern as to the result, if I can put it that way.
17   A.  Yes.
18   Q.  Can I say this: you have made reference already to an
19       understanding of something, if I can put it this way, of
20       an ambush regarding some testimony from the American
21       individuals.
22   A.  Yes.
23   Q.  And you have been a Sheriff for quite some time now, I
24       think.
25           I'd like to ask you this: suppose that someone was
page 170
 1       to turn up in your court on a solemn matter, the
 2       Procurator Fiscal was to say, "I have been presented
 3       with a report that goes to the heart of this case, a
 4       defence report that I haven't seen yet.  I don't have
 5       time to consider it.  I would like the trial to go off
 6       in order I can fully investigate it", I take it you
 7       would agree you would be pretty hard pushed to refuse
 8       that request?
 9   A.  Absolutely.
10   Q.  Sorry?
11   A.  Absolutely not, no.  That would seem to be a reasonable
12       request to make and, as you know, there are time limits
13       about the production of evidence.  There's often late
14       evidence lodged by the Crown and there are titles about
15       that and similarly defence evidence ought to be lodged
16       in documentary form, if it's that type of evidence, at
17       some time in advance of the trial.
18           So if the Fiscal stood up and said that morning
19       there were productions and the defence were moving those
20       and the Crown felt they need more time, then obviously
21       in the interests of justice I would grant such time as
22       was required.
23   Q.  I'm just thinking of if the position is -- and we have
24       heard some evidence about this -- that the defence
25       report was only made available or reports perhaps were
page 171
 1       made available to the Crown just a very few days before
 2       the trial was due to start in Shirley McKie's case I
 3       take it it would be a matter for decision by the
 4       Advocate Depute, no doubt --
 5   A.  Yes.
 6   Q.  -- but it's something that would be open to him to
 7       move --
 8   A.  It would be.  I can't speak authoritatively as to what
 9       time these documents were lodged but it was one of the
10       matters that came up in the meeting that we had that the
11       SCRO officers had very little inkling of what was to
12       face them and that may well have been so and I think one
13       of their criticisms, which didn't seem unrealistic, was
14       that had they had a bit more time, had they understood
15       what was coming, then they might have been better
16       equipped to answer the questions.
17   Q.  I think, in fact, we heard some evidence there's some
18       evidence available that they had an afternoon available
19       to sit down with, I think, the Advocate Depute, if I
20       remember correctly to go through the defence production
21       and discuss it with him to see what they could come up
22       with and give some guidance as appropriate.
23           I take it that would certainly be a first step and
24       would allow the Depute and the SCRO witnesses say,
25       "Listen, this is not good enough.  We can't do this in a
page 172
 1       couple of hours or whatever", there would be an
 2       opportunity if anybody felt disadvantaged at that stage
 3       to say, "Cut our losses and move for an adjournment, we
 4       can't deal with this", would you agree with that?
 5   A.  Yes, in a situation like that, if it were presented to
 6       me as Sheriff I would give some time, perhaps a day or
 7       so.  Obviously, it's more difficult once the trial's
 8       ongoing because, as you know, you're really meant to
 9       adjourn from day-to-day if you possibly can and the only
10       other alternative would be to desert pro loco et
11       tempore, which would not be something you would
12       regularly want to do unless there was a good reason.
13   Q.  I think also Sheriff Murphy in his statement -- give me
14       just one moment -- to the Mackay Robertson Inquiry gave
15       some indication, in fact, if we call that up it's CO2036
16       please.  And page 2 of this statement and down towards
17       the bottom of the page, just the last, the third last
18       paragraph, we can see:
19           "They [which is the SCRO officers] also told me that
20       they would go away and examine the defence productions
21       more closely and report back with anything further of
22       relevance.  I can't recall exactly but arrangements were
23       made for them to have access to the defence
24       productions."
25           Now, I take it you agree with me that there appears
page 173
 1       to be some opportunity being given for SCRO officers to
 2       look at that.  Were you aware at all that there was
 3       something like that rather than an absolute ambush --
 4   A.  No, I wasn't.  I mean, inevitably these things happen in
 5       a very short space of time and it may well have been
 6       that given that the witnesses were coming from abroad
 7       the timescale was truncated.  But I do remember that as
 8       a criticism that was raised at the meeting that -- maybe
 9       they had never been challenged so systematically before
10       and so vigorously and, you know, certainly my impression
11       from the meeting was that they didn't regard the
12       American experts as being altogether straight.
13           So maybe when they saw this stuff coming in they
14       maybe thought they could deal with it but I think as
15       they found out they were challenged very vigorously and
16       obviously the performance put on by the defence experts
17       was, I think, impressive, must have impressed the jury
18       to some extent.
19   Q.  You were clearly under the impression it was being
20       conveyed to you after the trial of Shirley McKie that
21       that was an ambush that happened?
22   A.  That was an ambush of it, yes.
23   Q.  Your impression from whoever used that phrase, your
24       impression from the meeting was the defence productions
25       and defence witnesses almost came from nowhere without
page 174
 1       any chance to marshal an opposition, an explanation of
 2       some kind; is that fair?
 3   A.  I think limited time.  I don't remember the details of
 4       it but the criticism, it was from one of the senior male
 5       officers, he said that they really had very little time
 6       to meet the challenges that were made and he argued for
 7       more time and better preparation in the future.
 8   Q.  Now, the question of the American witnesses, I think you
 9       indicated a few moments ago something to the effect they
10       felt they weren't being straight, the American experts.
11           Can I take it that was communicated to you as an
12       impression post trial of Shirley McKie?
13   A.  Yes.
14   Q.  What was it about their evidence or their productions or
15       both that you understood the SCRO maintained wasn't
16       being straight by the American experts?
17   A.  Too much about their -- well, I think they did say that
18       their productions were very glossy and it was rather
19       like the British stuff was black and white and the
20       American stuff was technicolour.
21           There were also different methodologies deployed and
22       I could well understand where the jury are presented
23       with different conclusions based on different
24       methodologies that it would be very difficult to choose
25       one beyond reasonable doubt, ie the SCRO one.
page 175
 1           I think also there were some aspersions cast about
 2       their experience.  I mean America has something like
 3       2,500 police forces and contrary to what we see on the
 4       television it's a much more fragmented criminal justice
 5       system than you imagine.  Obviously, there's the FBI but
 6       I think it was also suggested that the American experts
 7       were more academics, they'd written books about it
 8       rather than got their hands dirty doing thousands of
 9       identifications.
10   Q.  I am interested in the phrase about not being straight.
11       I think you've indicated their presentational methods
12       were much more glossy and --
13   A.  Yes and there was just a suggestion that they were a bit
14       smarmy.  I can't remember if "snake oil salesmen" was
15       used but that was the short of impression that I got,
16       they were a bit smooth and slick and the SCRO officers
17       had been kind of caught on the hop and there was a
18       problem with the productions and that was how the jury
19       did not accept their evidence.
20   Q.  I take it there was no suggestion being made of absolute
21       dishonesty by the Americans?
22   A.  No.
23   Q.  It was just a difference in culture, perhaps, that was
24       being pointed to in a somewhat disparaging sense; is
25       that fair --
page 176
 1   A.  That's right.  I mean, remember this was a private
 2       meeting and I suppose we all felt we were all on the
 3       same side at that meeting and I think we were looking
 4       for ways forward and trying to understand what had gone
 5       wrong and I think me, personally, was trying to make
 6       sure we didn't have what seemed to be a highly public
 7       reversal like this again in the future.
 8   Q.  I take it that the question of the actual experience and
 9       qualifications of the Americans that had been raised
10       would be something that you would like to be
11       investigated; is that fair?
12   A.  Yes.
13   Q.  Because if the Americans that had come across actually
14       were not properly experts, then that actually would have
15       been quite an easy response to make publicly, wouldn't
16       it?
17   A.  Yes.
18   Q.  Was any step taken to establish officially or as much
19       officially as possible what their qualifications were of
20       Mr Wertheim and Mr Grieve?
21   A.  I think there were some enquires done in that context --
22       not by mine me personally but I think perhaps by SCRO.
23   Q.  Was there any communication back to you as to what the
24       results of these enquiries were?
25   A.  I think -- I'm sure I did see something.  I think they
page 177
 1       looked up journals.  You know, there are things like
 2       registers of expert witnesses.  I think they looked at
 3       something like that.
 4   Q.  But there wasn't any, as it were, official approach made
 5       by Crown Office really to the American agencies to find
 6       out what the position was?
 7   A.  No, not to my knowledge.  I certainly didn't do that.
 8   Q.  I think you indicated that in the immediate aftermath
 9       where obviously you would be trying to think through as
10       best you could what the basis for the jury's decision of
11       a unanimous acquittal actually was.
12   A.  Yes.
13   Q.  There would be one, I suppose, obvious point which was
14       that they did not accept the SCRO evidence at all that
15       it was Shirley McKie's fingerprint.  That's the obvious
16       result, but I think you also mentioned something to the
17       effect there was some problem with the officers
18       regarding the log and the access to the locus that
19       didn't come out as really was presented or
20       expected by --
21   A.  I can't remember the details but the point Sean Murphy
22       made was that he did not feel he had been able
23       necessarily to satisfy the jury about the integrity of
24       the locus.  So he felt that perhaps in some way maybe
25       the jury had come to the conclusion of, well, maybe
page 178
 1       somehow or another Ms McKie got into the premises and
 2       left her print and that's a reasonable explanation.  I
 3       don't know.  We don't know how the jury worked, but Sean
 4       Murphy said that there were other evidential
 5       difficulties, including fingerprints, and the only one I
 6       can recollect him mentioning was the integrity of the
 7       locus, or lack of, at the scene.
 8   Q.  And no doubt in the aftermath of the acquittal you would
 9       be thinking about these other potential murky areas, if
10       I put it that way, things the jury might have been
11       concerned about in the overall presentation of the case;
12       is that right?
13   A.  No, I was concerned about -- in my position I was
14       concerned about the future of fingerprint evidence,
15       that, you know, there had been a trial, Ms McKie had
16       been acquitted and, you know, that was it as far as I
17       was concerned and I was interested in moving on and
18       trying to be sure that we still had the weapon of
19       fingerprint evidence in our armoury to bring cases to
20       justice.
21   Q.  There were a few items in your written statement to the
22       Inquiry I would like to ask you about.  We have covered
23       a number of the areas that I was going to ask about.
24       Perhaps we can maybe have these up on the screens and
25       the statement is FI 0048.  I am looking for numbered
page 179
 1       paragraph 6, please.
 2   A.  Yes.
 3   Q.  I will just find the passage if you give me one moment.
 4       Can I ask you to go to the next page, please, and just
 5       flick through this.
 6           Now, the first passage I would like to ask you
 7       about, just reading from the top of the page, and I
 8       think I don't need to go back to it but you can perhaps
 9       confirm this is under the heading of "The facts of the
10       case against Ms McKie".  That's the heading you get to.
11       Can you just confirm that?
12   A.  Yes, that's right.
13   Q.  We get to the top of page 5 and just go from there:
14           "The suggestion was if DC McKie had admitted to
15       having left the mark Y7 she would have been reduced back
16       to uniform ranks and would have been caught between a
17       rock and a hard place, the prospect of her career going
18       backwards and the prospect of disappointing her father,
19       who had been a distinguished police officer himself."
20           Can I ask as far as that part of between a rock and
21       a hard place and disappointing various people, where was
22       it that that matter of fact was gleaned from?  Where did
23       you obtain that information?
24   A.  I think that was gleaned through police sources and I
25       think it was perhaps their way of trying to articulate
page 180
 1       this imponderable, that they felt that Ms McKie's mark
 2       had been identified within the locus, she vehemently
 3       denied that and there seemed to be no particular reason
 4       for doing that other than I think there was some
 5       suggestion that maybe she'd done something like that
 6       before.
 7           My recollection was that she was an Acting Detective
 8       Constable at the time -- I may be wrong in that -- but
 9       she certainly had been fairly new in the ranks and I
10       think, you know, subsequently as matters went on -- I
11       mean, I was around for a while but I don't remember
12       coming across Mr McKie myself in my work as a Fiscal.  I
13       was in Glasgow in the '70s, but I recognised him from
14       the way he presented himself as being a thoroughly
15       competent officer and, you know, I also got the
16       impression that there were some other officers of that
17       vintage that perhaps didn't get along with him.
18           Also I think in my experience it's very difficult to
19       follow in your father's line of work.
20   Q.  Can I ask --
21   A.  I think people -- in my experience, people judge the
22       children who go into the same line of work very harshly.
23       My grandfather and father were police officers and my
24       grandfather was in Lanarkshire Constabulary and he said
25       to my father, "Well, if you want to be a policeman, then
page 181
 1       for goodness sake go to another force at the other side
 2       of the country" and that's what he did.
 3           But I think, notwithstanding that, there were always
 4       people who said to my father, you know, "We remember
 5       your Dad" and it also happened to me although I didn't
 6       ever want to become a police officer, people remember my
 7       father and would often say to me, you know, "You're not
 8       a patch on your father".  It was a joke but, you know,
 9       you always feel that.  So I rather got -- that was the
10       sort of impression I had.
11           I was trying to rationalise in my mind various ways
12       how we had come to this impasse.
13   Q.  So I take it that it was really just your impression --
14   A.  Yes --
15   Q.  -- rather than actually any information that had been
16       provided to you; is that right?
17           I am sorry, if I can go back a little, there is a
18       passage that has been drawn to my attention I would like
19       to ask you about on the previous page.  You see down
20       towards the bottom, the fifth last line.  The line
21       begins "at that time" and then it goes on:
22           "It has been suggested at the Asbury trial that she
23       had required to visit the toilet when working in the
24       Irvine Road area at a time when the murder locus was
25       being guarded and forensically examined and had left a
page 182
 1       fingerprint on a door surround Y7 at bathroom door in
 2       Miss Ross' house."
 3           Again, whether that was said in the Asbury trial or
 4       not, did you have any access to the Asbury
 5       trial papers --
 6   A.  No, I had no access to the Asbury trial, but I do
 7       recollect that as being advanced for a reason around
 8       this time that -- well, what I did know was that Shirley
 9       McKie had been called by the defence at David Asbury's
10       trial.  At no stage did I ever or have I ever seen a
11       transcript for that trial, but I was aware of the
12       position of the mark in the house and once again it was
13       perhaps a reasonable explanation for how it might have
14       got there if it were indeed her print.
15   MR SMITH:  Sir, I see the time.  I am happy to carry on.
16   THE CHAIRMAN:  I am anxious about bringing the Sheriff back
17       again.  I don't know how you are fixed tomorrow.
18   A.  I have a court commitment which I can easily change.
19   THE CHAIRMAN:  Perhaps if I could get some indication.
20       Could I ask now how many Core Participants will want to
21       question this witness or to get leave to?  What about
22       you, Mr Holmes.
23   MR HOLMES:  I intend to make an application.
24   THE CHAIRMAN:  You will have an application?
25   MR HOLMES:  Yes.
page 183
 1   MR MACPHERSON:  I don't anticipate making one.
 2   MISS GRAHAME:  I don't anticipate to make an application at
 3       this stage.
 4   THE CHAIRMAN:  Can you give an indication of how long, if
 5       you were granted leave, you might be?
 6   MR HOLMES:  As things presently stand I estimate no more
 7       than about 15 minutes, sir.
 8   THE CHAIRMAN:  And how much longer do you think you have,
 9       Mr Smith?
10   MR SMITH:  I would think it would be at least 15/20 minutes.
11   THE CHAIRMAN:  I think we have had a fairly long day.  Would
12       it be convenient or not too inconvenient --
13   A.  Yes, I can easily make arrangements, you know, some time
14       in the next half-hour or whatever about tomorrow and
15       then I can be here for as long as you wish tomorrow.
16   THE CHAIRMAN:  I reckon if we start at 10.00 and we continue
17       immediately and they are not going to be allowed to keep
18       you more than three-quarters of an hour; so by 11.00 you
19       will be free.  Thank you very much.
20           So 10.00 tomorrow.
21   (4.10 pm)
22        (Adjourned until 10.00 am the following morning)
23
24
25