page 1 1 Friday, 3rd July 2009 2 (10.00 am) 3 THE CHAIRMAN: Thank you for making more time for us, as I 4 said, yesterday. 5 SHERIFF FRANK RICHARD CROWE (continued) 6 Cross-examined by MR SMITH (continued) 7 Q. Thank you, sir. 8 Good morning, Sheriff Crowe. I wonder if I can ask 9 you just a few more questions. 10 The first matter I would like to ask you about is 11 this: just to confirm you had a fairly close 12 professional relationship with Harry Bell; is that fair? 13 A. Yes. 14 Q. Did this predate the McKie trial? 15 A. Not particularly, no. I don't really recollect coming 16 across Harry too often. I think I probably knew him 17 from meetings. Having been in the Crown Office may be 18 attending ACPOS meetings, I perhaps knew him through 19 that so I think prior to this case I did know Harry and 20 I think at some point I had been through and seen the 21 old office set up, but really with this project that was 22 when we worked more closely together but I think I must 23 have known him for a year or two before that. 24 Q. I take it we agree though that from your conversation 25 with Sean Murphy it is plain that the question of page 2 1 fingerprint identification was the single most important 2 question in the Shirley McKie trial; that's right, isn't 3 it? 4 A. Absolutely, yes, because the big cases that I'd had 5 involving fingerprints prior to that were really about 6 whether the finger-marks were eloquent of the crime 7 being committed by the suspect. So there was really no 8 dispute about who had left the marks. So that in a case 9 like Langhan, a murder case in 1989, and in Deezely, a 10 case involving (inaudible) documents, it was all about 11 positions of the fingerprints at the scene of the crime 12 on documents and whether those marks could in some way 13 be said to be eloquent of the crime and not just 14 somebody accidentally handling an item. 15 So that was really where my main experience of 16 fingerprints had been previously and not in a case like 17 this where there really had been a head-on confrontation 18 between experts about whether a print could be 19 attributed to a person or not. 20 Q. Of course in the immediate aftermath there was 21 considerable public concern expressed particularly in 22 the media; is that right? 23 A. Yes. 24 Q. The media and the public latched on to the point, that 25 this was the first, really, in living memory, as far as page 3 1 anyone could gather, that there had been what appeared 2 to be a successful challenge to evidence that had 3 hitherto been unchallenged and more or less 4 uncontradicted? 5 A. That's right. 6 Q. I am sure you understand that we saw the correspondence 7 from Mr McKie shortly after the trial when he was asking 8 the Crown Office if it was correct that the experts 9 involved in the Shirley McKie trial were continuing to 10 provide expert testimony as potential expert witnesses? 11 A. You see, I don't recollect seeing that letter at the 12 time. 13 Q. Well, I understand that but -- 14 A. I'm -- you know, had I been given that letter I would 15 have drafted the reply and I think the reply would have 16 gone out in my name but that letter, while I think about 17 it, that letter obviously went to the Lord Advocate's 18 Private Office and it remained there and was dealt with 19 by an official in that section. 20 Now, they may have spoken to me or picked up on a 21 report that I had made after the meeting that I had on 22 20th May, but I do not recollect seeing Mr McKie's 23 correspondence until much later when it really had 24 reached the stage of Parliament. 25 Q. Can I ask you this: if you had been asked to prepare a page 4 1 response to Mr McKie's letter do you think you would 2 have responded in similar terms? 3 A. Probably, yes. 4 Q. Can you understand Mr McKie's concern that what appeared 5 to be happening was a degree of complacency, he couldn't 6 understand -- 7 A. I can appreciate that, yes. Now, yes, I can and you 8 know Mr McKie's complaints quite rightly stepped up a 9 gear when information came to the fore about the second 10 print in the Asbury case being challenged. I think at 11 that stage his complaints changed from incompetence to 12 something more sinister. 13 Q. Yes. 14 A. And once again, one can understand that. But I was 15 aware of the media campaign, I was aware of people 16 casting about and getting solicitors to say things about 17 fingerprints and, yet, I felt secure, having been at 18 this meeting with the SCRO officers on 20th May and 19 having what I thought were a range of points which were 20 such that explained the jury's verdict and did not seem 21 to undermine the basic SCRO procedures. 22 So, I mean, it wasn't complacency. It may have 23 appeared to be complacency to Mr McKie and those outside 24 this circle but, from my point of view, like Mr Murphy 25 in the immediate aftermath of the case I was concerned page 5 1 about it but then that meeting reassured me and that 2 reassurance stayed with me I think until I started to 3 see the Frontline Scotland programmes and then I heard 4 of the emerging findings from the HMCIC Inquiry. So 5 we're talking about a year later. 6 Q. I understand that and I am sure you understand the point 7 I am seeking to make with you which is there was a 8 crisis point after the McKie trial had finished. The 9 public were very concerned about the position. You had 10 carried out investigations with SCRO, who were the 11 people who were being, as it were, blamed for the 12 mess-up, information was imparted to you by SCRO but not 13 being made public. That's right, isn't it? 14 A. Yes. 15 Q. So you might have been satisfied but the public were 16 still concerned how on earth did this happen. 17 A. Yes. 18 Q. Would you not agree with the observation that there was 19 such a crisis at that point, an appropriate response 20 might have been to have an independent review at that 21 point relating to Y7 and what had gone wrong? Is that 22 not a fair comment? 23 A. That might have been a reaction but, as I say, I had 24 information that reassured me that it was a one-off. 25 There were no other cases and the defence legal page 6 1 profession were on their guard and were alert and I 2 imagine were looking at every fingerprint case out there 3 and there were no other such cases coming on the 4 horizon. So it did seem to me -- as far as I was 5 concerned, it was a one-off case, something had gone 6 wrong and there was a query about one fingerprint and 7 the circumstances surrounding that and it did seem to be 8 a bit of a mystery but there were good reasons why the 9 jury reached that verdict and I felt we could move on 10 and I think, to some extent, when one looked at the 11 media pressure, a lot of it did seem to be ill-informed 12 and sensationalist and nothing really gave me concern 13 until I saw on the television Mr Wertheim being 14 interviewed. 15 Q. I understand what you're saying about your own 16 impression but it must have crossed your mind that even 17 SCRO were maintaining they were correct in the 18 identifications, the presentation of -- 19 A. Yes, but I think they kept coming up with information 20 which reassured me. I mean, I think at various times 21 they said they found more and more points of comparison. 22 I think at one stage, you know, round about the time of 23 the trial they said in this report, where are we, in 24 CO0034, did they not say they found about 18 points and 25 I'm sure by the time that Bill Gilchrist went to the page 7 1 Tulliallan meeting, the SCRO people said they'd found 42 2 points of similarity. 3 Q. Can I ask you to look at the document -- I would like to 4 know if you have seen it before. It is one I gave a 5 copy to Counsel to the Inquiry and it is a letter to the 6 Devon & Cornwall Constabulary. 7 I wonder if you could put that up, please. What 8 this bears to be is a letter addressed to Harry Bell 9 dated 20th August 1999. 10 A. Yes. 11 Q. I will just read it through and then ask if you 12 recollect ever being passed this by Mr Bell. It says: 13 "Fingerprint evidence. I write to thank you for 14 kindly advising me of the recent High Court trial 15 proceedings wherein fingerprint evidence was challenged. 16 In my view, your thoughtfulness in communicating with 17 the Head of Bureaux is a worthy action and I am grateful 18 for so. 19 "Before your letter arrived on my desk, I had seen a 20 copy of the Daily Record article and I had also viewed 21 photographic copies of the mark and the finger/thumb 22 impression, which were the points at issue. My opinion 23 was that the two were not made by the same person. 24 "The arrival of your letter prompted me to look 25 again at the two impressions and my opinion is still the page 8 1 same -- the two impressions have not been made by the 2 same person. In my view, whilst there is a suggestion 3 that the scene of crime mark may have been put down 4 twice, I cannot come to any conclusion other than that 5 which I have stated above. 6 "I write to you so that you are in possession of a 7 view from one of the people to whom your wrote your 8 letter." 9 It seems to be from the Head of the Fingerprint 10 Bureau. This is 1999. 11 Did Mr Bell tell you he had received any 12 communication? 13 A. I've never seen that letter before. I do not recollect 14 him telling me of any such communication. We did talk 15 about the prints being on the Internet and it did seem 16 that virtually all the world experts who logged into 17 this site said that they couldn't make the comparison 18 and they were saying that the mark was not Shirley 19 McKie's. But the information I got from Harry Bell 20 and his colleagues was that, you know, it was really not 21 the done thing to try to make a comparison from copies 22 and Internet and it would be down to, I suppose, the 23 quality of the printer or the number of lines on the 24 screen or whatever and it would be rather like trying to 25 get handwriting experts to offer an opinion based on page 9 1 photocopy documents. 2 So that, you know, this information that I received 3 from Harry Bell and his colleagues I think reassured me 4 in a sense or at least gave me the other side of the 5 argument and I felt that some of the criticisms that 6 were out there in the media could be explained away. 7 But I've certainly never seen that letter. Had I seen 8 that letter, I would have remembered but I have never 9 seen that letter. 10 Q. If you had been told, Sheriff Crowe, there was another 11 bureau which was questioning the identification, do you 12 not think that would have prompted you to, at that 13 stage, that fairly early stage, to get an independent 14 report on whether the analysis of Y7 was correct? 15 A. I can't remember what the timescale is and there's 16 something in my statement, which I obviously stand by, 17 that I think at one point another bureau in Scotland was 18 unhappy and I think things were perhaps said in police 19 networks, but no officer seemed to be prepared to go 20 further and the first time I was aware of a police 21 officer, a UK police officer or fingerprint official 22 attached to a police force or whatever going public was 23 when Mr Bayle was interviewed by the Frontline Scotland 24 programme, Mr Bayle of the Scotland Yard Branch. 25 Q. The last thing wanted to ask you about was the question page 10 1 of QI2. I think we know that the identification or the 2 analysis of QI2 was carried out effectively by Frontline 3 Scotland. Are you aware of that, that they paid for Pat 4 Wertheim to look at QI2? 5 A. I appreciate that, yes. 6 Q. As far as that is concerned, I take it you would agree 7 with me if they hadn't done so and had it analysed for a 8 start it's likely David Asbury might still be serving a 9 life sentence for murder; do you agree with that? 10 A. That's true, yes. 11 Q. Of course it may well be that your attitude about and 12 your feeling about SCRO would never have changed had QI2 13 not been identified as a problematic print if I put it 14 as loosely as that? 15 A. If Shirley McKie hadn't been prosecuted none of this 16 would have come out. It's an unfortunate circumstance 17 that she went through but I think had there not been 18 these proceedings then Mr Asbury would have served his 19 sentence. That's right. 20 Q. I would like to ask you just to confirm there's a 21 sentence in your written statement I would just like to 22 be clear about for purposes of identifications on 23 page 13, paragraph 17 and it's about 10 lines down from 24 the top. This is about the occasion when the Danes were 25 analysing QI2, that they were considering the matter and page 11 1 I think what you record in your statement is: 2 "They kept saying how they could not believe how 3 anybody could make an identification on the prints." 4 A. Yes. 5 Q. I take it there was an element of disbelief by them as 6 to how it came about? 7 A. Yes. 8 Q. This wasn't after consideration, well, you may not think 9 so, this was "We can't believe". 10 A. I would describe their reaction as incredulity -- 11 Q. Finally -- 12 A. It wasn't just some sort of little professional 13 difference. They were saying things like, "How could 14 this possibly be". 15 Q. I take it that was your Road to Damascus moment? 16 A. Yes. 17 Q. Finally, can I ask you this: would you accept that with 18 the benefit of hindsight Iain McKie's concerns at the 19 early stages were perhaps intuitive as to the 20 difficulties that there were with SCRO. You would 21 accept that, that he was probably right to be concerned? 22 A. I think like a lot of things, I think had we met at an 23 earlier stage and spoken round a table and had a decent 24 discussion about it, things might have moved a lot 25 quicker. page 12 1 I mean, it's sad to reflect over this correspondence 2 that really nothing -- nothing seemed to happen from the 3 acquittal until about June or July the following year. 4 All I can say in slight defence for part of that period 5 was there was an HMCIC Inquiry going on and that was 6 seen as a, sort of, front line Government response and 7 we all filed in behind that. 8 But once -- I mean, really I suppose I was much 9 more -- I was certainly much more concerned after the 10 second Frontline Scotland programme. I was really 11 concerned about that but HMCIC was chosen as the way 12 forward that point and I was happy to wait until that 13 happened and then, as I say, there came a point where we 14 had to move in terms of the Asbury case and as soon as I 15 got -- as soon as I had seen what the Danes had 16 discovered and got their report, then we moved ahead 17 with securing Mr Asbury's release. 18 MR SMITH: Thank you very much. I've no further questions. 19 A. I think the only point I would like to come back about 20 was yesterday when you asked me about the SCRO meeting 21 and the experts and the procedures at trial, and all I 22 can say is referring back to CO0034 there is a part in 23 page 4 of that report where Mr Stewart, one of the SCRO 24 experts said: 25 "He asked if two or three days to study and page 13 1 thereafter explain the defence evidence would have 2 helped." 3 I appreciate earlier in the report at page 2 4 Mr Murphy does explain that there was time and he did 5 see the officers beforehand but I think that accords 6 with my recollection that the SCRO officers had never, 7 as far as I could make out, had a head-to head challenge 8 on the identification of the subject of who'd made the 9 mark. They'd never had such a full-on challenge as that 10 before and I suppose they were saying, you know, they 11 would have liked -- I suppose everyone would like more 12 time in that circumstance. I think that's the only 13 comment I would like to make. 14 MR SMITH: Thank you. 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 I would like to cover is 18 the media attention but there is one particular matter 19 that I would like to ask as a result of the statement I 20 would like to expand on on that particular subject. The 21 second is the investigation into QI2 and QD2, in 22 particular the report prepared by the Danes. The third 23 is, as I understand it, the training undergone by SCRO 24 staff at the time and the fourth relates to treatment of 25 the SCRO officers following the challenge. page 14 1 THE CHAIRMAN: Yes. Well, the training at the time is not 2 really for this purpose. 3 MR HOLMES: There is something in the learned Sheriff's 4 statement about his understanding of the training -- 5 THE CHAIRMAN: I see. Yes, very good. 6 Cross-examined by MR HOLMES 7 Q. Sheriff, if I can ask you first about the publicity 8 surrounding the case at the time. You've spoken a lot 9 about inaccurate reporting and I'm not going to go back 10 over that, but paragraph 10 of your statement to the 11 Inquiry says: 12 "By the time of the HMCIC investigation the matters 13 were now getting extremely political." 14 A. Yes. 15 Q. Does that infer something that was driving the 16 investigation by that stage? 17 A. I think by now that I don't mean anything particularly 18 sinister but it was very much in the hands of the 19 Justice Minister and the Lord Advocate and I think the 20 Justice Minister was actually taking the lead because 21 criticism was directed at SCRO and being a Police 22 Service he had a responsibility for that and I suppose 23 people were really making allegations that there was 24 something wrong with the SCRO, it just wasn't one case 25 or one human error but it was perhaps something systemic page 15 1 there. So that was why, I suppose, they took the lead 2 and it was such a matter of concern that it was right 3 that it should be raised in the Scottish Parliament. We 4 were in the early stages of the Scottish Parliament but, 5 you know, one could see that -- and I joined the Crown 6 Office just in the lead-up to devolution -- one could 7 see the difference between pre-devolution where if a 8 case like this had blown up there would be a debate 9 350 miles away in Westminster at 3.00 in the morning and 10 it wouldn't have the same impact. 11 But I do remember in Crown Office when somebody 12 asked a question or when there was a motion made about 13 it that one or both of the law officers would just go 14 along the road to Parliament because at that time, as 15 you know, it was in the General Assembly Building so a 16 very short distance from Crown Office and I think this 17 was our first experience of how intimate and how close 18 and how quick-reacting and how the publicity could be 19 much more focused than in previous cases. 20 I mean, I can think of Marie Julie and the 21 Kilmarnock murder and that was about five years before 22 and there were lots of criticisms about somebody being 23 on bail and then murdering a girl. But when the debates 24 were down in Westminster, you know, there didn't seem to 25 be the same longevity to the criticism. But I do think page 16 1 this was a new dimension with the Scottish Parliament. 2 This was really the first of these big issues that they 3 had to tackle. 4 Q. Is that to say the media attention that the McKie case 5 was getting at the time had a greater effect because of 6 that? 7 A. I'm sorry, greater ...? 8 Q. The media attention the case was getting at the time had 9 a greater effect than would previously have been the 10 case? 11 A. Yes. 12 Q. Paragraph 10 of your statement also says that it was 13 decided to involve HMCIC to investigate as Mr Iain McKie 14 had no faith in Strathclyde Police. People must have 15 expressed a lack of faith in the police before. Why, in 16 particular, does this complaint incur an investigation? 17 A. I'm sorry, it's very difficult to see you with that 18 screen. 19 Q. I'm wondering why in particular Mr McKie's expression of 20 his lack of faith in Strathclyde Police results in an 21 HMCIC investigation? 22 A. I don't think that's that but I think as I do say in my 23 statement Mr McKie was extremely good at articulating 24 his complaint. I mean, he knew what he was talking 25 about and, you know, maybe he had had media training as page 17 1 a police officer before, I don't know. He came over 2 extremely well and I have to hold my hand up to him 3 about that. 4 I think around the same time -- and Sir Anthony will 5 know that -- I was involved in the Chhokar Inquiry and 6 there was a fair old media campaign going about that 7 case but by comparison I think Mr McKie was very 8 forceful, reasonable and informed and, you know, maybe 9 he felt it was taking an age to get through all the 10 layers of bureaucracy. But he made his points and it 11 was a story that the media picked up and ran with and, 12 with the work Frontline Scotland did, it continued to 13 have legs and began to reach a stage where it was right 14 for the authorities to make some more detailed enquiries 15 into really the quick exercise that Sean Murphy and I 16 had done at the start which we felt reassured by the 17 answers we were given. 18 Sorry, about Strathclyde Police, I think at one 19 point Strathclyde Police maybe said that they would make 20 some enquiries into it and there is a procedure where in 21 certain circumstances another force will be brought in 22 if it's felt that the complaint is of a higher level and 23 I don't know, I wasn't party to the decision, but 24 Mr McKie I think had served part of his time in 25 Strathclyde Police but I presume that he served prior to page 18 1 Strathclyde Police being created and in Strathclyde 2 Police he would know people and so on. Maybe it was 3 just felt with that background it was better to have 4 someone else and the HMCIC was brand-new. I think he'd 5 come up from England and so he was a completely fresh 6 face into the picture and, to that extent, we would have 7 some confidence among all parties as being the right 8 sort of person to look into matters and make 9 recommendations if those were necessary. 10 Q. If I understand correctly then it's really the Frontline 11 Scotland documentary and Mr Wertheim's claims during 12 that documentary that led to the further investigation 13 of QI2? 14 A. Yes. 15 Q. You're aware that the Danes were instructed to provide a 16 report in relation to QI2 and in relation to some of the 17 other fingerprints in the case. 18 Were you aware also that the Deputy Head of Bureau, 19 Mr Robert Mackenzie, was instructed to provide an 20 additional report in relation to QI2? 21 A. I can't really remember that. I'm not sure. I have 22 seen his name mentioned but I can't remember the 23 timescale of that. 24 Q. Can I ask you to have a look at document number TC0002, 25 please. You will see that's a letter from Mr Mackenzie page 19 1 to Mr Gilchrist. 2 A. Yes. Well, I haven't seen that letter before and, as 3 you will recall from my statement, there came a stage 4 when Mr Gilchrist was investigating complaints against 5 SCRO officers and my role was simply to work with Harry 6 Bell to restore a credible Fingerprint Service in 7 Scotland. 8 Q. At some stage are you aware that the Danes were asked to 9 review their findings in relation to the fingerprints 10 that they looked at? 11 A. I wasn't aware of that, no. 12 Q. When did you become aware that they had reversed their 13 position in relation to QD2 then? 14 A. I think really only this week. 15 Q. With hindsight, given the fact that they have reversed 16 their position in relation to one of the other 17 fingerprints that they criticised the SCRO for 18 identifying, does it cast doubt for you on the findings 19 in relation to the rest of the fingerprints that they 20 looked at? 21 A. No. I think the only comment I would make is that -- 22 and it's apparent from their own report -- they had to 23 look at the marks in less than ideal conditions. I can 24 understand that now, but the constraints I was working 25 under were that the productions were still under the page 20 1 charge of the High Court, given that Mr Asbury had a 2 live appeal even before the revelations about the 3 finger-marks; so that the Danes had to look at the marks 4 with an angle-poise, a microscope, magnifying glasses 5 and perhaps not the ideal light sources or whatever that 6 they would have in the laboratory. 7 So there were some marks that they were simply 8 unable to confirm and I wasn't worried about them. What 9 I was concerned about were the main marks in the Asbury 10 case. As I said yesterday, this mark, this other mark, 11 that they now appear to have recanted on, evidentially, 12 is neither here nor there. As I understand it, it's a 13 finger-mark said to be attributed to Mr Asbury on one of 14 the bank notes. Well, he claimed it was his money so 15 whether his print was on it or not in terms of the case 16 was of no evidential significance. 17 So while it might be a cross-examination point, it 18 was not something that undermined the case in the same 19 way that the allegation was that a print, a mark of the 20 deceased woman, Ms Ross, was found in David Asbury's 21 house on the side of the tin containing the money. 22 Now, that gets back to whether a finding like that 23 is eloquent of the crime or part of the crime being 24 committed. So that's a much more interesting print from 25 some of the other marks. page 21 1 Q. In relation to the case, yes, but in relation to the 2 experts who have been instructed to view these marks, 3 does it not, cast some doubt perhaps on their ability 4 that they have had to reverse their position, no matter 5 what the evidential status of the mark they have had 6 to -- 7 A. Well, obviously some but I think from my position it was 8 explainable. They were very careful men and I think 9 they looked at a number of marks and said they found 10 insufficient material to say one way or the other and 11 the mark that everybody doesn't deny, not Y7 or QI2, the 12 other one, XF is it? I mean, they were quite happy to 13 confirm that was David Asbury's print, as SCRO had done, 14 but when it came to QI2 they said to me that they found 15 dissimilarities that were such that they felt it was not 16 possible to form the opinion that it was Marion Ross' 17 print. 18 Q. If they were so careful and the conditions under which 19 they were being asked to look at these fingerprints were 20 not ideal, ought they not then to have asked to look at 21 the prints under better conditions? 22 A. Well, possibly, yes, but it wasn't something I totally 23 appreciated until we got there. They brought such 24 portable equipment as they could and I can't -- I mean, 25 maybe I thought through the possibility of going to a page 22 1 lab somewhere for them to examine but I think we felt we 2 wouldn't go to SCRO and the whole idea of the inquiry 3 was we would just keep it away from police lines, as it 4 were. I do accept that that is a deficiency, that in an 5 ideal world one would have liked to take the productions 6 away from where they were stored, to a laboratory and 7 given them the appropriate light sources and all sorts 8 of equipment to look at them properly. 9 I think also it's apparent from the report that 10 inevitably there would be some degrading between the 11 marks having first been examined and their examination, 12 that some of the powders would melt away or whatever or 13 with the handling of the productions and their storage 14 that some of the material would be lost. So that, you 15 know, I wasn't too worried when they couldn't make an 16 identification or they found insufficient material. 17 What I was concerned about with QI2 was when they 18 emphatically said, "This is not what SCRO says it is". 19 Q. Can I ask you to have a look at CO0030, please, page 3 20 of the document. 21 There is a paragraph about midway down the page that 22 relates to QI2 where it says that: 23 "Because of the said lack of special light, as well 24 as the poor quality of the photograph, it was not 25 possible to make a comparison between the impression and page 23 1 David Asbury's fingerprints." 2 A. That's certainly not as emphatic as I remember it. 3 Q. That relates to part of the same fingerprint and it's 4 being looked at by the same experts. Is it not a cause 5 for concern that they are able come to a conclusion on 6 one part of the mark and yet on another part of the mark 7 they are unable to do so because they say neither the 8 facilities nor the material are adequate? 9 A. Yes, I mean, it is -- I suppose, looking back at the 10 report now it perhaps isn't as emphatic as it seemed. 11 They do talk about this print on page 1 of the report, 12 do they not? 13 THE CHAIRMAN: Do you want to go back to page 1? 14 MR HOLMES: QI2 was part of the same fingerprint -- part of 15 the same mark. 16 A. That's the bit I remember. The top of page 2 they say 17 the finger-mark QI2 does not originate from Marion Ross. 18 Q. Is it not a cause for concern that they are able to be 19 so emphatic in relation to one part of what is 20 essentially a conglomeration of two fingerprints and yet 21 on the other they say they weren't able because of the 22 materials and the conditions to make any conclusion? 23 A. I accept that and, you know, I do say in my statement 24 that there were instances where SCRO were able to make 25 identifications that really other experts in Scotland page 24 1 did not have the expertise to make or offer an opinion. 2 Maybe they couldn't get enough points of comparison or 3 whatever. 4 But in those days it really seemed to be that you 5 either got 16 points and that was it or you couldn't get 6 16 points and, accordingly, you were unable to offer an 7 opinion. 8 Q. The final document that I would like to refer to on the 9 subject of the Danes is DB0200. 10 This is a letter from a Mr Jensen who is also a 11 Danish expert and it relates to QD2. If we can look at 12 paragraph 4 of that letter please, it states that: 13 "By comparing these two prints our department found 14 10 identical minutiae. There is no doubt that print QD2 15 belongs to David Asbury. No differences between the 16 prints were detected. Even for a novice in this area it 17 should be easy to establish the identity between the two 18 prints." 19 Standing that, does that not cast some doubt on the 20 conclusions of the other two Danish experts who 21 originally failed to identify QD2? 22 A. It may do, yes. I mean, it's not an infallible science, 23 despite what I think people have tried to maintain for 24 70 years. I think all I can say in defence of the 25 experts and the examination which I witnessed, I felt page 25 1 they were careful, they were cautious, they were not 2 working under optimum conditions and, as I said to you, 3 that mark doesn't have any particular evidential 4 significance. But then I suppose, in one sense, maybe 5 Y7 didn't. 6 Q. So far as the present Inquiry is concerned, the 7 conclusion that can be taken from this is that in 8 relation to QD2 the two experts who were consulted were 9 wrong? 10 A. That seems to be, yes. 11 Q. If I can move on briefly to your understanding of the 12 training of SCRO fingerprint experts in particular, you 13 say that at paragraph 4 of your statement that you had 14 some doubts about the quality of the SCRO Fingerprint 15 Officers, you fear they had become de-professionalised 16 since police officers were replaced with civilians who 17 were trained on the job. 18 What qualifications do you understand senior police 19 officers to have in examining fingerprints that the 20 civilian officers did not? 21 A. I think they had -- they also had the benefit of a 22 broader hands-on experience that they probably started 23 out as Scenes of Crime Officers and then they also had 24 broader detective skills so that they would be perhaps 25 better able to focus on certain material and might be page 26 1 able to give better advice to front line officers about 2 where to look and what to look for and what to 3 concentrate on and, you know, in something like a murder 4 inquiry the first 24/48 hours are crucial. In many 5 instances the matter can be solved by that time or 6 suspects forthcoming. But if it's going to be a more 7 long drawn-out thing, then as I say there's a greater 8 emphasis and pressure on Scenes of Crime Fingerprint 9 Officers and forensic scientists to produce clues and 10 lines of enquiry for the detective officers. 11 So, you know, I do recall in my early days as a 12 Fiscal in Glasgow in the late '70s meeting someone like 13 Detective Superintendent Cook who had 33-years' 14 experience, much of it in the forensic side. He'd been 15 involved in the Paddy Meehan case and I suppose, maybe 16 as a young impressionable person, I did respect and 17 appreciate that great wealth of experience he had in the 18 job. 19 Maybe I was doing down Fingerprint Officers when the 20 science was civilianised but it did seem they were very 21 much desk-bound and there wasn't the same link and there 22 was a separation between the Scenes of Crime Officers 23 and the folk in the office and I had been in the Langhan 24 case, which was a murder case involving a fingerprint. 25 I think some of the four officers were involved in that. page 27 1 That was 1989. I was very impressed with the police 2 Scenes of Crime Officer Detective Sergeant Peighton, who 3 was a man of great experience, and I think after that I 4 didn't work so much in the Glasgow area. I worked in 5 Fife and the provincial bureaux definitely did not have 6 the same levels of expertise. 7 But, as I said, in my statement, when I met the SCRO 8 officers at that meeting in May 1999 I was impressed 9 with their professionalism. They all had -- by that 10 stage they all had at least 20-years' experience each, a 11 generation of officers had grown into the job and, as 12 I've found in other spheres, pathology, for example, 13 they had loads and loads of cases every day, every week 14 in which to build up an expertise that was perhaps, that 15 was greater than the provincial bureaux who didn't have 16 the same work and perhaps didn't have the same levels of 17 serious crime. So that was the reason I was reassured 18 for, I would say, six or nine months after that meeting. 19 Q. We have heard that these experts are office-bound and 20 that's because they do only fingerprint comparison. 21 Does that specialisation, in your view, reassure you as 22 to their expertise? 23 A. Well, it's a dichotomy, I suppose, but I think you do 24 need to have a good level of casework to maintain your 25 expertise but if there's perhaps too many cooks involved page 28 1 in the process, one might not be able to secure optimum 2 evidence and in most circumstances up until this case we 3 were obviously very interested in identifying marks and 4 I think as a prosecutor I was interested in trying to 5 establish whether those marks were eloquent of the 6 crime, were they inside the house or outside the house, 7 were they at the point of entry, were they on the handle 8 of the knife, were they in such a position on a cheque 9 that was consistent with somebody having held the cheque 10 and written a signature? These were the sort of things 11 I was interested in and I feel that perhaps the SCRO 12 Fingerprint Officers were much more compartmentalised 13 into, "This is a mark; we've identified it". 14 Now that, I understand, can be great work at times 15 and extremely difficult. It must be very hard on the 16 eyesight and I think there are situations where they 17 picked up identifications that other experts could not 18 do but I think there's another bit in the process 19 about -- and there were cases that were prevalent for a 20 while, that even if you found a criminal's finger-mark 21 where perhaps it shouldn't be, whether that was 22 necessarily helpful in proving the charges that you have 23 outstanding. 24 Q. If I can move on finally to the treatment of the 25 officers following the controversy, I think you said page 29 1 yesterday that the treatment of the officers and in 2 particular the length of time for which they were 3 suspended before the decision was made was unfair to 4 them. 5 A. I don't think I said about the length of time, no. I 6 think the point I was trying to make was that the fact 7 that they weren't able to get back to what they had been 8 doing I could appreciate they felt was unfair, but the 9 point I was trying to make was that once we had two 10 alleged mis-identifications in the one case, I felt that 11 their credibility as expert witnesses had been 12 undermined, that I personally would not have proffered 13 them as Crown witnesses in subsequent prosecutions. 14 Q. So are we to understand from that that the controversy 15 in relation to QI2 contributed to their withdrawal? 16 A. Yes. 17 MR HOLMES: Thank you very much. 18 THE CHAIRMAN: I did ask yesterday but it may be if anything 19 has arisen, have any of the other Core Participants any 20 issue they wish to raise? 21 MISS GRAHAME: I have no application to make. 22 MR MACPHERSON: I have nothing, thank you. 23 MR MOYNIHAN: I have no further questions. 24 THE CHAIRMAN: I think you have the dubious privilege of 25 this Inquiry and the previous one that I was involved in page 30 1 of giving evidence and thank you very much. 2 A. I think it only remains for me to adopt my statement 3 other than those bits that I have been cross-examined 4 on. 5 THE CHAIRMAN: Well you are meticulous as ever. Thank you 6 very much. We have just made it before 11.00. the 7 forecast was all right. Thank you. 8 (The witness withdrew) 9 MISS CARMICHAEL: Sir, the next witness is Mr Harry Bell. 10 HENRY WOODS BELL (sworn) 11 THE CHAIRMAN: Could we have your full names please for the 12 record. 13 A. My full name is Henry Woods Bell. 14 THE CHAIRMAN: Take a seat please. 15 Examined by MISS CARMICHAEL 16 Q. Good morning, Mr Bell. 17 A. Good morning. 18 Q. I think you have, in fact, provided two statements to 19 the Inquiry, one that was taken down by a 20 statement-taker and then signed by you and then a 21 supplementary statement that you've prepared and signed 22 yourself. 23 A. That's correct. 24 Q. Now, are you happy that they record your position 25 accurately? page 31 1 A. More or less, yes. 2 Q. Just starting perhaps with a small point of detail about 3 the first of your statements which I think we all have 4 here. It is FI0043. 5 In the first paragraph it's noted that you were the 6 Director of SCRO from 1997 and I think elsewhere in your 7 statement we see that, in fact, you may have started in 8 November 1998 and I would just like to clarify just what 9 the time-frame was of your involvement at SCRO. 10 A. Yes, 1998 is the correct date. November 1998 is when I 11 became Director. 12 Q. You tell us in your statement that you became involved 13 in the Shirley McKie case really only after the trial in 14 1999. 15 A. That's correct. 16 Q. I would like to take you first to paragraph 5 of your 17 statement and perhaps about seven or eight lines in 18 there you say that you caused the Deputy Head of the 19 Fingerprint Bureau, Robert Mackenzie, and possibly at 20 some later stage Mr Robert Dunbar to examine the 21 disputed finger-mark. 22 I would like to be quite clear about the first time 23 that you asked, in the first place, Mr Mackenzie to deal 24 with the matter? 25 A. I can't recall the specific detail. What I can say is page 32 1 that I asked them both to re-examine the mark and come 2 to me with their conclusions. 3 Q. There is a date rather further down your statement here 4 of 20th May mentioned and I think we can probably have 5 that highlighted for you. 6 Does that accord with your recollection today as to 7 when you first asked Mr Mackenzie to re-examine the 8 matter? 9 A. It would be some time between the end of the trial 10 date -- which I recall being somewhere around 11 14th May -- and 20th May when we held the meeting with 12 the Crown. 13 Q. What did you ask Mr Mackenzie to do at that stage? 14 A. Just to carry out a reexamination of the mark and to 15 come to us with his conclusions. 16 Q. What happened? 17 A. He confirmed it was Shirley McKie's fingerprint mark. 18 Q. Was Mr Dunbar involved at that stage? 19 A. Again, I can't recall the exact detail but 20 Mr Dunbar carried out the same examination and came back 21 with the same conclusions. 22 Q. Again was this at some stage before your meeting with 23 Mr Murphy and Mr Crowe on 20th May? 24 A. Yes. 25 Q. If I can move on to 20th May, you have told us in your page 33 1 statement I think that the meeting was at your behest. 2 A. Yes. 3 Q. Why were you convening the meeting? 4 A. There had been quite a bit of speculation in the media 5 about the case and the conclusion of the case and I felt 6 it was appropriate, because fingerprints were integral 7 to the case, albeit we didn't know what the jury found 8 on. I felt it was appropriate to have the mark 9 reexamined and to meet with the Crown and, indeed, the 10 prosecuting advocate to clarify if there was any areas 11 that I had to look at. 12 Q. If you can at this time -- and I appreciate that we are 13 ten years on now -- if you can articulate for us just 14 what your concerns were at the time you were going into 15 that meeting? 16 A. My concerns were basically based on the media 17 speculation about the mark. Mr McKie in particular was 18 making public statements about the case, about the mark 19 being wrong, about the quality of the fingerprint 20 experts from America and I felt it was appropriate to 21 look at the circumstances for myself at that time. 22 Q. I wonder if we could have the minute, CO0034, up on the 23 screen please. I think here we see a minute of the 24 meeting or a record of the meeting. 25 Can I just ask you at this stage what you took away page 34 1 from that meeting before we turn to the detail of the 2 minute? 3 A. I took away from the meeting that there were areas that 4 the SCRO Fingerprint Bureau would have to look to 5 improve on it and that the Crown and the prosecuting 6 advocate were satisfied with the evidence given by the 7 experts and its conclusions. 8 Q. What were the areas that you felt you would have to go 9 away and improve on at the end of the meeting? 10 A. I think they are documented on potentially the next 11 page. 12 Q. I think we may need to turn to the final page of the 13 document to get some of them. We see at the end a 14 series of learning points. 15 A. Yes, there was visits by advocates which we asked if 16 that could be put in place. I think Mr Crowe in 17 particular was going to try and arrange this and also 18 circulate the information for information of the rest of 19 the regional Procurator Fiscals. We need to look at the 20 generic material that was produced as a guide to a jury 21 in court. We understood that had been criticised 22 because the charting PC, as I understand it, was not 23 actually landing on the particular or exact point on the 24 fingerprint mark and indeed to limited late submissions 25 by the defence where the Crown witnesses potentially did page 35 1 not have sufficient time to examine, to make comment and 2 give an opinion on anything. 3 Q. Insofar as there is a need for action from SCRO, was 4 that in your mind merely in relation to the presentation 5 of the evidence or were there other areas that you felt 6 you need to go away and deal with? 7 A. Well, these were the main areas to look at for the 8 presentation. We were going through a period of 9 assessment by Leishman Consultancy who were looking at 10 Fingerprint Bureaux throughout Scotland and looking to 11 see how best we could be more efficient in regard to how 12 we dealt with the volume crime, et cetera, and how we 13 graded fingerprint experts. 14 Q. I will mention it at this stage because you have 15 mentioned the Leishman report. Would I be correct in 16 thinking there were two reports from management 17 consultants that came in in 1998/1999 making 18 recommendations about structural change for fingerprint 19 services in Scotland and that's what you're referring 20 to? 21 A. Yes. 22 Q. What steps did you take at SCRO in relation to looking 23 at presentation of evidence following on from the 24 meeting here? 25 A. We looked at photographic enlargements. The detail of page 36 1 that I don't readily recall within my memory but 2 particularly looked at using photographs rather than the 3 PC charting thing to allow the jury to be more focused 4 on exactly what fingerprint evidence was and what it 5 meant. So that was one of the areas in particular that 6 we looked at and we did accommodate some visits from the 7 advocates. 8 Q. When you are talking about advocates there, do you mean 9 prosecution advocates or advocates generally? 10 A. Well, in the main it was prosecuting advocates but, I 11 mean, if advocates for the defence had wanted to view, I 12 don't think there would have been any objection to that. 13 Q. But thinking about the focus of this meeting, would it 14 be fair to say the focus of this meeting would it be 15 fair to say the focus was on perhaps how Advocates 16 Depute who prosecuted in the High Court might be better 17 informed? 18 A. Yes, that would be correct. 19 Q. When you left the meeting, what if any concerns remained 20 in your mind about what may have happened at the McKie 21 trial as regards fingerprint evidence? 22 A. It was basically I think we'd have to look for pretrial 23 indicators to see if there was going to be serious 24 challenges against fingerprint evidence. My conclusion 25 was that where experts disagree it's very confusing for page 37 1 a jury to then try to come to some sort of conclusion. 2 The SCRO experts in particular were well-qualified, 3 experienced, mature, confident individuals. I didn't 4 know the credibility of the American witnesses in the 5 case. 6 Q. Following the meeting that we have here, I think you 7 wrote a letter to some Chief Constables, Mr Bell; is 8 that correct? 9 A. That's correct. The Chief Constable as well as the 10 Executive Committee, Controlling Committee, of SCRO. I 11 wrote to each Chief Constable and the Crown and HMCIC 12 advising them of the action I'd taken and the findings 13 from that meeting. 14 Q. I think we can see that if we bring up letter CO1022. I 15 think it pages 2 to 4 that we need. I don't know if it 16 can all be brought up at once and be legible to you, 17 Mr Bell. 18 A. Slightly, smudged -- yes, that's the letter. 19 Q. But what you seem to be doing here is telling the Chief 20 Constables about the meeting with Mr Murphy and Mr Crowe 21 on 20th May 1999? 22 A. That's correct. 23 Q. You see, looking at the second last paragraph of page 2 24 there: 25 "The Crown have confirmed the opinion that there are page 38 1 no implications with regard to the legal framework 2 surrounding fingerprint evidence ..." and you go on to 3 say: 4 "Despite the media speculation, which focused on 5 attacking the integrity of the fingerprint 6 identification methods adopted in this country, there 7 were other areas of evidence in this particular case 8 which were challenged by the defence, prior to the 9 introduction of fingerprint evidence." 10 A. That's correct, yes. 11 Q. What had you understood that to be? 12 A. Well, I hadn't attended the court case. I understood 13 that to be allegations or suggestions about how Shirley 14 McKie had been treated during the arrest situation at 15 her home and that that may have been an emotive area 16 within the trial. 17 Q. If we can move on to the next page, please, you then 18 write: 19 "Although fingerprint evidence was an integral part 20 of the prosecution evidence and subject to direct 21 challenge, it is not known which elements of any 22 evidence were accepted by the jury. Indeed, when 23 experts for the prosecution and defence appear to be in 24 disagreement, then the jury may find the disagreement 25 itself to be confusing, if not unacceptable. This may page 39 1 cause doubt to be cast over the whole area of expert 2 evidence being presented by both sides." 3 A. Yes. 4 Q. You go on to give some detail, if we can highlight the 5 next paragraph. You say: 6 "The debate on the actual fingerprint centred on the 7 upper two-thirds of the fingerprint detail", and that 8 was an area which experts had dismissed as being too 9 distorted to evaluate. You go on: 10 "The SCRO staff focused their identification on an 11 area which included more than 16 points of comparison 12 while the defence submission argued that the distorted 13 area, if overlaid with the tips of the accused's 14 fingerprint, eliminated her. The SCRO experts were not 15 given the opportunity to re-examine this detail but 16 remain clear that no evidential value could be given to 17 the distorted area." 18 Now, can I just clarify what you were trying to 19 convey with the last sentence there, Mr Bell? 20 A. I was trying to make -- the last sentence. The last 21 sentence refers to the fact that the officers had 22 indicated to me that there had been -- they had been 23 asked in court to examine, to give an opinion of the 24 fingerprint and standing in court was not the proper or 25 appropriate place to do that. They should be seated at page 40 1 their desk, they should have proper lighting and the 2 proper frame of mind to approach this. 3 Q. So this was essentially a concern that they would have 4 liked to look at some of the defence evidence in more 5 detail? 6 A. Yes. It related directly, I think, to the fact that 7 there was late submissions of fingerprint evidence, of 8 defence evidence here and the officers were reluctant to 9 give an opinion standing in the court. They would have 10 liked to have looked at it and I think in reasonable 11 circumstances they should have been. 12 Q. Can we take that enlarged paragraph down please. 13 You say: 14 "The Crown were unable in a legal context to 15 introduce other fingerprint experts who may have 16 previously examined this case on behalf of the defence." 17 I would like to be clear as to what your 18 understanding was at that stage of who else might have 19 been involved. 20 A. My understanding at that time was that there was an 21 individual, a Peter Swann, who was a fingerprint expert 22 of some renown who had acted and been called by the 23 defence to examine the fingerprint and it was my 24 understanding that he had agreed that it was, indeed, 25 Shirley McKie's fingerprint and that that had not been page 41 1 referred to in court. 2 Whether there was a legal barrier to do that, 3 Mr Murphy was of the view that he was trying to 4 introduce Peter Swann's evidence and he had spoken to 5 Shirley McKie during her evidence to try and elicit this 6 information. 7 Q. I should say Mr Murphy (who is now Sheriff Murphy) when 8 he gave evidence to the Inquiry, his recollection was 9 that at the time of the trial itself he had not had firm 10 information that Mr Swann had, in fact, examined the 11 matter for Shirley McKie and I think his explanation was 12 that if he had been, the name Mr Swann would have been 13 put to her, which as we know about from transcripts it 14 wasn't. 15 A. Hm hmm. 16 Q. Are you clear in your own mind that your impression was 17 that it was known to the Crown? 18 A. Well, now ten years later I would accept that it was 19 either known at the time during the trial and I accept 20 Mr Murphy's explanation. It may well be that it was 21 certainly known to us on 20th May and it was discussed 22 and brought up then and thereafter became a point of 23 reference as Peter Swann rather than there were other 24 individuals. 25 Q. Were you aware of another individual, a Mr Graham, at page 42 1 that stage? 2 A. Yes, round about that same time, a Malcolm Graham. 3 Q. In the next paragraph you say: 4 "It is the opinion of the Crown that the case was 5 unique in certain areas and is unlikely to cause any 6 serious damage to fingerprint evidence. 7 "Indeed, each case stands on its own merits and this 8 would be the response of SCRO fingerprint experts, if 9 challenged, in the future. In addition, SCRO experts 10 will highlight the fact that a number of other 11 challenges were made during the case and that despite 12 the fact that the media focussed on fingerprints, it is 13 not known what other areas of evidence were considered 14 relevant by the jury." 15 The first sentence there, looking at that, "The case 16 was unique and unlikely to cause any serious damage to 17 fingerprint evidence", did that reflect your own view as 18 well as conveying the view of the Crown there? 19 A. I think in particular it reflected the view of the Crown 20 and Mr Murphy. Mr Murphy, Sheriff Murphy, if I recall 21 didn't view it as a serious challenge on other 22 fingerprint cases at that time. 23 Q. What was your feeling about the matter? 24 A. I felt there was always the potential it could be 25 referred to. I was happy to hear him saying that. I page 43 1 was happy to see that the view of the Crown and that the 2 circumstances involved independent experts for the 3 defence who, although they hadn't been called, their 4 identification was that it was Shirley McKie's 5 fingerprint. So I had a form of separate and 6 independent corroboration of what had happened here. 7 Q. If we can take the enlarged paragraph down there you go 8 on to write: 9 "Notwithstanding that, lessons and enhanced 10 practices can always be considered and following a 11 meeting of SCRO management and staff, it is intended to 12 reevaluate the methods of evidence presentation to 13 ensure staff are even better equipped to address the 14 courts in future." 15 A. Yes, that's correct. 16 Q. You say: 17 "These areas will include generic fingerprint 18 presentations and the possibility of utilising 19 PowerPoint, overhead slides, flip charts and individual 20 books for each jury member." 21 Did that happen in your time at SCRO? 22 A. I think some of the areas were addressed, yes. At this 23 moment in time I can't recall that detail. 24 Q. For completeness in the last paragraph you refer to the 25 intention to circulate Procurators Fiscal about page 44 1 monitoring late submissions of evidence with a clear 2 statement of intention to seek an adjournment, if 3 necessary, on any late submission. You also refer to 4 the prospect of prosecuting Advocates, as we've already 5 clarified, coming to visit SCRO. 6 A. That's correct, yes. 7 Q. Then if we look finally at page 3, the final page of the 8 letter, you say that you hope, "... the informed outline 9 is of assistance to you and your staff." 10 Did you receive any feedback on that from any of the 11 Chief Constables? 12 A. Yes. The Chief Constables appreciated being kept 13 up-to-date with the events and the actions I had taken 14 and they were satisfied with these matters. 15 Q. Did you also write to heads of Fingerprint Bureaux? 16 A. Yes. 17 Q. And what was your purpose in doing that? 18 A. I think there was a number of enquiries from a number of 19 Fingerprint Bureaux throughout Scotland, indeed 20 internationally, and I prepared a response to send to 21 them explaining what had happened from my position. 22 Q. And you corresponded with people both in Scotland and in 23 England, in fact? 24 A. Yes. 25 Q. I would like to ask you about some correspondence that page 45 1 you had with Devon & Cornwall Police, Mr Bell. We don't 2 have the document on the system so it is going to have 3 to be put up manually if you bear with us for a moment. 4 This appears to be a letter of 20th August 1999 to 5 you from someone at the Scientific Support Unit at Devon 6 & Cornwall Constabulary. 7 A. Yes, that's correct. 8 Q. If we can perhaps move through, just look at the letter 9 because this is not something you were shown when you 10 gave your statement, Mr Bell. 11 What we see there is: 12 "I write to thank you for kindly advising me of the 13 recent High Court trial proceedings wherein fingerprint 14 evidence was challenged." 15 Now should we take it that that's a response to, I 16 suppose, a communication that's similar to the one to 17 the Chief Constables that we've looked at? 18 A. An abridged version of that, yes. 19 Q. Is that something that you would have sent out in 20 response particularly to a query from Devon & Cornwall 21 or is it something that you would have sent out to a 22 number of different people in the same form? 23 A. At this moment in time I would say that it would 24 possibly be in response to an enquiry or a request for 25 clarification. page 46 1 Q. The writer goes on: 2 "In my view, your thoughtfulness in communicating 3 with other heads of bureaux is a worthy action and I am 4 grateful to you for so doing. 5 "Before your letter arrived on my desk, I had seen a 6 copy of the Daily Record article and I had also viewed 7 photographic copies of the mark and the finger/thumb 8 impression which were the points at issue. My opinion 9 was that the two were not made by the same person. 10 "The arrival of your letter prompted me to look 11 again at the two impressions, and my opinion is still 12 the same -- the two impressions have not been made by 13 the same person. In my view, whilst there is a 14 suggestion that the scene of crime mark may have been 15 put down twice, I cannot come to any conclusion other 16 than that which I have stated above. 17 "I write to you so that you are in possession of a 18 view from one of the people to whom you wrote your 19 letter." 20 A. Yes. 21 Q. Do you recall receiving this letter at this stage, 22 Mr Bell? 23 A. Yes. 24 Q. What was your reaction to it? 25 A. I presume there may have been a letter of response to page 47 1 it. 2 Q. Well, we will look at that letter. Perhaps before going 3 to the detail of the letter, I suppose, what was your 4 feeling in receiving something of this sort? Is it 5 something that perhaps shook your view or changed the 6 view you had had when you had come away from the meeting 7 of 20th May 1999 or did you have some other reaction to 8 it? 9 A. My reaction was that this a fingerprint expert who had a 10 different view and that view was the same as the defence 11 experts. But, you know, I wasn't going to get into the 12 game of catching numbers to say we have six saying it is 13 her and five saying it isn't her and going through that 14 process. 15 The fingerprint circumstances had developed and I 16 noted the letter. That was my position. 17 Q. We will look at your response, Mr Bell. This is a 18 letter to the Chief Constable of Devon & Cornwall 19 Constabulary dated 28th October 1999 and you write: 20 "I refer to the letter of 20th August 1999, from 21 Mr Townson ..." 22 So I think we can perhaps take it, although the name 23 is blacked out on the other copy, that it was in fact a 24 Mr Townson that had been writing to you? 25 A. It would appear so. page 48 1 Q. "I wish to advise you of the following. At the 2 conclusion of the High Court trial, referred to in the 3 letter, I met with the prosecuting advocate and a senior 4 representative of the Crown Office in Scotland. They 5 are satisfied with the integrity of the fingerprint 6 experts from the Scottish Criminal Record Office. 7 "Despite the fact that fingerprint evidence was an 8 integral part of this case, there were other areas of 9 evidence which were challenged by the defence. 10 Obviously, it is not known which elements of evidence 11 were accepted by the jury. 12 "When experts for the prosecution and defence 13 disagree, then the disagreement itself is likely to 14 cause doubt to be cast over the whole area of expert 15 evidence presented by both sides. 16 "The media speculation following the trial focussed 17 on some areas of the fingerprint evidence presented but 18 such accounts were limited." 19 You go on to write: 20 "I am aware that certain individuals have placed, in 21 the public forum, certain photographic copies of 22 impressions; and that these impressions are presented as 23 broadly supportive of the propositions advanced by these 24 individuals. The Scottish Criminal Record Office is 25 bound by the rule that witnesses for the Crown are not page 49 1 permitted outwith the proceedings to discuss evidence in 2 support of their views. It must also be borne in mind 3 that unlike the defence witnesses in this case, SCRO has 4 no right to hold fingerprint records of individuals who 5 were not convicted and they are certainly not in a 6 position to circulate the fingerprints of the individual 7 who was not found guilty." 8 Turn over to the next page: 9 "I note the opinion expressed by Mr Townson, 10 however, like the Crown, remain wholly satisfied with 11 the integrity of the SCRO fingerprint experts and their 12 court presentation in this case. 13 "I trust this information is of interest to you but 14 I regret that I am not entitled to enter into debate on 15 the evidence of the Crown, following the trial. In the 16 meantime, for reference purposes, I will place 17 Mr Townson's letter on record, along with SCRO papers 18 pertaining to this case." 19 A. That's correct, yes. 20 Q. I suspect others might suggest to you that this is 21 something that you should have acted on in some way and 22 that it should have perhaps shaken your faith in the 23 integrity of the SCRO fingerprint evidence. 24 You have told us about not wanting to get into a 25 numbers game perhaps of so many experts on one side, so page 50 1 many experts on the other. However, when one has a 2 somebody else from another bureau writing to you to 3 express a particular view, did it not perhaps prompt you 4 in some way to look again at the matter? 5 A. I had the opinion at the time that this officer in Devon 6 & Cornwall had carried out his examination on the 7 Internet prints, if they were available at that time. 8 That would have been the only way, I presume, that he 9 would be able to make any sort of attempt at comparison. 10 The information I was given was these would not be 11 the best evidence. The best evidence is the first 12 evidence that SCRO held and that was presented in court. 13 So, on the basis of that, this officer was not making a 14 comparison from the best evidence. But I did record his 15 view on it. 16 THE CHAIRMAN: You must have circulated a large number of 17 bureaux from what you said. 18 A. I did indeed -- internationally too, yes. 19 THE CHAIRMAN: Can you recollect if you had any similar 20 views expressed casting doubt on the identification? 21 A. I can't say at this moment in time that I received any 22 other personal letters. I am aware that there was an 23 Internet website which contained a lot of references to 24 individuals claiming they were fingerprint experts. 25 THE CHAIRMAN: I was thinking more of letters like this page 51 1 drawing it to your personal attention. 2 A. At this moment in time, nothing jumps to mind. There 3 may well have been but nothing actually jumps into my 4 mind. 5 THE CHAIRMAN: I can imagine with the passage of time it is 6 not easy, but you don't recollect any? 7 A. No. 8 MISS CARMICHAEL: Mr Bell, did you continue to be happy with 9 the integrity of the SCRO evidence about print Y7? 10 A. Yes. Robert Mackenzie gave me a personal presentation, 11 if I recall, and Robert's presentation was very 12 compelling. He's a very experienced, articulate 13 individual, particularly in the area of fingerprints, 14 and I found his presentation to be very compelling. 15 I'm not a fingerprint expert myself. I'm just going 16 on the basis of the deputy head of the bureau had 17 re-examined and come back and given me his opinion and 18 that was that it was Shirley McKie's print. 19 Q. You mentioned a presentation from Mr Mackenzie. We may 20 hear that Mr Mackenzie gave a presentation to an SCRO 21 Executive Committee in early February 2000. 22 Was the presentation to you before that presentation 23 or is that the presentation you're talking about? 24 A. No, this was one in my own room in the Director's Office 25 at SCRO in Pacific Quay. I can't recall whether it was page 52 1 before or after that but it was in Pacific Quay, it 2 wasn't the executive meeting. 3 Q. There came a time in January 2000, I think, when there 4 was a Frontline Scotland documentary about print Y7 and 5 there came to be, I think, a considerable response by 6 SCRO/Crown Office needing to consider what to do in the 7 light of that documentary. 8 Is that something you remember? 9 A. That's correct, yes. 10 Q. I would like to ask you about a memo, CO0535. This is a 11 memo dated 20th January 2000 from a Chief Inspector 12 Christopher Griffiths. If you just stop there, perhaps 13 you can tell us where Chief Inspector Griffiths fitted 14 in the structure? 15 A. Chief Inspector Griffiths was a police officer and he 16 was the head of the SCRO Fingerprint Bureau. 17 Q. And it's to Mr Gorman, superintendent. Again, can you 18 tell us where he fits in? 19 A. Mr Gorman was the Deputy Director at SCRO, my deputy. 20 Q. And it's marked as for your own attention. 21 A. Yes. 22 Q. What we see here is: 23 "Case of HMA v McKie. Telephone call from Mr W 24 Robertson, Chief Constable. 25 "With reference to the above subject, Mr Robertson page 53 1 telephoned SCRO at approximately 9.30 hours on Thursday 2 20th January with a view to discussing issues relating 3 to this case. He directed that the following be brought 4 to the attention of Detective Chief Superintendent 5 Bell." 6 First: 7 "Mr Robertson has received a letter from the Chief 8 Constable of Strathclyde Police requesting that the 9 McKie case be placed on the agenda of the next meeting 10 with the chief constables." 11 Then second: 12 "Mr Robertson received a telephone call from 13 Mr Brown, Chief Constable of Grampian Police, who has 14 asked whether it is Mr Robertson's intention to order an 15 inquiry." 16 If I can just stop there, first of all, what is 17 Mr Robertson's role in all this? 18 A. Mr Robertson was Chief Constable of Northern 19 Constabulary at that time and he was chair of the SCRO 20 Executive Committee, Controlling Committee as it became. 21 Q. What about Mr Brown? How does he fit into the picture? 22 A. Mr Brown would be a member of the SCRO Executive 23 Controlling Committee as a Chief Constable. 24 Q. What we see next is: 25 "Mr Robertson wishes to discuss the position page 54 1 relating to the case further with Mr Bell. In 2 particular, a decision will require to be made on 3 whether to concede to something or to hold to our 4 position." 5 I appreciate, Mr Bell, that you are not the author 6 of this document but what did you read that last 7 sentence as meaning? 8 A. I presume potentially conceding to investigation or 9 inquiry. 10 Q. Where there's a reference to "holding our position", 11 what would you have understood "our position" to be? 12 A. That the fingerprint identification was correct, that 13 the Crown were satisfied with the evidence but at that 14 particular time you would have to look at the extent of 15 the media speculation that was ongoing and that would be 16 a driving force to turn round and potentially cause 17 Mr Robertson to correspond with me. 18 Q. If the position that we should understand here is that 19 Y7 is correctly identified, that the fingerprint 20 evidence is secure, is there any suggestion that some 21 concession should be made in relation to that rather 22 than in relation to the question of whether there should 23 be some inquiry into the matter? 24 A. At that time I would look towards the view that perhaps 25 having some sort of inquiry might have been in his mind page 55 1 rather than turning round and saying there was any 2 challenge from within the organisation as the Police 3 Service as to what the fingerprint identification was -- 4 when I say organisation I mean within SCRO Fingerprint 5 Bureau. 6 MISS CARMICHAEL: Sir, I am conscious of the time. 7 THE CHAIRMAN: We take a short break during the morning, 8 ostensibly for the benefit of the stenographer but 9 everyone appreciates it. So we will sit, again, at 10 11.50 and I apologise for interrupting your evidence. I 11 should say that today I intend to sit to 3.30. 12 (11.32 am) 13 (A short break) 14 (11.50 am) 15 MISS CARMICHAEL: Thank you, sir. 16 We were looking at document CO535 and we had been 17 talking about paragraph 2 of the document. I would like 18 to look at paragraph 3 and part of paragraph 4. We see: 19 "Mr Robertson remains prepared to robustly defend 20 the position of SCRO, however, he must be assured of 21 sound footing in relation to the SCRO stance." 22 Then if we look at the second part of paragraph 4 we 23 see Mr Robertson being recorded as saying: 24 "We must make sure we have covered every angle if we 25 are to defend ourselves. He said that we could no page 56 1 longer stand on our dignity and must be on a sound 2 footing." 3 Did those passages cause you any concern, Mr Bell? 4 A. Nothing other than he was clearly just looking for 5 reassurance, was there any other angle that we were open 6 to. Again, bear in mind the extent of the media 7 speculation fuelled by Mr McKie and others, 8 Parliamentary questions were coming into the office. It 9 was an intense period of management within SCRO at the 10 time. 11 Q. Did you feel in the light of Mr Robertson being recorded 12 as saying that every angle has to be covered, feel that 13 there was something further that you needed to do in 14 order to cover any further angles? 15 A. There was nothing at that time in my mind that I could 16 do, nothing else that I could do. We were preparing for 17 the SCRO Executive Committee meeting in Stirling and we 18 were preparing -- Robert Mackenzie and Alan Dunbar were 19 preparing a presentation for that to show to the rest of 20 the Chief Constables. But at that time with Mr Brown's 21 inquiry and the request from the Chief Constable of 22 Strathclyde to put it on the agenda, it was looking 23 towards that there would be some sort of investigation, 24 in my mind. 25 Q. I think we can take that down now. page 57 1 Before we move on to the SCRO Executive Committee 2 meeting, I would like to look please at a document 3 SG0545 and if we could have the other page of that up 4 also, please. We will stick with those for the moment 5 for legibility at the moment, thank you. 6 This is the letter dated 20th January. That is the 7 same date as the memo, I think, to Mr Crowe, 8 again responding to the Frontline Scotland documentary 9 that had been shown two days previously? 10 A. Yes. 11 Q. What you record in the third paragraph of the first page 12 here is that you agree with Mr Crowe's view that the 13 Frontline Scotland broadcast did not produce any 14 additional information which would affect the actions 15 previously undertaken in relation to case and you say: 16 "The articles on the Internet, copies of which were 17 forwarded to [you] on 7th January 2000, were apparently 18 posted by fingerprint experts who disagreed with the 19 findings of the experts from SCRO. It would appear that 20 their opinions were based on the articles displayed on 21 the Internet." 22 A. Yes. 23 Q. Does this again reflect an understanding on your part 24 that people were looking at material which you had 25 understood not to be the best material? page 58 1 A. Yes, correct. 2 Q. Similarly if we move on to the first paragraph on the 3 next page, you write: 4 "The findings of SCRO's experts are based on the 5 examination of the actual evidence which includes the 6 crime scene mark photographed by Scene of Crime Officers 7 from Strathclyde Police. The images presented on the 8 Internet, which are apparently meant to represent the 9 photographed scene of crime mark taken by the defence 10 expert, Mr Pat Wertheim, are not considered to be the 11 best evidence available for examination. Indeed, the 12 images of the scene of crime mark displayed on the 13 Internet would appear to be limited in terms of 14 definition, surface area and, as indicated on the 15 Internet, they appear to bear a slight brush mark across 16 the latent. This brush mark is not apparent on the 17 photograph of the scene of crime mark provided by the 18 Scene of Crime Officers from Strathclyde Police." 19 Mr Bell, can we take it that in giving this view of, 20 if we can put it that way, of the quality of the 21 Internet images you are conveying information that has 22 been passed to you from somebody else? 23 A. Yes, in particular from Robert Mackenzie and Alan 24 Dunbar. 25 Q. So you are reflecting their view as they expressed it to page 59 1 you at that time about the usefulness of the Internet 2 images? 3 A. I would not have the skill to be able to articulate 4 that. It would be an expert's assistance there. 5 Q. If we look at the third paragraph on that page you are 6 recording that, at that stage, the evidence has been 7 assessed by the Deputy Head of Bureau and Quality 8 Assurance Officer and should we take that as being 9 Mr Mackenzie and Mr Dunbar? 10 A. That's correct. 11 Q. Again, what you record there is what they have conveyed 12 to you at that stage? 13 A. Again, that is correct, yes. 14 Q. Can we take that paragraph back in, please. 15 If we can just look at the last paragraph there on 16 page 2 you write: 17 "As indicated above, SCRO has not been provided with 18 material by the defence, the programme producers nor the 19 experts who participated in the programme. However, I 20 am further advised that in addition to stating that 21 there were no dissimilar characteristics, experts from 22 this office are confident that alleged discrepancies, 23 referred to by those who supported the television 24 programme's argument, would be professionally explained 25 in any future court hearing." page 60 1 Can I ask you what you're trying to convey there 2 regarding explanations in future court hearings? 3 A. If there was a case where there was litigation proceeded 4 with, then the officers would, again, get an opportunity 5 to explain their version of events or views on the 6 defence submissions. 7 Q. But we can take it also, I suppose, from that paragraph 8 that Mr Mackenzie and Mr Dunbar had been in a position 9 to be able to say something to you about the alleged 10 discrepancies that were highlighted in the Frontline 11 programme? 12 A. Yes. 13 Q. Can we look at the next page, please. Again, you turn 14 to the scene of the meeting of 20th May and, again, I 15 think we see a reference to Peter Swann just in a short 16 paragraph there. 17 A. Yes. 18 Q. You say: 19 "SCRO has not approached Mr Peter Swann at any 20 time ..." and you were unaware of his exact involvement 21 in the matter. 22 What should we take from that? What did you 23 understand at that stage? What did you know? 24 A. Well, it had only been passed to me that Peter Swann had 25 looked at the defence fingerprint marks and then page 61 1 concluded it was Shirley McKie's. But I had no factual 2 evidence of that having occurred until I was approached 3 by Mr Swann at a meeting in England, totally different. 4 He just identified himself as Peter Swann. He made me 5 aware that he had been the individual who had examined 6 Shirley McKie's fingerprint and that was the end of the 7 conversation. He really introduced himself. 8 I then spoke to a Mr Cook who I understood from his 9 information that he held a view for a defence. So these 10 individuals had approached me, basically. 11 Q. For clarity, when did that happen, Mr Bell? 12 A. This is some time well down the road. I can't remember 13 the exact date but it was well down the road of these 14 events. 15 Q. We can take the letter down now. 16 I think we know that the SCRO Executive Committee 17 meeting took place on 7th February 2000. 18 A. Correct, yes. 19 Q. Taken shortly, what was the upshot of that? 20 A. It was concluded that SCRO Executive Committee Chair, 21 Mr Robertson, would ask the HMCIC to look at the 22 circumstances and I welcomed that approach. 23 Q. An investigation started by HMCIC following on from that 24 meeting but before even their emerging findings came to 25 light, there came to be a further documentary from page 62 1 Frontline Scotland. 2 A. Yes. 3 Q. This time focussing on the print QI2. 4 A. Yes. 5 Q. At the time when it became apparent that there was 6 dispute about that fingerprint also, did your view of 7 matters and your faith in the integrity of the SCRO 8 fingerprint evidence alter in any way? 9 A. No, I didn't find it -- if there was a dispute and 10 difference of opinion on one fingerprint I didn't find 11 it totally unusual that there was going to be one in the 12 case of Asbury and I'm not an expert but when that came 13 up, it didn't turn me towards saying, "Well, now the 14 SCRO experts must be wrong because here we 15 have ..." because, as I understood it, it was 16 potentially the same witnesses for the defence who were 17 looking at this. But that's only my detail I can 18 remember. 19 Q. But I suppose it might be thought that it was perhaps 20 quite unusual to have a dispute about any fingerprint in 21 a case and now apparently you were faced with a dispute 22 about two fingerprints in the one case, perhaps making 23 the matter rather exceptional and that that might have 24 prompted some sort of change of view. 25 A. If that had been done or had occurred in a set of page 63 1 circumstances where it suddenly popped up and here was a 2 challenge on it, but if you look at the sequence of 3 events that I think emerged in this case of the pressure 4 and the intensity of the McKie approach to discrediting 5 every aspect of the officers' evidence, every aspect of 6 SCRO Fingerprint Bureau, it became clouded within that 7 rush to -- and it just emerged out of that at the end. 8 So it wasn't that there was a gap, there was no 9 dispute, everything was quiet and suddenly here's an 10 allegation that another fingerprint was wrong. This 11 followed a sequence of events which, to me, concluded in 12 their favour by turning round and saying, "Here's 13 another fingerprint that's wrong". So for me it denuded 14 some of the value of what they were saying. It would 15 need to be looked at by other people and the 16 investigation was the way to go. 17 Q. Round about that time in 2000 how much of your time in 18 your work at SCRO proportionately was taken up with 19 dealing with this case? 20 A. The demands on my time were incessant. Every day there 21 was allegations in the paper. There was invariably 22 letters either to me, to the Chief Constables or the 23 Crown for information or response. There was MPs 24 questions, Parliamentary questions, being raised daily, 25 three and four a day which demanded answers right away. page 64 1 There was the pressure of trying to keep the Bureau 2 running and bear in mind SCRO provided a bigger service 3 than just fingerprints but there was a demand to try and 4 address the challenges within the regrading, the 5 restructuring, the working conditions, the environment, 6 the morale of the staff and against all of that you had 7 this constant, constant drive from the McKies to 8 challenge and throw everything up even against myself at 9 times. It was the most demanding part of my police 10 career as a manager. 11 Q. There came a time in June 2000 where emerging findings 12 were made public from the HMIC investigation? 13 A. Yes. 14 Q. I suppose the headline from that, and certainly what 15 perhaps became literally a headline for the media, was 16 that your Bureau was not efficient or effective at that 17 time. 18 In the light of those emerging findings, was your 19 view as regards the integrity of the evidence on Y7 and 20 QI2 altered in any way? 21 A. I understand that Mr Taylor's HMCIC had a finding that 22 would suggest or indicated that the Bureau was 23 inefficient and ineffective and that foreign experts had 24 looked at the fingerprint and had concluded that it was 25 not Shirley McKie's. I understand that. The main page 65 1 thrust of him saying it was ineffective and inefficient 2 was on the basis, in my mind, on the case load the 3 Bureau was carrying. There was a 7,000-case backlog 4 when I arrived at the Bureau. The morale of the staff 5 wasn't good. The gradings of the staff was lower than 6 some other bureaux in Scotland, the working environment 7 wasn't good, the AFR (Automatic Fingerprint Recognition) 8 system had come in and there was demands on the experts' 9 time to work on that. 10 So there was a lot of things that I had to look at. 11 I was ably assisted in this by the work of ACPOS with 12 the Change Review Team, the ACPOS team, the Leishman 13 Report. This all gave me a basis of where I could work 14 from. So a lot of the matters that the HMCIC had 15 referred to in his report as emerging findings had 16 already been identified within these separate inquiries 17 or inquiry teams and what I was happy he did there was 18 to raise them to recommendations and suggestions so that 19 he was placing on a pedestal that something would have 20 to be done about these things because they were his 21 recommendations. 22 Chief Constable Hamilton put in a report following 23 on Leishman and I think he had difficulty putting across 24 the requirements that were needing to be put in place to 25 resolve issues. He only had the HMCIC, he had looked at page 66 1 everything, he had looked at areas that we were actively 2 working with and I think he actually acknowledges that 3 in his report. I was glad to see those recommendations 4 and suggestions because I knew that now we would 5 progress these, and we did. 6 Q. The recommendations and suggestions, and I think there 7 were 25 recommendations and 20 suggestions which are a 8 matter of public record and I don't need to take you to 9 the content of those, but those came with the final 10 report rather than with the emerging findings 11 announcement in the June. 12 A. Yes. 13 Q. If we could look just for a moment at a document CO1012, 14 this, as you will see from the cover sheet here, is a 15 report from HMCIC to the ACPO President, Chief 16 Constable, Mr Rae, providing emerging findings into the 17 primary inspection of SCRO Fingerprint Bureau. 18 If we can go to the document itself, please, we see 19 it is headed, "Primary Inspection SCRO Fingerprint 20 Bureau emerging findings", and then we have a short 21 third paragraph: 22 "The emerging findings from this inspection are as 23 follows ..." and we see under "People", the recognition 24 of dedication and commitment of staff, a need to improve 25 the management of differences in opinion between page 67 1 experts -- and I will have something more to ask you 2 about that later on but I won't dwell on it just now -- 3 and a need for more extensive administration support and 4 for a more comprehensive approach to training and 5 updating of staff. 6 Are those the sorts of items that you felt came to 7 be of assistance to you when the final report came out? 8 A. Yes, indeed. The administrative support was very 9 helpful because it allowed the fingerprint experts to 10 concentrate on their area of expertise and not to be too 11 engaged in the administrative duties. 12 The training of staff: he focused on putting staff 13 down to Durham in particular and that exposed them to 14 other areas within the fingerprint world, in particular 15 within the UK. So that was a good move in that sense. 16 Q. There then follow some issues about structure and 17 recruitment. Again, should we take it those were the 18 sorts of areas you regarded as in some way helpful to 19 you? 20 A. Yes. SCRO was located in Pitt Street and Pitt Street 21 was the Police Headquarters of Strathclyde Police and 22 the real perception from other bureaux was SCRO was 23 nothing more than a bureau or department within 24 Strathclyde Police and it was important in my mind to 25 try and get an independent corporate identity for SCRO page 68 1 and the move to Pacific Quay obviously assisted in that 2 greatly. But I was attempting to bring on board the 3 other bureaux and to bring them towards a Scottish 4 Fingerprint Service which was the ultimate goal at that 5 time. 6 Q. Under "Resources" at the bottom of the page, I think you 7 have already referred to the fact that AFR had placed 8 certain demands on the fingerprint experts and is that 9 something that we see reflected there? 10 A. Yes, that's correct. 11 Q. Move on to the next page, please. We see the top bullet 12 point is some of the difficulties couldn't be resolve by 13 good management alone and a significant injection of new 14 funding and resources was required? 15 A. That was a key statement for me because anything that 16 was going to change would require additional resources 17 and funding within tight budget areas. 18 Q. Under the heading "Processes", we see in the first 19 bullet point a reference to the introduction of the 20 non-numeric standard scheduled to take place elsewhere 21 in the UK later that year and the need for an 22 implementation plan for that in Scotland at that time. 23 A. Yes. 24 Q. You refer to support and direction from the Crown Office 25 being needed to assist in the transition and there is page 69 1 reference to a Crown Office Expert Evidence Committee. 2 Moving away from the content of this document, can I 3 just ask you at this stage do you know whether the Crown 4 Office Expert Evidence Committee ever did come to be of 5 any assistance in that matter? 6 A. That matter was not resolved or implemented, the 7 non-numeric, until after I had retired so I'm not fully 8 aware. I know that Crown Office were always willing to 9 give assistance and give guidance on any of these areas 10 and they were aware of the implications of it. 11 Q. The third bullet point we can see reference to progress 12 being made in the introduction of documented standards 13 and procedures. Force Fingerprint Bureaux are some way 14 behind SCRO. Should we take that to be a reference to 15 the bureaux other than the SCRO Fingerprint Bureau 16 within Scotland? 17 A. Yes. 18 Q. We see also moves towards an eight-force standard. Can 19 you tell us what that was? 20 A. That was a group that had been formed pulling together 21 fingerprint experts from all the other bureaux in 22 Scotland. It was initially chaired by the Chief 23 Constable of Hamilton and then I took over the Chair but 24 it only run to two meetings before it was disbanded on 25 the basis of the HMCIC's Inquiry. page 70 1 Q. Then we see a further bullet point "Higher priority for 2 quality assurance required"? 3 A. That was to split the role of the Quality Assurance 4 Training Officer which we ultimately achieved. 5 Q. Because I think at that stage the two roles had been 6 held by the same person? 7 A. That's correct. 8 Q. We can put that item back. 9 We then move on in this document to the McKie case 10 and the first paragraph that we see there records that 11 the reason for bringing forward the part of the 12 inspection relating to the Fingerprint Bureau was the 13 request that HMIC or at least included the request that 14 HMIC examine the circumstances of the McKie case. 15 A. Yes. 16 Q. We see in the second paragraph there examination of the 17 case had highlighted deficiencies in the processes which 18 were followed within the SCRO Fingerprint Bureau at the 19 time in 1997. 20 We also see: 21 "It has also raised awareness of the importance of 22 presentation skills in the presenting of expert evidence 23 in court." 24 It is recorded that it was quickly recognised by 25 SCRO that there was room for improvement in the manner page 71 1 in which Scottish experts presented their evidence and 2 that extra training had already been provided in that 3 respect. It is also recorded that was an area which 4 needed further attention, particularly in the advent of 5 a non-numeric standard. 6 A. That's correct. We engaged independent consultants to 7 give advice on court presentations, procedures to try to 8 improve that. 9 Q. However, what we see next is: 10 "The primary concern emanating from the McKie case, 11 however, was the difference in expert opinion which was 12 expressed in court." 13 We see also: 14 "At the conclusion of this inspection two senior 15 fingerprint experts, one from the Netherlands and one 16 from Norway, were asked to conduct an independent 17 comparison between the crime scene mark ... and the 18 fingerprints of Shirley McKie ..." with both experts 19 concluding that the latent mark was not made by Shirley 20 McKie? 21 A. Yes. 22 Q. It is recorded also that those findings were similar to 23 those of the American defence experts and that the 24 opinion of the experts was that there was sufficient 25 detail in the crime scene mark to make a fingerprint page 72 1 identification but the latent mark hadn't been made by 2 Shirley McKie. 3 A. Yes. 4 Q. And that a meeting had been arranged by HMIC and key 5 stakeholders in the management of SCRO to discuss the 6 way forward. 7 Do you have any recollection at this stage of what 8 that last paragraph would refer to? 9 A. About the meeting? 10 Q. Yes. 11 A. I think it would be the one that was held -- I was 12 absent -- where the HMCIC presented to the SCRO 13 Executive Committee, the Chief Constables of Scotland, 14 at the Scottish Police College, I think it was. I was 15 on holiday at the time. 16 Q. Could we move on to the next page, please. 17 We then go straight to the conclusion: 18 "Having examined the strategic direction, structure, 19 management arrangements, resource availability, level of 20 demand and the processes, HMIC found that the SCRO 21 Fingerprint Bureau [was] not fully efficient and 22 effective at this time." 23 The writer identifies that a way forward would be 24 required at two levels: first to deal with the McKie 25 case and the interest which was likely to result from page 73 1 HMIC's inspection report and for SCRO to move on from 2 the McKie case and take the organisation and delivery, I 3 think that should be of fingerprint services in Scotland 4 forward. 5 We see that the inspection report would make a 6 series of recommendations intending to improve the 7 efficiency and effectiveness of SCRO in the short, 8 medium and long-term future. 9 Would you accept, Mr Bell, that at least looking at 10 what we see on this page there is some considerable 11 focus on the McKie case in the context of the efficiency 12 and effectiveness of the Bureau? 13 A. Yes, in relation to the McKie case, yes. Clearly it was 14 focussing on the evidence or the findings of the two 15 international experts or foreign experts who concluded 16 it was not Shirley McKie's fingerprint and that was the 17 thrust of that statement. 18 Q. I'm asking about this because what you told us is that 19 you took the thrust of the finding about efficiency and 20 effectiveness as relating, if I can put it this way, to 21 the general structural difficulties and challenges with 22 which you were faced. 23 A. Yes. 24 Q. Rather than with the differences of opinion between 25 experts in the McKie case and I'm suggesting to you that page 74 1 perhaps what we see here would reflect the finding about 2 efficiency and effectiveness was, in fact, at least in 3 part directed to concerns about the McKie case and the 4 differences that had emerged in that. 5 A. I wasn't taking away from the fact that the HMCIC had a 6 view on the McKie case and the experts that he had 7 engaged. I understand that, and I understand that was 8 an area of concern. I was of the view that would now be 9 prompt an inquiry which would be able to have a debate, 10 open debate, on it. But here we had another situation 11 where there was experts disagreeing and, again, I go 12 back to saying that once experts disagree whose side you 13 actually stand on? Is it the you're in or do you turn 14 round and say where do we get this independence that can 15 actually take us forward? 16 I would have welcomed that but how were you going to 17 get that? Were you going to disregard the experience of 18 a deputy head of Fingerprint Bureau in Scotland, a 19 quality assurance officer, individuals from down south, 20 base that against evidence from expert witnesses from 21 America and I understand the international experts or 22 the foreign experts engaged by HMIC had a standing in 23 the international community. So you had to acknowledge 24 these things, yes, and that's where the inquiry moved on 25 from that, this stage of the HMCIC's investigation moved page 75 1 on. 2 Q. You have mentioned I think you mentioned the word camp. 3 Did you perceive yourself as standing in any particular 4 camp? 5 A. I was seeing myself as having to defend allegations on a 6 daily basis that -- and some personal allegations made 7 against me made by Mr McKie and I wondered why he would 8 go to the level of associating himself with allegations 9 of conspiracy in other cases just to forward or put his 10 view forward and I found that a bit distressing. When 11 he actually concluded down the page to say that he has 12 nothing personal about Harry Bell I found that quite 13 disturbing that he would go to -- 14 I understood that here we had a gentleman whose 15 daughter had been through a lot of pressure, a lot of 16 stress and the family too but we had fingerprint experts 17 too who genuinely believed in what they had found and 18 they were going through a lot of pressure too and they 19 were going through pressure on a daily basis by being 20 attacked by Mr McKie and others and MSPs. And nobody 21 was really, really defending them openly because of the 22 situation we were in within an organisation that doesn't 23 respond, that doesn't debate, that recognises the jury 24 system had made a decision, that recognises that civil 25 litigation could come up, that appeals could come up. page 76 1 These were areas that you had to turn round and say, "I 2 have to take a note of that. I have to watch what I say 3 that I don't compromise any of these areas", and trying 4 to be fair to the employees of SCRO. 5 Q. Did there come a time when you became aware that Danish 6 experts that the Crown had employed had disagreed with 7 the SCRO finding about QI2? 8 A. Yes. 9 Q. When was that? 10 A. I can't again give you the detail of that. It just 11 emerged that was the next set of circumstances that came 12 out, yes. 13 Q. How did you learn about that? 14 A. Potentially, it was the Crown Office phoning me, 15 Mr Crowe, Sheriff Crowe. 16 Q. What was your reaction to that? 17 A. Again, we were in a situation now that it was -- you 18 know, there was more likelihood of people not supporting 19 the identification and the view I was getting from the 20 experts within SCRO, Robert Mackenzie, Alan Dunbar, was 21 that there was a potential that the people looked at 22 things in a different fashion and a different approach 23 and that itself may be an area as to why there was 24 differences. I was as concerned about why could experts 25 have such a difference of opinion on a fingerprint, on page 77 1 two fingerprints now. 2 Q. You're saying you were getting some explanation about 3 how differences might have occurred. Can you recall 4 what explanation you got? 5 A. Well, it was on the basis of again not being a 6 fingerprint expert and I don't want to go down that road 7 of bifurcations, islands, they took about how these 8 would be looked at, whether one may be seen as two 9 islands or one and that would give you a different count 10 and approach to the thing. That's my recollection. I 11 can't give you much more detail than that. 12 Q. So it was that sort of explanation? 13 A. It was along the lines of that, if I recall correctly, 14 yes. 15 Q. I would like to ask you now particularly about 16 procedures for disputed marks. I think I indicated 17 earlier that we would perhaps look at that in a little 18 more detail. 19 In your statement you were asked about a letter 20 relating to a particular case which we can bring up as 21 CO1515. If we can go to the letter itself, particularly 22 page 3 of the PDF. 23 Perhaps I won't need to trouble you with the start 24 of this letter but what we see at the final paragraph on 25 the page we're looking at, PDF page 3 is that on page 78 1 5th April 2000, SCRO received a request from the 2 Kilmarnock Procurator Fiscal to prepare fingerprint 3 evidence in relation to a particular summary case. 4 A. Yes. 5 Q. If we can move on to the next page, you narrate here 6 what had happened in that case, which was that a lady, 7 Mrs McQueen, had confirmed an identification but that 8 Ms McBride had come next to the case and was not 9 prepared to identify the mark because she couldn't come 10 to a definitive conclusion and that she subsequently 11 asked another gentleman, Mr Macpherson, who had agreed 12 with her about the matter. 13 A. Yes. 14 Q. You set out that as a result the case had gone to the 15 Quality Assurance Officer, Mr Dunbar, and to the Deputy 16 Head of Bureau, Mr Mackenzie both of whom had agreed I 17 think with Mrs McQueen? 18 A. That is correct. 19 Q. Then you go on to say what had gone on to happen in this 20 case. I wonder if you could just tell us a bit about 21 what did. 22 A. Well, in view of the fact that we had different opinions 23 in the case, this case had gone to the Procurator Fiscal 24 at Kilmarnock and was active. I prepared a letter, if I 25 recall, and caused my Deputy Head, Brian Gorman, to call page 79 1 and see the Procurator Fiscal and explain to him the 2 circumstances and make him fully aware of what had 3 actually occurred. 4 Q. I think we learn that, in fact, the case may have been 5 not proceeded with in the light of what had emerged? 6 A. I believe that was the outcome, yes. 7 Q. I wonder if we could look at the next page of this 8 document. What you set out at the top of that letter 9 is: 10 "It is not uncommon for fingerprint experts to 11 differ in their professional opinion as to whether there 12 is sufficient detail in a fingerprint impression to 13 identify an individual." 14 How did that reflect your experience in your work at 15 SCRO? 16 A. If it came out that it was -- the procedure that was put 17 in place was that if an expert identified a fingerprint, 18 passed it on to the second expert who couldn't confirm 19 the print, then it would go to the Quality Assurance 20 Officer for assessment. That officer would then have 21 discussions with, potentially, both fingerprint experts 22 to see if they could resolve the matter, not to talk 23 them into agreeing but to turn round and say -- discuss 24 how they could come to conclusions and sometimes it 25 could resolve it and we could move forward in that. page 80 1 Q. That is what I would like to ask you about. You say 2 that the involvement of the Quality Assurance Officer 3 was not to talk anybody into anything but how would he 4 go about resolving that? Was that something that you -- 5 A. I was never personally present at these meetings and 6 Mr Dunbar would need to explain the detail of how he 7 approached that. But I would imagine that he would go 8 over the fingerprint himself and satisfy himself as to 9 whether or not it was an identification. He would then 10 look at how potentially the other expert, the second 11 expert, could not see this identification and point 12 these areas out and if the expert could then see them or 13 not see them, then that was it. That would progress it. 14 Q. Were you ever aware of a case where that happened, where 15 it was gone over and the second expert became able to 16 see the identification after it had been gone over with 17 him or her? 18 A. My recollection would be that, yes, that would 19 potentially happen, yes. 20 Q. Is there not a danger in that sort of circumstance that 21 somebody might be persuaded to something that hadn't 22 really been their independent view? 23 A. I don't see -- the knowing the fingerprint experts and 24 having worked there, I don't see any of them being 25 talked into anything other than what they see. They see page 81 1 the identification from their position and it's their 2 findings and it's the -- going to Tulliallan with the 3 international experts and foreign experts, with Robert 4 Mackenzie and Alan Dunbar here was an attempt to turn 5 round and say come and resolve this with discussing. 6 It's no different from that in my mind, the approach, 7 and it allowed the matter to be progressed one way or 8 the other. 9 Q. If it came to be in that circumstance that the two 10 initial experts come to agree that there is an 11 identification after the involvement of the Quality 12 Assurance Officer, what would then happen? Would the 13 matter be regarded as safe to report outwith the Bureau 14 to the Procurator Fiscal? 15 A. Yes. 16 Q. What would the Procurator Fiscal be told about the 17 extent of the initial difficulty or dispute? 18 A. Well, I don't suppose he'd be told the detail. He'd be 19 told there'd been an identification because that's what 20 it was. By the time it left the Bureau having followed 21 through these procedures it was an identification. 22 We're labouring on the fact that there was a difference 23 of opinion and that's maybe too strong a word. There 24 was a clarification. The issue needed to be addressed 25 and in that sense it was. I mean, there was no attempt page 82 1 or intention to conceal anything from a Procurator 2 Fiscal as to the process of how someone arrived at an 3 identification. 4 Q. But, equally, the Procurator Fiscal wouldn't know that 5 this process had been gone through where perhaps one 6 person had identified and another had not initially 7 identified but had only done so after some discussion. 8 A. I would agree with that, yes. That's not known but, 9 again, it's part of the workings of, I would presume, 10 most bureaux and does the Procurator Fiscal have to know 11 that detail? If he does, it's there for him, yes. 12 Q. I am sorry, I perhaps misunderstood but if the 13 Procurator Fiscal has to know what detail -- 14 A. If the Procurator Fiscal wanted to know the detail of 15 the process to reach an identification he would need to 16 only ask and it would be made available to him, I would 17 presume. Precognitions are there for that. 18 Q. So you're saying that perhaps the precognition process 19 would be a means whereby, if a fingerprint expert was 20 precognosced, you would expect something of that sort to 21 come out in the precognition process? 22 A. No, not necessarily. If the question was asked I'm sure 23 it would be explained. If that detail of the question 24 was asked, "How do you come to your identification? Did 25 you reach that identification first time round? Was page 83 1 there a quality assurance process applied in this case?" 2 If these questions were asked I'm sure it would be 3 alluded to, the fact that that part of the process had 4 been followed. 5 THE CHAIRMAN: You would need to know to ask that question 6 in the relevant case. 7 A. Yes, yes. That's reasonable to turn round and say 8 that -- and potentially it will be something built in 9 now, in future precognitions. 10 MISS CARMICHAEL: Still on the theme of areas where there 11 might have been differences of opinion between 12 individuals: during your time at SCRO, were you ever 13 aware of any difficulties arising because of individuals 14 not signing up to 16-point identifications when perhaps 15 more senior officers had been able to do so? 16 A. No, nothing jumps to my mind just now. 17 Q. Are you aware of whether there might have been any 18 difficulty if an individual had consistently not felt 19 able to sign up to what a more senior officer had seen 20 by way of an identification? 21 A. I presume that that would come to light through matters 22 being referred to the Quality Assurance Training Officer 23 and it would be reasonable that if it was the same 24 individual that was appearing having either identified 25 where others were saying that they couldn't see it or page 84 1 the other way round, an individual, the second checker 2 consistently was saying they couldn't see it where 3 others were seeing it, it may be a matter for the 4 Quality Assurance Training Officer to look at and see if 5 there was additional training needed there to try and 6 explain and resolve that issue. 7 Q. I wonder if you would look please at a document for me, 8 SG0916, at page 3 and page 4 please. 9 I appreciate this is not a document that you will 10 have seen before but I can tell you it's a document that 11 comes from after your time at SCRO and it's a record of 12 a meeting of a panel of experts on 11th and 13 12th December 2006. 14 It is quite a limited part I want to draw to your 15 attention and it's the last little paragraph on the 16 first of these pages and the first one on the second of 17 these pages, if we could bring those out, please. 18 We're talking here I think about errors rather than 19 perhaps disputes but what we see is: 20 "The recording of errors was discussed and it was 21 acknowledged that this is an area that is problematic 22 throughout the UK, with no standardised approach across 23 bureaux. 24 "Moreover there was no standardisation of how errors 25 by experts were dealt with. There was a sense that page 85 1 errors needed to be addressed through a disciplinary 2 process rather than as a training need. In particular 3 in Scotland, errors by trainees tended to be recorded as 4 such rather than being recognised as part of the 5 training process." 6 How does that accord with your recollection at SCRO 7 at the time that you were there? 8 A. I don't see that if there was an error occurred that you 9 would immediately look at a disciplinary process. You 10 would look at a training process. You'd turn round and 11 try and resolve and develop the individual to a standard 12 that was acceptable. It looks here as though if you 13 committed an error you were in a disciplinary process, 14 but how can you train and develop people if you adopt 15 that attitude? But bear in mind I wasn't present. I 16 don't understand the background of how this report was 17 put together. I wasn't at the meeting. So I can only 18 give a limited statement. 19 Q. If we can take that down. 20 Just on the topic of errors and thinking about the 21 time that you were at SCRO, how would it have been 22 determined if somebody had made an error? Whose job 23 would it be to decide if it was an error on the part of 24 another individual? 25 A. That would be down, again, to the Quality Assurance page 86 1 Training Officer, assisted by the Deputy Head of the 2 Bureau, who was a qualified fingerprint expert. They 3 would both deal with that. 4 Q. So, ultimately, it would be their decision as to whether 5 something that somebody else had done was correct or 6 not? 7 A. Yes. 8 Q. I would like to ask you now to look at a document FI0082 9 at page 15 and 16. This is a statement from a 10 Mr Shepherd who formerly worked at the NTC in Durham and 11 if we can look first at paragraph 71, what Mr Shepherd 12 says is that he formed the impression that SCRO did not 13 have a culture that encouraged experts to work 14 independently and draw their own conclusions. He says: 15 "I have taught SCRO students who attended the NTC. 16 We always stressed that an expert had to draw his own 17 conclusions after a comparison. However, when shown 18 difficult marks SCRO students would quite often say that 19 they would not draw their own conclusions and that they 20 would pass on the mark to a more experienced officer. I 21 got the impression from the SCRO students that there was 22 a great deal of peer pressure at SCRO and that it was 23 alien to challenge the conclusions of others." 24 In relation to your time at SCRO can you give any 25 comment on what is said there, Mr Bell? page 87 1 A. I didn't notice this or see this at SCRO, that there was 2 peer pressure. I held meetings with all of the SCRO 3 staff, particularly during the McKie inquiry, to brief 4 them and made myself available within the Bureau. I 5 don't see that there would be -- I didn't notice that 6 culture within SCRO. 7 If a trainee fingerprint expert is given a mark, is 8 there something dramatically wrong with him turning 9 round and saying, "I'm having difficulty with this", in 10 going to another more senior expert for guidance or 11 whatever? If someone sees that as a culture, then 12 that's within their eyes. I didn't see that. 13 Q. Are you saying you did not have a difficulty with 14 perhaps less experienced people going to more 15 experienced people to assist them? 16 A. You know, that's the way the process was at the time. 17 An expert would examine a fingerprint mark and then -- 18 if I recall rightly, they would then go to another 19 expert for corroboration. 20 When I was there we changed that to turn round and 21 say the marks came in and were allocated blind and there 22 was no indication of who had looked at the previous 23 mark, et cetera. So we built that into the equation. 24 But I just feel difficulty here in saying there was peer 25 pressure at SCRO it's not something I detected within page 88 1 the Fingerprint Bureau. I wouldn't have had a level of 2 pressure getting built up within the Bureau that would 3 in any way impact on their efficiency or effectiveness. 4 Again, I take it forward to the requirements of the 5 Lord Advocate in reviewing thousands and thousands of 6 fingerprint marks that were put out of SCRO Fingerprint 7 Bureau after the debate on McKie. All were found to be 8 correct. I personally caused marks to be examined by 9 the four experts for a year before and after to be 10 examined. All were found to be perfectly correct. 11 So if you're getting issues where there was peer 12 pressure and there was problems and issues coming up 13 some of these would have emerged during these -- there's 14 no other Fingerprint Bureau that you would be aware of 15 that had such a detailed examination carried out over 16 30 months. 17 Q. Could we put paragraph 71 away, please. I would like to 18 ask you now about paragraph 73 and 74 of this statement. 19 We see Mr Shepherd says: 20 "Quite some time after my work for Tayside Police my 21 view was fortified. An officer who had worked for me at 22 Manchester spoke to me. He had come to the NTC for a 23 course on NAFIS. He was an expert who I held in high 24 regard. He was a stickler for following rules and doing 25 things properly. He was also a quiet and unassuming page 89 1 person. 2 "After he left Manchester he went to work as a 3 fingerprint expert in Aberdeen and then SCRO. By the 4 time he was at SCRO he was an experienced expert. He 5 told me that there was terrible peer pressure at SCRO. 6 He told me that an expert could not question or 7 challenge senior experts' conclusions. He told me that 8 [and I think there must be a word here missing] that he 9 once did once challenge a senior expert's conclusions. 10 As a consequence, he was spoken to by Harry Bell and 11 Alan Dunbar about this and received a written warning." 12 Is that something that you recollect happening, 13 Mr Bell? 14 A. I recall that there was a fingerprint expert transferred 15 down from Aberdeen and he subsequently moved on to a 16 bureau to work in England. Assuming it's the same 17 individual, I recall that there may have been a 18 challenge with one of his fingerprint examinations where 19 he couldn't make the identification and it was passed 20 out of the Bureau, I'm going to say, to Central Scotland 21 Police and they confirmed that it was, in fact, an 22 identification. 23 This individual had challenges with a personality 24 clash with himself and potentially others within the 25 Bureau and I recall I may have spoken to him on that page 90 1 basis. I would resent anyone suggesting that I spoke to 2 him on peer pressure to get him to comply with what was 3 happening. I spoke to him to turn round and find out if 4 there was issues and, in fact, when he left the Bureau, 5 I spoke to him before he left SCRO and transferred and 6 he had no issues to raise with me. 7 Q. Do you remember who he was? 8 A. I honestly can't remember the name but if you mentioned 9 it I'm sure I could potentially confirm if it was him. 10 Q. Can you remember roughly what time he left the Bureau, 11 in the time you were there? 12 A. Again, that's detail I just can't recall. I couldn't at 13 this time. 14 Q. Mr Bell, I would like to move on to a different topic 15 and that is really what happened to the fingerprint 16 experts who had been involved in the McKie case. 17 The Inquiry is aware that a report came to be 18 prepared which came to be known as the Black Report. 19 A. Yes, that's correct. 20 Q. Can you tell us how that came to be prepared, Mr Bell? 21 A. If my sequence of events are correct that followed on 22 the Inquiry conducted by Mr Mackay, which concluded with 23 information from the Lord Advocate that there would be 24 no prosecution of the four experts and there was, 25 because of the intensity, again, of the McKie approach page 91 1 and to ensure that everything was done and working with 2 Strathclyde Police Joint Police Board and, in 3 particular, the Clerk to the Board, it was concluded 4 that the best approach would be to have Mr Black conduct 5 an investigation to see if there was any areas of 6 misconduct involved in this. 7 Q. What was the purpose of doing this from the SCRO point 8 of view? What were you looking to find out from it? 9 A. To ensure that there was no matters of misconduct or 10 culpability, I think was the term that was used, in 11 regard to the process and the approach of the officers. 12 I never saw the final report on the findings. I was 13 just told that there was no matters involved in that. 14 Q. Were you involved in commissioning the report? 15 A. I was involved with the Clerk to the Board, Mr Blair, in 16 going over how it was going to be structured. I had no 17 influence at all on who was going to chair it or the 18 other members of it. It was just an awareness I had of 19 how it was going to be developed so I could keep the 20 officers informed of developments. 21 Q. There has been some criticism from some quarters over 22 the years that the Black Report didn't really look at 23 the nub of the matter as to whether the experts had got 24 it right or not. 25 Do you have any comment on that? page 92 1 A. I don't see that his role was to look at whether or not 2 they had got it right and I would find difficulty with 3 certain parties if Black had come out with that remit 4 and said, "Yes, it is Shirley McKie's". I'm quite sure 5 there would be been certain parties up in arms about 6 that. That was not his remit. As I understand it, his 7 remit was to look at the process and procedures and to 8 assure the Board that there was no matters of concern in 9 that and he carried out that investigation. 10 Q. I think you have told us in your statement -- and as it 11 is dealt with there I don't want to dwell upon it 12 particularly -- that the four initial examiners, if I 13 can call them that (Mr Stewart, Mr Macpherson, 14 Mr McKenna and Mr McBride) had come to be suspended in 15 2000. 16 A. That's correct. 17 Q. And that you had had some involvement in that? 18 A. Yes. As director and head of the department it fell to 19 me to actually inform them of the precautionary 20 suspension. 21 Q. But can we take it from what you say in your statement 22 that the substantive decision on that was not yours? 23 A. No. The basis of that, I presume, came from the Mackay 24 investigation and it went to a number of Chief 25 Constables, in particular Chief Constable Rae, who was page 93 1 either the ACPOS President at the time or had moved on 2 to become the Chair of the SCRO Executive Committee and 3 he phoned me to tell me that there was a view that the 4 four officers should be suspended at this point in time. 5 Q. You yourself, did you make any enquiry into why that was 6 at the time? 7 A. I had not been involved in any aspect of the criminal 8 Inquiry. You are always looking not to expose yourself 9 to undue criticism from parties outwith the 10 organisation. So I had deliberately kept myself 11 separate from the detail of inquiry and I felt I didn't 12 need to know the reason so long as the Chief Constable, 13 the SCRO Executive Committee and Mr Mackay had grounds 14 for what they asked me to do, I was quite prepared to do 15 it. I felt it was better that I didn't necessarily know 16 that detail. 17 Q. In relation to Mr Mackenzie and Mr Dunbar, I think 18 slightly later in 2000, September, you received a 19 request that they be taken off operational duties; is 20 that correct? 21 A. Yes. 22 Q. Did that operate pretty much on the same basis, the 23 decision was not yours but you were the person who went 24 ahead and implemented it? 25 A. Yes, that's correct. page 94 1 Q. By the time we get to the Black Report, would I be 2 correct in saying that the recommendation was that the 3 officers who had been suspended should be returned to 4 duties and that the same should occur for those who had 5 been on limited duties, Mr Mackenzie and Mr Dunbar? 6 A. That's correct. 7 Q. So what steps did you take to react to those 8 recommendations? 9 A. We prepared a return to work strategy for the officers 10 who were suspended and we engaged with UNISON, who 11 agreed a the return to work strategy, and I kept the 12 Crown informed of the plan and the developments as they 13 occurred. 14 Q. I would like to ask you a little more about the 15 discussions that you had with the Crown on this matter 16 and I would like you to look first please at a document 17 CO4079. This is, we see, a minute to the Lord Advocate 18 and the Solicitor-General but what we see at the foot of 19 the page, I think, is an entry if we look at the bottom 20 paragraph -- if you could cut that out and highlight it, 21 please -- if you go to the third line there we have: 22 "Harry Bell confirmed in any event that none of the 23 four experts will be used to identify fingerprints for 24 the foreseeable future. All four are to be seen by a 25 psychologist who will assess their current state of page 95 1 mind. Some of the experts are unlikely ever to want to 2 give evidence again. In addition, all four we will 3 require to be re-educated." 4 If I can stop there, does that reflect your 5 understanding of the position as at May 2002? 6 A. Yes, but I don't think I would have used the word 7 "re-educated". 8 Q. What do you think that might be referring to? 9 A. It's just a familiarisation again of their experience, 10 of their ability to identify and look at fingerprints. 11 "Re-educated" you could say was meaning they would need 12 to start from basis and go through an exam process to 13 get fully qualified again. They were being familiarised 14 back into the working environment. We were taking every 15 opportunity to ensure that we were treating and dealing 16 with the officers as best as we could. 17 Q. Now if I can continue just with the passage there, we 18 see: 19 "If any of the experts expresses a wish to be 20 involved in making identifications in criminal cases, 21 and if Harry Bell feels that they are ready to be used 22 in such work, he would contact Crown Office at that time 23 to ascertain whether the Crown would be prepared to 24 accept reports from the experts. No such approach will 25 be made until after the civil proceedings have been page 96 1 concluded." 2 A. Yes. 3 Q. Again, did that reflect your understanding of the 4 position that you had reached in discussion with the 5 Crown? 6 A. My recollection is that we had agreed that the officers 7 would go through the process with a return to work 8 strategy and once that was complete, I receive a report 9 from the head of the Scottish Fingerprint Service saying 10 that they had satisfactorily completed the return to 11 work strategy and I then wrote to the Crown to advise 12 them of this and that the officers were available. 13 Q. We will come on to that because there are some items of 14 correspondence I would like you to look at. But before 15 we get to that stage, if we look please at document 16 CO4O81, I think we see this is a letter of 31st May 2002 17 from you to Mr Gilchrist at the Crown Office. 18 A. Yes. 19 Q. The letter starts: 20 "I refer to our telephone conversation on 30th May 21 and our discussion regarding a letter of response to 22 Mr Iain McKie." 23 You say: 24 "In this regard I offer the following comments for 25 your consideration." page 97 1 You say: 2 "As you are aware, SCRO employed the services of an 3 employment law specialist company throughout the period 4 of the SCRO experts' suspension. The future use of the 5 officers as expert witnesses is a matter specifically 6 referred to by them. They were clear in their statement 7 that the officers could justifiably claim constructive 8 dismissal if SCRO were to actively restrict their area 9 of expertise by preventing them from being available to 10 give expert evidence. It was recognised that the Crown 11 Office held the list of expert witnesses and ..." 12 I think we have perhaps heard that is something of a 13 misnomer? 14 A. Yes, it was actually held by the Justice Department, the 15 Scottish Executive, at that time. 16 Q. But again pausing there, I think the practical question 17 for you was whether the Crown were going to be willing 18 to call your experts as witnesses? 19 A. Yes, that's correct. 20 Q. Returning to the document: 21 " ... and while the employment specialists were of 22 the view that there may be some grounds for a third 23 party in the form of the Crown as a customer stating 24 that they did not wish to receive such evidence from the 25 officers, the decision thereafter would leave SCRO open page 98 1 to challenge of constructive dismissal as there was no 2 evidence of criminality, misconduct or lack of 3 capability. 4 "The employment law specialist was clear that, 5 should the SCRO officers proceed with a constructive 6 dismissal claim, the Crown would be called to explain 7 their involvement in that decision-making process." 8 What was your intention in bringing this information 9 to Mr Gilchrist's attention? 10 A. It was certainly to make him aware of the employment 11 specialist's advice that I was given, that I understood 12 from the employment specialist that the Crown, as a 13 customer of SCRO Fingerprint Bureau, if they declined 14 the services of particular individuals and refused to 15 take reports from them, then the officers could look at 16 that as constructive dismissal and the SCRO would need 17 to prepare for that and all I was doing was making sure 18 that the Crown were fully aware of the wider 19 implications of any decision. 20 Q. Were you concerned that it might put you, with your 21 employer's hat on, in a difficulty if the Crown 22 continued not to use the individuals? 23 A. No, I think at the end of the day if the Crown were 24 going to turn round and say, "Okay, we hear you but 25 we're still not going to use these officers", then that page 99 1 was a matter for SCRO then to turn round and make a 2 further consideration on it. But at that time it was 3 merely to advise them. "This is advice I'm getting, you 4 know; so I want you to be aware of everything". 5 Q. You go on in the letter to suggest a form of words to 6 Mr Gilchrist for response, which is: 7 "The Crown is aware that the officers are involved 8 in a return to work strategy. In light of the ongoing 9 civil litigation and the other relevant circumstances, 10 it is considered that it would be inappropriate to make 11 any direct comment on this matter at this time." 12 A. Yes. 13 Q. What we have seen from the previous document we looked 14 at is that the outcome of your discussions with the 15 Crown was that there would be contact but not -- or 16 there would be potentially contact between yourself and 17 the Crown about the officers giving evidence, but that 18 was a contact that wouldn't even be made until after the 19 conclusion of the civil proceedings? 20 A. Well, I didn't read it that way. I had a good 21 relationship with the Crown, I could contact them at any 22 time, and I don't see an issue with me turning round and 23 saying that -- I mean, I'm only saying what was agreed, 24 what was the position as I understood it and bearing in 25 mind again I would say that I'm putting this down on the page 100 1 basis that I've got some idea of what the Crown might 2 actually say in this on the basis that is there an 3 opportunity for Mr McKie, once again, to make a public 4 statement and attack any line of any statement that 5 would come out either from the Crown or from SCRO and I 6 was merely looking at the wording and the words, in my 7 opinion, relate to what the conclusions and the opinion 8 of the Crown were. 9 I never at any time was of the view that we would 10 not discuss this until after the civil; we could discuss 11 at any time but, yes, it was probably unlikely that any 12 decision would be made until after a civil case. 13 Q. It is possible, Mr Bell, if we can go back to the 14 previous document 0479, what we see recorded in this 15 minute, which is authored by Mr Gilchrist -- and maybe I 16 should put up the second page as well so you can see the 17 whole thing -- if we look at the bottom of the left-hand 18 page, which is what we were looking at, was that: 19 "If Harry Bell feels that they are ready to be used 20 in such work, he would contact Crown Office at that time 21 to ascertain whether the Crown would be prepared to 22 accept reports from the experts. No such approach will 23 be made until after the civil proceedings have been 24 concluded." 25 Am I understanding you to say that the last sentence page 101 1 there doesn't reflect your understanding of the position 2 as between yourself and the Crown? 3 A. Yes, that's correct and that follows on the letter I 4 wrote to the Crown advising them that they had completed 5 the return to work strategy. I mean, I don't see that 6 there was no stage that I couldn't approach the Crown to 7 discuss any matter of it. That suggests -- I mean, I 8 wasn't party to this. This is the first time I've seen 9 it. So that's a private report that's been made to the 10 Lord Advocate. But it's not my understanding of how I 11 was going to approach it and how I approached it is 12 supported by the subsequent letter you have referred to. 13 MISS CARMICHAEL: Sir, I am conscious I have taken this 14 witness very slightly over 1.00. 15 THE CHAIRMAN: I think this is convenient. 16 MISS CARMICHAEL: Thank you, sir. 17 THE CHAIRMAN: We will rise now until 1.50. 18 (1.02 pm) 19 (Luncheon Adjournment) 20 (1.50 pm) 21 MISS CARMICHAEL: Thank you, sir. 22 Now Mr Bell, I do have a few more questions for you. 23 We were looking at correspondence about the use of SCRO 24 experts as expert witnesses in court by the Crown? 25 A. Yes. page 102 1 Q. I think you started to tell us you had, in fact, gone 2 back to the Crown after the officers had completed their 3 return to work programme? 4 A. Yes. 5 Q. And I would like you to look at a document CO4086, 6 please. 7 What we see there is a letter from you dated 8 12th February 2004 to Mr Gilchrist? 9 A. Yes. 10 Q. You refer to a meeting on 16th July 2002 which in the 11 second paragraph we see followed on a letter of response 12 to Mr McKie? 13 A. That's correct, yes. 14 Q. Looking at the second last paragraph there you write: 15 "You are clearly aware, of the situation now 16 relevant to Asbury and the ongoing civil case concerning 17 McKie. It is however now appropriate that I advise you, 18 that since our meeting, the four officers in question 19 have been involved in a detailed return to work strategy 20 over a protracted period. The Head of the Scottish 21 Fingerprint Service, Mr Ewan Innes, has reported that 22 the officers have successfully completed the return to 23 work strategy and it is now considered that they are all 24 capable of performing their full duties and as such 25 should now be included on the Crown Office List of page 103 1 expert witnesses." 2 A. That's correct. 3 Q. You go on to write: 4 "I should also advise that it is apparent that the 5 officers and their staff association have a high degree 6 of expectation with regard to their inclusion on the 7 expert list and while I would ask for a formal 8 documented response from the Crown in regard to this 9 matter, I would in addition and at your convenience 10 welcome a meeting with you to further discuss matters." 11 A. Yes. 12 Q. I think it has been touched on already we have heard 13 there is no thing as a Crown Office List but your 14 concern was whether the Crown would use the officers in 15 the future? 16 A. That's correct. 17 Q. What did you mean about the officers having a high 18 degree of expectation? 19 A. It's just the officers and their union, UNISON I think 20 it was, fully expected that having completed the return 21 to work strategy that would then place them in a 22 position to be returned to full duties. 23 Q. What was your expectation, if any? 24 A. My expectation was that that was a decision the Crown 25 would make and that they hadn't made it and they would page 104 1 possibly not make it until after the civil litigation. 2 Q. Could you look next please at CO4087. That is a 3 letter back to you from Mr Gilchrist dated 4 23rd February 2004. 5 A. That's correct. 6 Q. In summary Mr Gilchrist is concerned that there's still 7 an unresolved civil action and a report awaited on that 8 and he suggests a meeting? 9 A. Yes. 10 Q. Do you have any recollection of a meeting following from 11 that? 12 A. I don't recall the detail of the meeting. Potentially 13 there obviously was one but I don't recall one now. 14 Q. I may be able to assist you a little with a letter 15 CO4091. That we see is a letter 12th March 2004, again 16 to you from Mr Gilchrist. 17 A. Yes. 18 Q. That refers to a recent meeting between you. 19 A. Obviously a meeting's taken place, yes. 20 Q. What's recorded in the second paragraph there is: 21 "As you know, the Crown has some concerns about 22 these experts being questioned about the McKie and 23 Asbury cases, should they be required to give evidence 24 in any subsequent criminal proceedings. The fact that 25 civil proceedings are still pending is a further page 105 1 complicating factor." 2 Insofar as you can recollect, does that reflect the 3 discussions you were having with the Crown at the time? 4 A. Yes. 5 Q. The letter goes on: 6 "I am not in a position at this stage to say whether 7 the Crown would wish to use any of the four experts to 8 give evidence in criminal proceedings. I would hope to 9 be in a position to do so fairly soon, however, as a 10 result of developments in the McKie civil action, in 11 particular, as you know, the Justice Department has 12 commissioned an independent expert to examine the 13 fingerprint evidence in the McKie case. We would wish 14 to have sight of his report before making any decision 15 in relation to this matter." 16 A. That's correct. 17 Q. Again, does that reflect the discussions that you were 18 having with the Crown at the time? 19 A. It does. 20 Q. Do you have any recollection of further involvement in 21 this line of discussion before you retired? 22 A. Not at this moment in time, no. 23 Q. So as far as you were concerned, that was where it was 24 left, decision was deferred until the independent expert 25 report -- page 106 1 A. Yes and that didn't happen until, I think, after I 2 retired. 3 Q. I have a few other questions on different topics, 4 Mr Bell, some of which have been raised with me by 5 others over the lunch hour. 6 The first of these is do you recall being asked by 7 others to release original material in connection with 8 the McKie case so that other people could look at it? 9 A. I recall that shortly after the meeting on 20th May with 10 the Crown and the advocate that I held a meeting with 11 the Fingerprint Bureau staff and that one member of 12 staff asked for access to the material, the McKie 13 material. 14 Q. Were you willing to release that? 15 A. No. I saw no benefit in it. If another expert from 16 SCRO says it was Shirley McKie, then what value would 17 that add to it? It was a matter that was under debate, 18 public debate, and it was a matter to ensure that no 19 other expert was, if I can use the words, contaminated 20 with the sequence of events that were ongoing 21 surrounding this identification. So it was safer not to 22 involve any other witness -- any other fingerprint 23 expert in this. 24 Q. When you say contaminated, what do you mean? 25 A. I don't mean -- just the fact that they were being named page 107 1 publicly and to go to court, there would be a challenge 2 at court potentially and for another fingerprint expert 3 to become involved in that and then go to court, it was 4 simpler if they could turn round and say, "I wasn't 5 involved in the McKie case. I had no information on 6 it", and move on. 7 Q. Do you recall being asked if you would allow the scene 8 of crime print to be examined by an outside expert at a 9 meeting of the eight-force fingerprint standard working 10 group on 23rd December 1999? 11 A. I don't recall that particularly but I don't doubt that 12 that actually happened, yes. 13 Q. Can we take it that your negative response would have 14 followed for the same reasons that you have just told us 15 about? 16 A. Yes. 17 Q. I would like to ask you whether, when you were dealing 18 with Mr Dunbar and Mr Mackenzie at any stage, they 19 mentioned to you an Appeal Court case from England 20 called MacNamee in which they had given evidence? 21 A. I think I recall some reference to that case. I don't 22 have any particular detail on it but I think -- I don't 23 know whether Robert Mackenzie was involved in it or ... 24 Q. I think I can tell you that it is a matter of public 25 record that both Mr Dunbar and Mr Mackenzie have given page 108 1 evidence. They were amongst, I think, 14 fingerprint 2 experts whom the Court of Appeal in England heard about 3 that disputed finger-marks and the decision of the Court 4 came out in December 1998 which I think would be just 5 after you had taken up your position at SCRO. 6 A. Fine. 7 Q. In the context of the McKie case, either before or after 8 Ms McKie's trial, did either of them ever mention that 9 case to you? 10 A. It would be difficult for me to pin that down. I do 11 recall there was reference to the case. I think there 12 may well have been reference to the fact that Peter 13 Swann might have been involved in that too, but I'm 14 struggling to turn round and make any real comment on 15 it. 16 Q. A final question arising from something that we were 17 discussing earlier: you had said that you recollected 18 the gentleman referred to in Mr Shepherd's statement and 19 that you might be able to remember the name if it was 20 put to you. 21 A. Yes. 22 Q. If I put the name Mr Luckcraft to you -- 23 A. Yes, that's the gentleman. 24 Q. That's the gentleman? 25 A. Yes. page 109 1 MISS CARMICHAEL: Thank you. I don't have any further 2 questions for you just now, Mr Bell. 3 THE CHAIRMAN: I think I begin, Mr Smith, what are the 4 subjects you would ask for leave to cross-examine about? 5 MR SMITH: Thank you, sir. The areas I would ask for leave 6 to cross-examine on are: first of all, the response by 7 Mr Bell and SCRO at various stages to developments we've 8 heard about. I will try not to cover anything that has 9 been covered already. The second is the culture within 10 SCRO which may be linked with the first to some extent 11 and the final is a very particular question relating to 12 the charting machines and I think that can be dealt with 13 in a fairly short compass. 14 THE CHAIRMAN: Yes. On the culture point -- 15 MR SMITH: I intend to refer to matters in a bit more 16 detail; for example, the question of Mr Luckcraft and 17 the idea of some peer pressure being exerted on 18 individuals and whether or not that was taking place. 19 THE CHAIRMAN: Yes. I give you leave then. 20 MR SMITH: Thank you, sir. 21 Cross-examined by MR SMITH 22 Q. Mr Bell, can I just be clear about this much: you have 23 on a number of occasions made reference to Mr McKie, if 24 you like, getting the media machine going, making a 25 number of public statements on a relentless basis page 110 1 following the acquittal of his daughter. 2 Would I be right in saying you feel somewhat 3 aggrieved that he was doing that? 4 A. No, you would have to look at specific areas of that 5 that made me aggrieved. I could understand he was a 6 gentleman that was defending and looking after his 7 daughter's interest and I fully accepted in some areas 8 on which he was stating he was making personal attacks 9 on me as an individual in relation to another case. He 10 made reference to me being retained in a civilian 11 capacity within SCRO and I found that annoying, yes. 12 Q. But can we agree that as far as maintaining the issue of 13 the mis-identification, as he saw of it, Y7 that's 14 something that he was well entitled to do and to press 15 publicly, if necessary, for an explanation about it? 16 A. I don't dispute that. I would turn round and say there 17 were areas of his approach, his language, which would be 18 questionable. 19 Q. The idea of keeping this in the public mind and asking 20 for explanations about systems within SCRO, about who 21 was still giving evidence, about what investigations 22 were carried out, I take it you would agree that was a 23 perfectly proper way for him to behave? 24 A. You put it in a manner that it comes across in a 25 rational way. Mr McKie was not putting them over in the page 111 1 same manner. I fully accept what you say. Mr McKie was 2 quite vocal, quite aggressive. The media were following 3 him and hanging on every word that he was saying, yes. 4 Q. Following the acquittal of Shirley McKie, I think we 5 have seen from various documents we have looked at you 6 had to consider how your organisation you were 7 responsible for ought to be able to respond to the 8 public concern. Is that right? 9 A. Yes. 10 Q. I take it you would agree that in her trial, one of the 11 things that the jury may have indeed concluded was they 12 did not accept the evidence of SCRO. That's right, 13 isn't it? 14 A. I accepted that the fingerprint evidence was an integral 15 part of the case but the issue being put forward was the 16 jury had found her not guilty on that basis and there 17 were other areas and no-one knows what the jury 18 concludes. 19 Q. Of course but we can certainly agree about this that 20 this was the first case in living memory where there was 21 a positive challenge to evidence by SCRO of that nature. 22 That's right, isn't it? 23 A. I would imagine that would be the case, yes. 24 Q. And you would realise of course that whilst juries may 25 make their minds up for all kinds of reasons, a page 112 1 possibility was that they just simply didn't -- not 2 necessarily accepted the evidence of the American 3 witnesses but they just rejected the evidence of SCRO. 4 That's right, isn't it? 5 A. No. I wasn't at the case and I was taking the guidance 6 from Mr Murphy, who was the prosecuting advocate, and he 7 made reference to the fact that the jury could have come 8 to a conclusion potentially earlier than the fingerprint 9 presentation. 10 Q. My question was you must have realised it was at least 11 possible that the jury had rejected the evidence of 12 SCRO. Did you think that was an impossibility? 13 A. No, I have never suggested that at all. I accepted 14 fully that the fingerprint evidence was integral to the 15 case and the evidence. 16 Q. What do you say Sheriff Murphy's position was about his 17 perception of the quality of presentation by SCRO? What 18 did you understand it to be? 19 A. Well, I believe he was satisfied with the 20 identification. I believe he challenged or he was 21 concerned about the presentation of that and the manner 22 in which the SCRO experts had presented their evidence 23 -- which was probably the standard presentation in 24 Scotland -- as opposed to a presentation from American 25 experts which I don't want to use the word more page 113 1 articulate or more flamboyant, more in touch with 2 relationships with the jury and I believe they were out 3 of the box and walking up and down and interacting with 4 the jury and that's not what we're familiar with that. 5 Q. Can I ask you when you first became aware that there was 6 either going to be a challenge to the evidence of SCRO 7 people or there had been a challenge to the SCRO people? 8 A. I think it was at the conclusion or just as the trial 9 concluded that there was talk in the office about not 10 being given sufficient time to look at productions 11 produced by the defence and potentially around about 12 that time. 13 Q. So if I get this right, your position was what? The 14 manager, effectively, to put it in lay terms, you were 15 manager and at some stage prior to the trial, just a few 16 days but prior to the trial of Shirley McKie officers 17 within SCRO knew there was going to be a challenge by 18 witnesses from overseas, but can we take it they never 19 told you about that before the trial? 20 A. I have to say that that's not my understanding. I'm 21 trying to get my recollection correct here and it's my 22 understanding there may have been some talk about an 23 approach to get the officers to examine evidence in the 24 court and that they had declined that. That was all. 25 I'm not sitting here being able to say to you I was page 114 1 aware or SCRO were aware that there was going to be a 2 challenge to the fingerprint evidence to that extent. I 3 had no real knowledge of the case until after it 4 concluded and the media attention focused on it. That's 5 when I really became involved. 6 If you recall, I did say that SCRO serviced other 7 areas in the police and justice system so there was 8 other areas of responsibility that I had to manage too. 9 I wasn't manager of the SCRO Fingerprint Bureau; I was 10 Head, the Director of the Scottish Criminal Record 11 Office. 12 Q. Some evidence was led from Sheriff Murphy to the effect 13 that prior to the trial commencing he sat down with two 14 individuals from SCRO to go over the defence exhibits, 15 the defence productions, and they then took these 16 productions away, copies of them, to their office to 17 look at them. Were you unaware of that? 18 A. Yes. I have no recollection of that, no. 19 Q. I take it you would agree with me that if that is the 20 position, if Sheriff Murphy correct in his recollection 21 about that, then the ability of individuals within SCRO 22 to go back to their offices, to look at the productions, 23 is something that would appear to be entirely proper and 24 you would be comfortable with that, wouldn't you? 25 A. Yes, but as I understand it -- and I wasn't present -- page 115 1 Mr Findlay put some production to one of the fingerprint 2 experts in the box and asked him to give an opinion on 3 it and the response, as I recall, was they couldn't do 4 that without the proper situation and environment. 5 Q. I understand what you're saying. That may have been 6 Ms McBride; is that right? 7 A. That may well be. I recall that someone told me that, 8 yes. 9 Q. If the scenario put to you, if Sheriff Murphy is correct 10 that he sat down some time before the trial, the 11 productions were taken away to be reviewed within the 12 SCRO offices and no doubt the opportunity of them 13 saying, "I'm sorry, I can't do this overnight, I'm not 14 prepared to do it", to speak to the Advocate Depute and 15 say, "We need an adjournment", is there anything 16 fundamentally wrong with that approach? 17 A. I just don't recall being aware of that but if that's 18 what the Sheriff Murphy says that's what happened that's 19 what happened but I don't personally recall being made 20 aware of that or having an understanding of that. 21 Q. I take it you would expect officers, SCRO officers, to 22 be confident enough to say to the Advocate Depute, 23 'We're not ready for this. This has been sprung on and 24 you need to ask for an adjournment", or, "We need to 25 discuss how to deal with this". They would have that page 116 1 confidence, wouldn't they? 2 A. I would expect them to have that confidence, yes. 3 Q. So immediately following the acquittal of Shirley McKie, 4 there was clearly a potential problem that was there for 5 the public image of SCRO. That's right, isn't it? 6 A. Yes. 7 Q. And you were having to manage that? 8 A. Yes. 9 Q. It was very much in the forefront of the media? 10 A. Yes. 11 Q. It was on Newsnight Scotland almost every night for a 12 while, wasn't it? 13 A. It was, yes. 14 Q. And you must have considered at the earlier stage that a 15 way of stopping the bad mouthing, if you want to look at 16 it that way, of SCRO was to get an outside agency to 17 confirm that Y7 was correctly identified as the mark of 18 Shirley McKie. That must have crossed you mind, didn't 19 it? 20 A. No, my conclusions were that we had the view of the 21 prosecuting Advocate in the case, that he was satisfied 22 with the evidence of the SCRO experts, that there was 23 potentially two outside experts agreed with that, that 24 there was circumstances surrounding the locus or loci 25 that wasn't correct for access and control and there may page 117 1 have been other circumstances that I just can't recall 2 at this particular moment. 3 It was a matter of turning round and saying it moved 4 very quickly from or to an SCRO executive decision to 5 involve the HMCIC and then the events rolled out as they 6 did. 7 Q. But if I can come back to the immediate aftermath, you 8 say that the Advocate Depute indicated that he was 9 satisfied with the evidence but I think you acknowledged 10 that was an indication by him that the presentation of 11 evidence was not up to scratch; that's right, isn't it? 12 A. You're using words like "not up to scratch". It was the 13 standard presentation at that time and clearly he would 14 have liked to have seen it improved and we looked at the 15 circumstances and problems surrounding the PC charting 16 which didn't exactly point to the areas questioned, as I 17 understand it, then clearly these were the aspects we'd 18 have to look at, yes. 19 Q. Can I ask you to look at a document CO2036 at page 2, 20 please. I am sorry, it may not be that document. I am 21 looking for the precognition, the statement to the 22 Inquiry of Sheriff Murphy. Give me just one moment. 23 FI0070, please. I will get the page number. It is 24 dealing with the question of presentation. 25 Perhaps while we are finding the relevant passage, page 118 1 what I am going to suggest to you is that the Advocate 2 Depute indicated that he was less than satisfied not 3 just with the fact that a PC charting machine was used, 4 an enlargement machine was used, but actually the way 5 the evidence was presented by the witnesses in court. 6 Do you recall anything being said about that? 7 A. I can only recall what's in the memo about the meeting 8 and a copy of that memo was circulated to everyone 9 present, including Sheriff Murphy, and I don't recall 10 anything being put back to clarify or emphasise or 11 highlighted particular aspects of any of the issues 12 discussed. 13 Q. Can I ask if we go to paragraph 24. It may be on 14 page 14 of the PDF, paragraph 24, going on to the next 15 page. 16 I am not sure if you have seen the statement of 17 Sheriff Murphy before, have you? 18 A. No. 19 Q. I will just read out what he says in paragraph 24. He 20 says this: 21 "The only other significant difficulty with the SCRO 22 evidence, aside from the clarity of the enlarged images, 23 was that the SCRO witnesses, in contrast to the defence 24 experts, were not able to articulate their justification 25 for the opinion they had on particular aspects of the page 119 1 mark. For example, I remember one of the points being 2 argued between the experts was whether or not one 3 particular characteristic [I think that should be 4 particular characteristic] within Y7 showed a 5 bifurcation or a compression of two ridges together by 6 the application of a pressure to the thumb. I remember 7 certainly Fiona McBride and either Hugh Macpherson or 8 Charles Stewart responding to that challenged by saying 9 simply, 'To my mind that's a bifurcation' whereas the 10 defence experts were much more articulate in explaining 11 their position. I suspect that this difference in 12 articulation arose from the American experts being more 13 experienced in having fingerprints challenged but the 14 effect of this apparent difference between the two sets 15 of experts was that SCRO looked to be more provincial in 16 approach simply saying it is because it is as opposed to 17 outlining why they thought what they did. Those two 18 difficulties, being the quality of the produced images 19 and the articulacy of the experts in evidence, are the 20 ones that stick in my mind as being significant during 21 the trial." 22 I take it that you will agree with me that it's not 23 exactly a glowing report by the Advocate Depute, his 24 thoughts prepared in the statement for this Inquiry, is 25 it? page 120 1 A. It's a statement that is much more detailed than he made 2 when we had the meeting. Again, I come back to the 3 minutes of that meeting and if you want to look at them, 4 you'll see what comment was made. I think it may even 5 be contained within one paragraph, in one line four 6 areas we'd look at, ie the PC charting and the 7 presentations in court and we didn't address that. But 8 that's not the detail that he referred to and discussed 9 at the actual meeting, as I recall it. 10 Q. But I take it you agree with me though that that 11 particular statement I've just read out in that 12 paragraph gives a relatively critical comment about the 13 way the entire way that the evidence was presented, 14 doesn't it? 15 A. Yes, but I did allude to the fact that the American 16 experts were potentially more articulate in presenting 17 their evidence and more used to interacting with a jury, 18 whereas the Scottish system lends itself to you stay 19 where you are and you present evidence. But I'm not 20 taking away the fact that that's what Sheriff Murphy 21 says, yes. 22 Q. So after the trial I think you indicated that because 23 he, the Advocate Depute, declared himself satisfied as 24 you understood it that was one of the factors that led 25 you to adopt the approach that you didn't feel you had page 121 1 to go to an outside agency to have Y7 checked. Is that 2 right? 3 A. It was one of the factors, along with the factor that 4 Sheriff Crowe, who was also present, agreed with that 5 and, at the end of the day, if I presume Sheriff Murphy 6 monitored the subsequent developments and he could have 7 at any time made contact with me to turn round and voice 8 a stronger view on that. 9 Q. The fact is that what the media was doing, they were 10 making very clear suggestion that there had been a 11 mis-identification of Y7. That's right, isn't it? 12 A. Mr McKie was making a strong statement via the media to 13 that effect, yes. 14 Q. You would take it, of course, that members of the public 15 would be seeing that and wondering how on earth SCRO 16 could have made what they were led to believe was a 17 mistake? 18 A. Yes. 19 Q. And what I am suggesting to you, Mr Bell, is that an 20 obvious solution to that is in a very controlled, a very 21 official and a very public way the response would be, 22 "Let's just get rid of this issue once and for all. 23 Let's go to someone entirely independent who we're all 24 confident is experienced enough to give a view as to 25 whether or not SCRO were right or were wrong". Is that page 122 1 not an obvious thing to have done? 2 A. If I had gone to an independent and he had come back and 3 said it was Shirley McKie's fingerprint, I can sit with 4 confidence and say I don't think Mr McKie would have 5 accepted that. Again, to turn round and say we had a 6 jury that concluded things. We had circumstances. All 7 of these must be considered. 8 I understand what you're saying in hindsight, if you 9 turn round and say, oh, just go to an expert and he'll 10 tell you whether that's right. That simply didn't 11 happen. 12 Q. Mr Bell, there's another possibility that, isn't there, 13 you go to an outside expert who says it's wrong. Then 14 what would you have done? 15 A. Well, that situation didn't occur because we were 16 turning round and saying, in my mind, this would go to 17 an inquiry and that was the best place for it. 18 No-one -- for Mr McKie or a defence to engage other 19 experts to say this fingerprint is wrong and for SCRO to 20 then go onto the bandwagon and say this fingerprint is 21 right, here's individuals beyond Peter Swann and your 22 Malcolm Graham who will corroborate this, that wasn't 23 going to help resolve the situation. 24 It was a matter to turn round and say the next 25 logical step is the decision taken by the SCRO Executive page 123 1 to engage with the HMCIC. 2 Q. How quickly after the acquittal of Shirley McKie did you 3 get on the phone and say, "We need to have an inquiry 4 into this by HMCIC"? How quickly did you respond to 5 that? 6 A. You're suggesting that I did. I didn't. The matter was 7 developing in stages. It's not developing in at the 8 fast rate of speed you might want to put over. It's 9 developing in controlled stages and the next stage was 10 there was going to be a meeting with SCRO Executive 11 Committee at Stirling, the Chief Constables, there would 12 be an agenda, there would be a presentation on the case 13 and there would be a decision made and they did make a 14 decision. 15 Q. Can you remind me how long after the acquittal of 16 Shirley McKie that took place? 17 A. 7th February sticks in my mind for some reason but what 18 year? You would have to remind me of it. It's 19 mentioned there in the sequence of events. 20 Q. In the meantime of course the media view or Mr McKie's 21 view portrayed through the media there had been a 22 mistake was gathering speed, wasn't it? 23 A. Yes. 24 Q. In fact, it was becoming even more intense as time went 25 on. page 124 1 A. Yes. 2 Q. But you still felt you should let things take their 3 course and come down to an inquiry by the Chief 4 Constables or HMCIC or something of that kind; is that 5 correct? 6 A. Yes. I had taken some legal advice on the basis of how 7 I should respond publicly to the challenges that were 8 made and the advice was that don't get into debate, 9 there may well be an appeal with Asbury, there may well 10 be civil litigation, there's the position of the jury 11 findings and all of that was a consideration that I put 12 in the report. 13 Q. So things, of course, did move on and I will come back 14 to the HMCIC report in due course but at some stage, of 15 course, you became aware it was being represented that 16 there was a mis-identification with regard to another 17 print, QI2. 18 A. Yes, that was well down the line, yes. 19 Q. But at the stage that that happened, you must have 20 realised then it was a real issue over the public 21 confidence in SCRO? 22 A. Yes. 23 Q. And, again, at that stage I take it you would be most 24 anxious that you managed that in some way, it was being 25 managed, so that there should be some kind of check page 125 1 carried out with regards to that print? 2 A. I would turn round and suggest to you that by that time 3 HMCIC was active, potentially Mackay was involved with 4 it. I just don't know the exact date you are referring 5 to as to when that actually developed. 6 Q. I am not sure -- 7 A. It certainly was after the findings on the direction of 8 the Chief Constables' meeting in Stirling, as far as I 9 recall. 10 Q. Can I be clear about this too: following the acquittal 11 of Shirley McKie, you were communicating with other 12 bureaux throughout the UK and I think you said abroad as 13 well. Is that right? 14 A. Yes, bureaux wrote to me invariably asking for some 15 clarification of what had actually happened. 16 Q. Because they were concerned that the entire evidential 17 value of fingerprints could be undermined by what 18 was taking place in Scotland. 19 A. Yes. 20 Q. We have seen a letter or two, I think, if I come on to 21 them in a moment, of response. I think we looked 22 earlier at a document not on the database, it's a letter 23 of 28th October 1999 to -- it's that date but it's to JS 24 Evans the Chief Constable of the Devon & Cornwall 25 Constabulary, if we can have that, please. I would like page 126 1 to just ask you one thing, a point of detail. 2 If we can scroll down the page please to the last 3 full paragraph on that page do you see in the third line 4 towards the end of the line the word "The" and you see: 5 "The Scottish Criminal Record Office is bound by the 6 rule that witnesses for the Crown are not permitted 7 outwith proceedings to discuss evidence in support of 8 their views." 9 Do you see that? 10 A. Yes. 11 Q. That is something, I take it, that subsists for any 12 persons employed, certainly while still engaged with 13 SCRO or its successor; is that right? 14 A. Yes. 15 Q. We heard some evidence from Mr Geddes, whom I am sure 16 the name is known to you, that he had a meeting, as did 17 Fiona McBride, with Mr Les Brown? 18 A. Yes. 19 Q. The purpose for the meeting was to put his side of the 20 story over. 21 Would you like to confirm to us that the rule that 22 you are referring to at the bottom of that page is 23 something that would on the face of it be a breach of if 24 Mr Geddes and Ms McBride did so? 25 A. I take it that meeting happened after I left SCRO. I page 127 1 actively discouraged any of the staff discussing the 2 matter outwith the office on the basis of conjecture and 3 people putting their own interpretation on what was 4 being said. We refer to a rule -- I'd need to look to 5 see how the rule would be, if it was within the 6 discipline code of the organisation or not to work with. 7 But bear in mind they were actively consulting with a 8 UNISON representative on the detail and that 9 representative was present at a lot of meetings that I'd 10 had. 11 Q. I would like you to look at a couple of other documents, 12 please, and some reference in passing to the content. 13 These are documents that were passed to the Inquiry team 14 today. 15 Can I ask you to look please at a document that 16 bears to be from Grampian Police subject report 17 23rd November 1999. 18 MISS CARMICHAEL: Sir, I think I have the only copy of this. 19 It was passed to me at lunchtime. 20 THE CHAIRMAN: Does it require any redaction? 21 MISS CARMICHAEL: I have to confess that is not a matter to 22 which I have had time to give any consideration. I 23 considered the content briefly and asked questions 24 briefly about it. 25 THE CHAIRMAN: It can be redacted before it goes in the more page 128 1 public form, if it has to be. 2 MR SMITH: I must say, Chairman, I'm not sure there is 3 anything apart from the -- I don't think there is 4 anything that requires redaction on it. 5 THE CHAIRMAN: It's just if there's anybody's personal 6 details or telephone numbers on it. 7 MR SMITH: No, there doesn't appear to be anything other 8 than the name of the author but -- 9 THE CHAIRMAN: I don't think there can be any objection to 10 that. 11 MR SMITH: Mr Bell, I am sure you haven't seen this before 12 but what it bears to be and it's a report from a 13 Detective Inspector Andrew Rolph forwarded to the Chief 14 Constable of Grampian Police. I will read it out 15 because it is something you wouldn't have seen before. 16 It refers to the background we are all familiar with and 17 in the second paragraph is recorded: 18 "The case hinged on a fingerprint which had been 19 found within the premises ..." 20 So that is clearly the impression that this 21 individual had: 22 "Immediately following the evidence given by the 23 SCRO fingerprint experts, the defence called an American 24 expert who told the court that this fingerprint and 25 those recorded from Ms McKie were not identical and she page 129 1 was found not guilty. Detective Chief Superintendent 2 wrote to all forces regarding this case where he says 3 the Crown have made it clear that they are satisfied 4 with the SCRO experts and their presentation." 5 Again, I think just pausing there, you identified 6 certainly what appears to be Sheriff Murphy's opinion, 7 at least for the purposes of this Inquiry, that as far 8 as the presentation is concerned it did not appear to be 9 certainly as slick, if I can put it that way, as the 10 Americans? 11 A. I do take it back to the actual meeting of the 20th 12 where that doesn't get expanded on to the detail you're 13 giving now. 14 Q. I understand your position on that but reading on: 15 "Following SCRO fingerprint liaison officers' 16 meetings, I suggested to Chief Inspector Griffiths of 17 SCRO that these fingerprints should be made available to 18 all Fingerprint Officers in Scotland. However, Chief 19 Inspector Griffiths told me this was not possible as 20 SCRO were concerned regarding possible litigation as the 21 case had produced a not guilty result." 22 Can I ask you, did you ever have the view that that 23 was the reason why fingerprints were being restricted? 24 A. I've never seen this before. 25 Q. Yes. page 130 1 A. I had no knowledge of it prior to appearing here today. 2 I would not have condoned putting out the fingerprint of 3 Shirley McKie or the mark that was in question for 4 others to look at for the very reason I didn't do it 5 within SCRO Bureau on the basis that other officers 6 could then, if they agreed or disagreed but mostly if 7 they agreed with the SCRO, their standing would be 8 challenged then. So I would not have encouraged that. 9 Q. So just to understand it's better they don't look so 10 that they are neither in a position where they say, "I 11 don't think it's a match", or they say, "I think it's a 12 match", and then of course the cross-examiner will be 13 able to make some capital out of that either way, I 14 suppose. Is that right? 15 A. Yes. 16 Q. Reading on what the author of this note says: 17 "The fingerprints then became widely available 18 throughout fingerprint bureaux in England and the 19 general opinion was that the marks were not identical." 20 Were you aware of that? 21 A. I was aware that fingerprint marks were being circulated 22 from the Internet in particular, throughout UK. 23 Q. I think the next sentence makes clear, as far as we can 24 understand it, what's been distributed is different to 25 the Internet because it goes on to say: page 131 1 "The case has also now appeared on the Internet 2 which provides a summary of the case and copies of the 3 fingerprints. There is also a bulletin board for 4 experts to add their thoughts on the case. A number of 5 experts from around the world have put on their results 6 and feelings and all are of the opinion that this 7 fingerprint is not identical." 8 Then it says: 9 "Our experts at Grampian have also examined the 10 fingerprints in this case and are also of the opinion 11 that they are not identical." 12 Were you aware of that, that the Grampian experts 13 had come to a conclusion there was no identical analysis 14 between Y7 and Shirley McKie's print. 15 A. I was aware that some people in other bureaux had a view 16 that this was not an identification, yes. Again, I'm 17 turning round and saying it would be my opinion that 18 they were viewing that from the Internet images which 19 I'd been told and understand not to be best evidence. 20 Q. You were told that by SCRO; is that correct? 21 A. Well, as a police officer you need best evidence and 22 that's the original documentation so I didn't need that 23 to be told to me by SCRO but, yes, SCRO did confirm to 24 me that the images on the Internet, one of them had a 25 brush stoke on it that could not be referred to the page 132 1 original photographs that the Scottish Identification 2 Bureau had taken and that was suggested was only put on 3 after Mr Wertheim had looked at it. 4 So, you know, if this caused some damage it would be 5 difficult for people to form a view from that type of 6 print. 7 Q. So the position of people within SCRO was that only they 8 had the information that enabled them to come to a 9 conclusion. No-one else subsequently would be able to 10 use it. Is that your position? 11 A. No. I confined it to SCRO for good reason: to ensure 12 that the justice system could operate efficiently and 13 effectively and the defence lawyers could not get their 14 opportunity to try and make capital out of an ongoing 15 issue. I was satisfied -- I don't know what date is on 16 this memo but I was satisfied matters were progressing 17 and I was trying to manage and operate SCRO as best I 18 could during this particular period of time. 19 Q. Let's just go on to the second page. The date 20 incidentally on the first page is 23rd November 1999. 21 On the second page you can see that Detective 22 Inspector Rolph says this: 23 "In my view, there are two possible scenarios. 1. 24 The defence scene of crime fingerprint is fundamentally 25 different from that used by SCRO." page 133 1 So there's an acknowledgement of the point I think 2 you are making. He says this: 3 "If that was the case, I fail to understand why 4 Mr Bell has failed to make the SCRO scene of crime print 5 available to other experts in Scotland. There would be 6 no chance of litigation as Shirley McKie's prints would 7 not be required in any case they can be found on the 8 Internet. I am also surprised that SCRO would not take 9 the chance of replying at the end of the television 10 programme to make it clear that the print was in fact 11 different." 12 Leaving aside the TV programme stuff, you can see 13 that this individual is saying, "Well, let's see the 14 original stuff. Let's see what we're looking at". 15 Do you understand that's what he's suggesting? 16 A. Yes, and I've already said to you that the reason I was 17 not circulating it was, in my opinion, good grounds. 18 Q. The second numbered paragraph is the other option, that 19 SCRO experts have made a wrong identification. 20 He says: 21 "I feel that the only way this issue will be laid to 22 rest is by a full enquiry being held by another 23 force into both the fingerprint identification and 24 procedural and management issues surrounding it. Until 25 this happens, a large question mark will hang over SCRO page 134 1 and, indeed, the Fingerprint Service the Scotland." 2 Do you understand what his concerns were and what he 3 was trying to do to cut to the chase and get this sorted 4 out? 5 A. Yes, but I must admit I've never seen this memo from -- 6 I've never seen anything documented. I met with 7 Mr Rolph on a number of occasions. I had a clear 8 understanding that there was a view that not everyone 9 agreed with SCRO fingerprint identification and it was 10 my impression that that was based on Internet 11 examinations. So Mr Rolph is documenting that but I 12 never ever saw this. 13 Q. I'm not really asking about whether you saw it and 14 whether you reacted to it, I'm asking you about whether 15 you agree that his concerns and his suggestions appear 16 to be reasonable in the circumstances, do you? 17 A. I can understand his concerns but matters were being 18 dealt with. That's coming across as if matters were not 19 being progressed, that there was no intention -- I was 20 in debate with the Chief Constables and the Crown on 21 this matter to try and get some pathway ahead that we 22 could resolve it. 23 Q. Was one of the suggestions you were making trying to get 24 a pathway ahead an independent examination of the mark? 25 A. No, that was going to be a decision for the Executive page 135 1 Committee, of which I was part of. 2 Q. You were the manager of SCRO. Was it not important for 3 you to try and see how this could be advanced as quickly 4 as possible? 5 A. It was important to me to turn round and put the 6 circumstances to the Executive Committee in order they 7 could make a controlled judgment. The matter was also 8 referred to the Justice -- Scottish Justice Department 9 lawyers. They were involved in it. By that time I was 10 taking advice from employment specialists, lawyers in 11 Strathclyde, lawyers from the Scottish Executive and 12 this was -- you know, it's not a matter that this 13 suddenly developed and we should turn round and say, 14 right, let's have an inquiry. Who's got the right -- 15 I've got no right to turn round and make that under the 16 circumstances I had at the time, ie that there was four 17 identifications, that there was outside identifications 18 which, unfortunately, were not brought to the attention 19 of the court. There was outside defence identifications 20 not brought to the court. There was access to the locus 21 which should not have been permitted. The locus was not 22 secure. There was these areas of it that I had to 23 consider the bigger picture. 24 Q. Just while we're dealing with the question of defence 25 experts, as you say, you're clearly of the view the only page 136 1 difference between experts is something that really 2 ought to be detailed before the court; is that right? 3 A. Yes. 4 Q. Can you explain this then: if it is the case that within 5 SCRO there were a number, at least five individuals, who 6 were unable to meet the 16-point standard with regard to 7 identification, do you agree with me that that is 8 something that ought to be presented fully and fairly to 9 the court? 10 A. That's an approach that's never, as I understand it, 11 that was never ever made. My understanding of 12 fingerprint identification is that an officer comes to a 13 conclusion, it's an individual at the earlier stage. 14 The requirement was that 16 points had to be put down, 15 apart from serious or crucial cases, apart from 16 elimination purposes. That was my understanding. 17 Q. So the answer to the question is that if within SCRO 18 there were at least five individuals who were unable 19 to meet the court standard at that time -- 20 A. There were five -- 21 Q. Let me finish please -- then you consider it 22 was perfectly legitimate that that was not disclosed 23 either to the Crown or the defence; is that your 24 position? 25 A. Can I say to you to make it very clear: that was not page 137 1 hidden. You put it to me as if it was an approach that 2 we deliberately concealed that. That was not the 3 approach. It was just not the process. It was not the 4 way, as I understand it, of doing it. It was a matter, 5 the five individuals referred to, from recollection, all 6 agreed that the fingerprint was right. 7 Q. Can you tell me where it was disclosed please? 8 A. Sorry. 9 Q. Where was it disclosed? You say it wasn't hidden. 10 Where was it disclosed? 11 A. I'm not following, I'm sorry, I've lost the ... 12 Q. The five individuals, five plus individuals, who were 13 unable to reach the court standard, when and where and 14 how was that disclosed to the prosecution, to the Crown? 15 We will begin with that. 16 A. I have idea if it was disclosed to the Crown. At the 17 time of the case, the trial? 18 Q. At any time? 19 A. I have no idea. I've no knowledge of that at all other 20 than perhaps during the Mackay Inquiry which I've never 21 seen. 22 Q. Mr Bell, you say it wasn't hidden. I'm trying to work 23 out how we're supposed to know about it if nobody tells 24 us about it and that happens within SCRO offices. 25 A. Because I presumed that's the approach, the fingerprint page 138 1 experts would turn round and say to you, "I'm satisfied 2 with the identification. I didn't get 16 points. I got 3 a lower number of points but I don't need to get to 16 4 to make an -- I've satisfied myself well below that", 5 and it's my understanding that these officers all 6 satisfied themselves before that, albeit the court 7 requires 16 points. 8 Q. Albeit the court required16 points and I take it, 9 Mr Bell, you agree with me that if the defence counsel 10 of Shirley McKie was aware of that, was aware of the 11 fact that they had been unable to achieve the court 12 standard that would have been powerful cross-examination 13 material of those who said that they could find 16? 14 A. I can't disagree with you that it's an area that, no 15 doubt, the defence would explore. 16 Q. And, therefore, they'd want to be (a) recorded and (b) 17 disclosed to the Crown; that's right, isn't it? 18 A. But at that particular time neither the prosecution -- 19 the Crown or the prosecution led on that basis, as I 20 understand it. 21 Q. Might that be because they didn't know about it, they 22 didn't know about those who were unable to achieve the 23 standard? 24 A. You would have to ask them. 25 Q. That's why I am asking if it was disclosed to the Crown? page 139 1 A. I don't know if it was disclosed to the Crown. I think 2 I've made that clear to you. I don't know whether it 3 was disclosed to the Crown. You are talking about a 4 situation prior to my involvement in this case. 5 Q. Well, after you became involved as manager of SCRO would 6 you expect something like that to be disclosed to the 7 Crown? 8 A. While working through the situation I turned round and 9 brought in a proposal, a process, that if fingerprint 10 identifications were made and they went out and then it 11 was required for court evidence that that requirement 12 came back to the officers who made the original 13 identification. 14 If there was situations where there was a dispute or 15 a failure to fully identify a fingerprint, which had 16 gone out, then that would be bought to the attention of 17 the Procurator Fiscal so it would be made known. Again, 18 it was a matter of sometimes, presumably it would be a 19 matter of saying -- I'll perhaps clarify it by saying in 20 crucial and series crime it was my understanding that 21 SCRO could report to the Crown that they had identified 22 an individual for a serious crime but it was less than 23 the 16-point standard. 24 So from that I would turn round and suggest to you 25 that the Crown had awareness that identifications could page 140 1 be made with less than 16 points and the Crown being 2 Crown as they are would have that understanding and 3 could explore it at any time, in any case, in any 4 identification, and say, "Tell me, how many points are 5 involved in this?" So I put it back round to the Crown 6 to turn round and pursue that. 7 Q. Could we have a look at another document. This is 8 available for display. It is a similar looking letter, 9 dated 31st January 2000, again from Detective Inspector 10 Rolph. 11 I would like to go through it and ask for your 12 comments to see if some of the facts of this are 13 correct. I will read it reasonably slowly with you. It 14 refers to the previous briefing note of November 1999 15 but it is the one we were looking at earlier and a 16 subsequent letter from Mr Robertson, Chief Constable of 17 Northern Constabulary: 18 "On 23rd December 1999, I attended a meeting of the 19 Eight-Force Fingerprint Standard Working Group at 20 Glenrothes, which was chaired by Detective Chief 21 Superintendent Harry Bell, the head of SCRO. 22 "At that meeting, Mr Bell was asked if he would 23 allow the scene of crime print from this case to be 24 examined by an expert from outwith the SCRO, this he 25 repeatedly refused to do." page 141 1 Again, albeit we have heard your reasons for it, 2 would you agree they were asking you and you repeatedly 3 refused at that meeting? 4 A. I would accept that I was asked to do this and I put 5 forward that I would give the same explanation as to why 6 I didn't want to do this. 7 Q. I understand your explanation and I think you are 8 acknowledging that you did refuse to do so at that 9 meeting. But going on: 10 "Mr Bell quoted briefly from a letter which he said 11 he was going to send to all Chief Constables explaining 12 the SCRO stance on this issue but to date the letter 13 does not appear to have arrived at either the Grampian, 14 Tayside or Lothian & Borders, the three main fingerprint 15 bureaux outwith SCRO. In Mr Bell's letter to the deputy 16 Crown Agent dated 20th January 2000, he refers to the 17 scene of crime mark posted on the Internet having less 18 detail than the SCRO fingerprint and thus not revealing 19 16 characteristics in agreement. This is not the case. 20 The Internet mark does indeed show sufficient points for 21 a positive finding, however when making an 22 identification an expert must not only consider the 23 characteristics in agreement but also those which 24 disagree. The scene of crime mark found on the Internet 25 displays a number of clear characteristics which cannot page 142 1 be found on McKie's prints. 2 "Due to the Internet site, this case has become well 3 known in fingerprint circles throughout the world, 4 however, following the Frontline Scotland television 5 programme it has become very topical throughout Scotland 6 and I believe is doing enormous harm to the science of 7 fingerprints throughout the country." 8 Reading on: 9 "I have been informed that a documentary television 10 programme has been put together on this case and there 11 is a strong likelihood that it will be discussed at 12 ACPOS level. I felt that you should be briefed on the 13 current situation. 14 "At the first meeting of the Eight-Force Fingerprint 15 Standard Working Group, Mr Hamilton, Chief Constable of 16 Fife, put forward SCRO as a centre of excellence who 17 would administer quality assurance throughout Scotland. 18 I feel that the outcome of this case questions that 19 assumption." 20 Again, this seems to be from Andrew Rolph. 21 Can I ask you, was it conveyed to you at any stage 22 that other fingerprint bureaux were becoming extremely 23 concerned at what they were viewing as complete and 24 utter intransigence on the part of SCRO to try and get 25 this analysed outwith SCRO? page 143 1 A. Yes, I had an understanding there were individuals 2 within other bureaux who had this. The detail that 3 Mr Rolph alludes to there was not detail that he gave me 4 that I can recall. He attended the meetings as he said. 5 I don't recall that level of detailed discussion at any 6 of these meetings. I recall that the matter was raised 7 and I recall that I turned round and says that the 8 matter should not go outwith the bureau just now because 9 I firmly felt there would be an inquiry. This was not 10 going to go away, it was quite clear, and it was a 11 matter that would be best served by an inquiry. If that 12 was civil litigation or whatever, at least the two sides 13 would get an opportunity to explain their views. 14 Q. I would like to ask you, if I can, about the culture 15 within SCRO. I don't intend to revisit but as far as 16 the Mackay Robertson report is concerned I take it you 17 are aware a copy of that was made available to you 18 fairly soon after it was prepared? 19 A. Sorry, what report? 20 Q. Mackay Robertson report. 21 A. No, I had never seen that report. 22 Q. You've never seen the report? Well, can I ask you to 23 look please at a production with the Inquiry number 24 CO0005 and it is page 365 I would like us to go to, in 25 particular paragraph 15.7.6. We can see under the page 144 1 heading of "Hierarchy" what is said here is that: 2 "Rank in the scientific decision-making process is 3 inappropriate. The junior tunes his/her opinion to that 4 of the senior. Culture of the longer serving expert 5 'sees more'. Pressure on the junior to please the 6 senior." 7 Does any of this sound like an organisation at any 8 time that you were the manager of? 9 A. No. 10 Q. The next paragraph after the bullet points: 11 "When analysing the issues associated with the 12 environment and hierarchy in relation to the 13 arrangements at SCRO, a number of links can be 14 established." 15 I don't intend to read them all but the second 16 bullet point: 17 "The Marion Ross murder was a high profile case and 18 in respect of QI2 the need for a result was 19 significant." 20 And then second: 21 "Rank within SCRO is a recognised factor." 22 Again, is all this entirely news to you? 23 A. I still come back to the statement that I don't believe 24 a fingerprint expert at SCRO Fingerprint Bureau would 25 make an identification unless they were personally page 145 1 satisfied with what they were seeing on the mark. 2 Q. I would like you to look at a document -- hopefully, 3 with the personal details redacted -- another one that 4 was passed to the Inquiry. This is apparently a copy of 5 a letter sent to Jim Wallace who we think was the 6 Justice Minister at the relevant time on 7th August 2001 7 and you can see that this is apparently from 8 Mr Luckcraft and I think you acknowledge that he was 9 probably the individual that was being referred to in 10 another document we looked at. 11 I would like to go through this and ask you for your 12 comments as it is possible he may be invited to give 13 evidence. 7th August 2001, what he says is to 14 Mr Wallace: 15 "As a fingerprint expert with a high level of 16 professional integrity I consider it my duty to formally 17 report the following issues. However, the views are my 18 own and there is no intention to suggest that these 19 views reflect those of any other individual or 20 organisation. 21 "I was employed by the SCRO Fingerprint Bureau 22 between January 2000 and March 2001. I was the first 23 fingerprint expert to join the SCRO Bureau from an 24 external fingerprint bureau. Whilst I undertook my 25 training through Greater Manchester Police, qualifying page 146 1 at New Scotland Yard, I also brought my experience of 2 working in the Devon & Cornwall Constabulary and 3 Grampian Police fingerprint bureaux. All other 4 fingerprint experts within the SCRO Bureau were trained 5 internally. 6 "After commencing duty at the SCRO Bureau, I was 7 shocked and appalled at the level of malpractice. It 8 became evident that the bureau was not following the 9 National Fingerprint Standard. Upon raising my concerns 10 regarding the incorrect procedures, a senior police 11 officer suggested that I would be in beach of the 12 Official Secrets Act if I communicated my concerns to 13 external fingerprint bureaux. 14 "A few days prior to commencing work at the SCRO 15 Bureau, I was contacted by the then Head of Bureau, in 16 relation to the highly publicised Shirley McKie case." 17 I am assuming that would be you? 18 A. Sorry? 19 Q. That would be you, the -- 20 A. I don't know if you could assume that at all. Head of 21 Bureau would be the Chief Inspector. 22 Q. Well, we will not assume that. Let me read on: 23 "The Head of the Bureau indicated that the SCRO 24 Bureau faced significant problems as a result of the 25 Frontline Scotland television documentary reporting the page 147 1 McKie case. I was informed that the SCRO would maintain 2 their stance that the identification was correct and 3 that the independent experts involved in the case had 4 examined a different fingerprint. 5 "The McKie case is globally significant within the 6 fingerprint community and of great professional 7 interest. Two senior SCRO experts delivered a 8 presentation of the McKie identification to ACPOS. A 9 number of fingerprint experts, myself included, 10 requested to view this presentation out of professional 11 interest. SCRO management refused this request without 12 providing sound reasoning. I was naturally disappointed 13 at the lack of transparency and reluctance to face 14 scrutiny." 15 I will read the letter and come back to pick up a 16 couple of points: 17 "In April 2000 I had reason to challenge an 18 identification decision made by another SCRO expert. At 19 that time there was no arbitration procedure in 20 operation within SCRO Bureau. In this instance, there 21 was an attempt to exclude my findings from the process. 22 Clearly to circumvent or suppress the opposing opinion 23 of an experienced fingerprint expert in such a manner 24 must be deemed unethical and viewed with scepticism. 25 "Concerned with the manner in which this case was page 148 1 processed, I submitted a report to the Director of 2 SCRO. I received no formal response and was advised that 3 the case had been dealt with. The case docket vanished 4 and was not refiled. 5 "During my period of employment at the SCRO Bureau, 6 I consistently challenged mismanagement and malpractice. 7 Although remedial action was taken to achieve best 8 practice in some areas, other issues of concern were not 9 addressed. Whilst my observations forced some 10 improvements within the SCRO Bureau they were met with 11 hostility by management. I soon became the victim of 12 bullying, intimidation, harassment and victimisation. I 13 was verbally abused by a senior police officer and was 14 publicly humiliated at a social function. 15 "The McKie case has illustrated a culture of 16 institutionalised arrogance and mismanagement within the 17 SCRO which has brought the whole Fingerprint Service 18 into disrepute and has done a great injustice to the 19 many experts of high professional integrity within the 20 Police Service. I understand that a review of practice 21 and procedure within the SCRO is underway, however I am 22 compelling to report my experiences in the hope that 23 these issues will be satisfactorily addressed. 24 "I am greatly concerned for the welfare of the many 25 fingerprint officers who are professional and honourable page 149 1 in their duty to the UK fingerprint service." 2 You have not seen this before, of course, but as far 3 as Mr Luckcraft is concerned, if he was the individual 4 that you had cause to discuss matters with, I think you 5 referred to earlier who was named, does this broadly fit 6 in with in your assessment of his views expressed at any 7 stage to you or other management to your knowledge? 8 A. Again, not to the detail he's giving there. If he had 9 turned round and come in to me -- he's referring to a 10 report. I would need to see that report to make comment 11 on it. He's referring to a report that he'd submitted 12 to me. I'd need -- I mean, I remember speaking 13 to Mr Luckcraft. I remember an issue regarding a 14 fingerprint identification and the process involving 15 that and I was clear that he was not getting on with 16 individuals within the organisation but not to the 17 degree there. If I saw the report that he says he 18 submitted to me, then I might be able to inform you 19 better. 20 Q. Can I ask you to look at the Inquiry statement by Peter 21 Ablett, FI0083, please. Is the name Peter Ablett known 22 to you? 23 A. I think just from recollection, could he be involved 24 with the Durham Training Centre? 25 Q. I think he may at one stage but can I ask you to go to page 150 1 paragraph number 24. We can see just reading there what 2 is said in paragraph 24, he said, under the heading: 3 "Contact with SCRO before July 2000. 4 "I had contact with the SCRO in around 1990. I went 5 up to the SCRO offices in Glasgow on a number of 6 occasions, in particular to look at their Automatic 7 Fingerprint Recognition system. SCRO was one of the 8 first bureaux to get AFR. I got a sense of an authority 9 driven culture which was not open to challenge. At the 10 same time it was apparent that SCRO staff had a very 11 high opinion of the SCRO organisation. There was a 12 sense of an organisational arrogance." 13 Now I realise he's talking about in/around 1990 but 14 I take it you can see something of a theme developing 15 here between a number of individuals, particularly 16 Mr Ablett and Mr Luckcraft, an impression that there was 17 some degree of authority being placed, very much 18 hierarchical, which seems to be acknowledged in the 19 Mackay Robertson report. 20 Do you agree that appears to be what is being 21 suggested? 22 A. I agree that that is what is being suggested by these 23 individuals. I would come back to turn round and say 24 that I didn't see that when I was Director of SCRO and, 25 again, I would turn round and say that's 1990 this page 151 1 individual is speaking about. It's well back. I don't 2 know how things were then. 3 Q. Just a couple more questions if I may about the issue of 4 the advising other fingerprint bureaux of the position 5 being adopted by SCRO. I think what we have seen is an 6 indication, I think there are indications that not only 7 Grampian but Lothian & Borders carried out analysis and 8 their view was that there was no match between Y7; 9 that's right, isn't it, we have seen that. You are 10 aware of that aren't you? 11 A. I'm aware they wrote a letter to the Chief Constables, 12 to the SCRO Executive Committee based on that, yes. 13 Q. Of course we saw the letter earlier from Devon 14 & Cornwall Police to yourself indicating that their view 15 was that there was no match between Y7 and Shirley 16 McKie's fingerprint. 17 A. Yes. Can I refer back to the letter from Lothian 18 & Borders. To my understanding it is put out that it 19 was signed by 14 experts from that bureau and, if I 20 recall corrected, we subsequently engaged one of these 21 experts at SCRO and it was only then when we learned 22 that individual had never, ever agreed to sign that 23 letter, as I recall. 24 Q. So you are saying that maybe there was this one person 25 trying to stir it up; is that what you're suggesting? page 152 1 A. No, I'm not suggesting that at all. I'm agreeing with 2 you that there was a letter. I'm just saying it 3 wasn't -- it was purported to be signed by 14 experts 4 and my understanding was it wasn't signed by at least 5 one of them. That's my understanding. I'm not taking 6 away the importance of experts sending a letter to the 7 Chief Constables. 8 Q. Can I ask how many letters did you sent out to other 9 bureaux. How many throughout the UK? 10 A. I have no idea what number. 11 Q. Did you receive a single letter from any bureau that 12 said, "We actually agree with you, Y7 is Shirley McKie's 13 fingerprint"? 14 A. No, I didn't but I received verbal statements from 15 individuals who said that they agreed with the 16 identification. 17 Q. Can you tell me who these people are please? 18 A. Peter Swann and Martin Leadbetter. 19 Q. Right, we know about Peter Swann and Mr Leadbetter 20 already but is there anyone who was working at a bureau, 21 any of those who you wrote to, that said, "We agree with 22 SCRO's identification"? 23 A. No, none that I recall. I would suggest to you that it 24 was ... I'm not trying to make statements here to 25 explain away what you're saying but I recall Malcolm page 153 1 Graham in particular made identification regarding one 2 aspect of a fingerprint and Mr McKie attacked him 3 publicly on it to the extent that Malcolm Graham 4 retracted that, to the extent that subsequently later he 5 put it out again that he did agree that his 6 identification was correct. 7 That itself, in my mind, would have had some 8 influence on individuals taking any part in saying this 9 is an identification. I'm not saying there were others 10 but I'm just saying that might have been an influence on 11 others. 12 Q. So your position is that bureaux were holding back 13 because they were scared of Iain McKie? Is that what 14 you are saying? 15 A. No, I didn't say that. I said some individuals might 16 not -- I'm not suggesting to you that some bureaux or 17 individuals within bureaux didn't hold another view or a 18 personal view. I'm suggesting to you that there may 19 well have been some who just didn't want to become 20 involved and I could understand that because of the 21 treatment that I saw being given to Malcolm Graham in 22 particular. 23 Q. There is one other particular matter I would like to ask 24 you about that relates to the verification of the work 25 of the SCRO individuals. page 154 1 Can you tell me how many fingerprints of the 2 individuals concerned were checked. Did you say earlier 3 it was thousands? 4 A. It runs into thousands, yes. The Lord Advocate put out 5 a direction that all fingerprint impressions and 6 identifications coming out of SCRO should be examined by 7 an independent organisation prior to going to court and 8 that lasted for 13 months and that runs to -- as I 9 recall, it runs to thousands of fingerprint 10 identifications. 11 I personally caused that process to be applied to 12 all identifications made by the four officers for a year 13 either side of the McKie date and all of these were gain 14 confirmed as identifications from officers outwith SCRO. 15 So we had a process where the organisation had been 16 closely examined and all identifications had been 17 closely examined and there was no other errors alleged. 18 Q. Let's think about something a little hypothetically. 19 Imagine an agency examining fingerprints is audited and 20 over thousands of fingerprints they come out correct. 21 So we've got apparently competent, capable, worthy 22 individuals who are doing their job properly but in the 23 course of a single case, let's think hypothetically, 24 there were two errors -- two errors. 25 Now do you have any comment on how such a thing page 155 1 could happen? 2 A. You're saying there were two errors as a statement of 3 fact? 4 Q. Yes. 5 A. Again, I would come back to say that the four SCRO 6 experts, the Deputy Head, the Quality Assurance Officer, 7 the two independent experts, as I understand it, 8 retained their view that they did not make a mistake. 9 THE CHAIRMAN: But I think you are being asked to assume for 10 a moment that there were two errors. If there were two 11 errors it would be remarkable in -- 12 A. Yes, I understand the question. I understand the 13 question. Yes, okay. 14 MR SMITH: You would agree with me there's a very real 15 question mark over either something terrible has gone 16 wrong with the system, if there was two errors amongst 17 otherwise entirely competent and capable people or 18 something else had -- 19 A. If there was something wrong with the system I would 20 have expected these errors to appear elsewhere and 21 obviously they didn't with the tests that had been 22 carried out. So it comes back to turning round to your 23 point to say on this one occasion there was two alleged 24 errors put forward through SCRO. 25 Q. I would like to ask you, again, a particular matter page 156 1 about the charting enlargement machine and I think we 2 have seen some indication -- I don't need to go to the 3 documents -- about how a presentation would take place 4 in regard to the charting enlargement machine. 5 Can you help us with this: when was that machine 6 introduced to SCRO as a tool for presentation? 7 A. I can't give you -- it was before my time. I never 8 actually ever saw the charting PC working and in 9 operation. 10 Q. But were you aware of concerns being expressed by those 11 within SCRO about the quality of the material that it 12 was producing? 13 A. The only time I became aware of issues surrounding the 14 charting PC was when this case happened and the 15 discussions with -- the meeting of the 20th, if I recall 16 right. 17 Q. At that meeting what was being said and by whom 18 regarding the charting machine? 19 A. I'd need to go back to the memo. My recollection is 20 that there was statements being made about the charting 21 PC which indicated an area where there was a particular 22 point of identification that it tended not to land in 23 that specific area and this was an issue the American 24 experts had raised to turn round and attack the SCRO 25 evidence. As I understand it, the PC, the charting PC, page 157 1 was just a generic -- was an attempt to assist the jury 2 in how the experts looked at fingerprints but I have 3 personally never seen it working. 4 Q. So to the extent that if there was any concern prior to 5 Shirley McKie case by SCRO officers that was never 6 communicated to you as manager; is that the position? 7 A. My recollection is, no, I didn't have an awareness of 8 that. 9 Q. Again, if the charting PC had been in use for some time 10 prior to your arrival at SCRO, I take it you would 11 expect that if there were concerns about it what they 12 should have done is said, "Listen, this is useless. We 13 need to get our act together with it". Is that not 14 fair? 15 A. Well, I mean, this is before I came. My response is -- 16 that's what they had available. I don't know how they 17 did it before but that was, I presume, brought in as an 18 improvement to what they did before and, ultimately, it 19 appear that it wasn't that accurate or beneficial. But, 20 as I understand it, that wasn't the hard evidence. The 21 hard evidence was from the experts. That was only to 22 give an indication to the jury of how an expert 23 approaches their examination, how they approach it and 24 what areas they're talking about. 25 Q. So when the images presented to the jury showing lines page 158 1 going on to a particular latent fingerprint, they are 2 not matching up correctly and that is somehow designed 3 to show the jury how it is done, when it is patently 4 inaccurate; is that right? 5 A. I can't say to you having never seen it that it doesn't 6 match up sometimes. I accept from the circumstances we 7 have here that it certainly didn't appear to match up 8 totally in the McKie trial, I accept that, but I don't 9 know that it doesn't actually land on relevant points at 10 some stage in the process. But clearly we discontinued 11 it because it wasn't the best method of presenting. 12 Q. So what was put in its place after it was discontinued? 13 A. I think we spoke about PowerPoint, overhead PowerPoints, 14 and I think we reverted back to getting Identification 15 Bureau to produce enlargements, photographic 16 enlargements of the fingerprint, so it could be 17 more accurately identified, the area the experts were 18 talking about. 19 Q. Did you understand after the McKie case when you became 20 aware that this charting machine was not doing its job 21 properly all of the time, did you understand that the 22 SCRO officers were aware before the McKie trial that 23 this charting machine wasn't doing its job properly all 24 of the time? 25 A. I have no recollection of that, to be honest. page 159 1 Q. Did it appear when you were told about it that they had 2 suddenly discovered this because it was pointed out by 3 the Americans or were they unsurprised they were being 4 criticised or that the machine was being criticised? 5 A. No, I think they accepted when it was raised that that's 6 what they had to use and if there was something else 7 they would prefer, ie the photographic enlargements. 8 Okay, I accept there probably, there was an awareness 9 that this wasn't the best method but as I understand the 10 way they presenting their evidence was to give an 11 indication to the jury, "That's the area we're looking 12 at". 13 It's coming back to the question of how far do you 14 go as an expert witness, a fingerprint expert? Do you 15 try and engage with the jury to convince them that you 16 are an expert, do you put over your expertise and get 17 them to make the decision? It's difficult. 18 Q. Is it not quite easy that it's up to the jury to make a 19 decision on the facts as guided by an expert rather than 20 the expert just saying, "I am an expert. I'm telling 21 you it's a match". Do you not see the difference? 22 A. I acknowledge your word "guidance" and that's what I 23 understand the PC charting process to be. It's a matter 24 of guiding the jury to that area. You know, I'm not 25 trying to pick words here. I've never seen it working page 160 1 and I'm simply trying to give you an explanation in 2 response to your question. 3 Q. I take it that, as far as your position is concerned, 4 that as far as you are concerned, there would be no 5 reason why, in addition to the charting PC 6 documentation, the actual enlarged photographs couldn't 7 have been presented to the court at the same time, would 8 there? 9 A. No, I would accept it, if that had been pushed on. I 10 don't know what the practice was on the basis of we've 11 got the PC charting, we don't need the photographs. I 12 don't know what the position would be. 13 Q. Finally, I want to ask you some questions about the HMIC 14 reports that were prepared. The purpose of HMIC was to 15 carry out a full review, wasn't it, of the structures 16 within the organisation. 17 A. Yes. 18 Q. As far as the various dates are concerned, a couple of 19 documents that might help just to pin dates and 20 hopefully we can get these put up. These are from 21 websites and -- 22 THE CHAIRMAN: Is this actually the report, Mr Smith? 23 MR SMITH: It's not the report, sir. No, it's not. It is 24 an extract that might help with regards to the question 25 of the reaction to the HMIC report and it's the report page 161 1 of the Parliamentary Inquiry. 2 Can I ask for the first of these to be put up. It 3 begins with 2.1. I will explain what this is in a 4 moment. 5 THE CHAIRMAN: It would be helpful if you could give these 6 documents in advance when you give notice of the 7 questions you want to ask. 8 MR SMITH: Of course. 9 The first document is an extract from the Scottish 10 Fingerprint Service Action Plan for Excellence 11 commissioned by the then Justice Minister, Cathy 12 Jamieson, about the success of HMIC in the wake of SCRO 13 and their difficulties. Just reading from what is said 14 here at 2 1: 15 "HMIC completed a primary inspection of SCRO's 16 Fingerprint Bureau in 2000 and made 25 recommendations 17 and 20 suggestions for change." 18 I take it you were aware of the recommendations and 19 suggestions for change? 20 A. Yes. 21 Q. "In October 2000 the Association of Chief Police 22 Officers in Scotland established a Presidential Review 23 Group to co-ordinate the response of the Scottish Police 24 Service to the HMIC, finding that the SCRO Fingerprint 25 Bureau was not efficient and effective. To take the page 162 1 work of the Presidential Review Group forward, ACPOS 2 created a change management review team to undertake a 3 90 day scrutiny of the SCRO Fingerprint Bureau. 4 "Between then and the HMIC Primary Inspection of 5 2000 and ACPOS Presidential Review Group and the Change 6 Management Review Team made over 130 recommendations, 7 suggestions and findings. By May 2001 the Project 8 Management Team established by ACPOS to pursue the 9 issues raised by the various reports was able to hand 10 over responsibility to SCRO management for final 11 implementation of the 20 issues, the others having been 12 discharged." 13 Again, does that ring a bell that they were handing 14 over some still to be implemented? 15 A. Yes. 16 Q. "In the next primary inspection of SCRO in 2004, HMIC 17 discharged the remaining eight recommendations and five 18 suggestions that were outstanding from their review of 19 the SCRO Fingerprint Bureau in the previous year." 20 Do you recall in what was described as an Action 21 Plan for Excellence, an HMIC England and Wales 22 individual, Sir David O'Dowd? Was that an assessment of 23 the success or otherwise of the implementation of the 24 2000 recommendations and suggestions? Do you recall 25 that? page 163 1 A. I think what you're talking about here is documentation 2 that appeared after I retired. 3 Q. The documentation may be after but can I ask to look at 4 the other item that was handed up, which is an extract 5 from the Justice 1 Inquiry findings. I'm interested in 6 particular in 702. What they said was: 7 "The Committee also concludes [that's the Justice 8 Committee] that a number of failings identified by HMIC 9 in 2000 have simply not been properly addressed by SCRO 10 management. These failings include but are not limited 11 to: structural and leadership issues; staff sickness 12 absence; identification procedures and quality 13 assurance. The Committee recognises that the Action 14 Plan for Excellence is the latest attempt to tackle 15 these failings." 16 Now, can I ask whether you have any comment on that? 17 Whether you agree with any suggestion there was a 18 failure to implement fully and fairly and 19 enthusiastically the recommendations made by HMIC? 20 A. No, I think you will find there's documentation to say 21 that everything was completed. It's my understanding 22 that when I retired in April 2005 that everything that 23 HMCIC, recommendations and suggestions had all been 24 completed and properly discharged and that was 25 acknowledged. That's my recollection so I find it page 164 1 strange to see this now. 2 Q. Just one last matter I would like to ask you about and, 3 again, it is a point of detail about immediately 4 following upon the acquittal of Shirley McKie. I think 5 you explained to us earlier that Mr Mackenzie and 6 Mr Dunbar were asked, I think possibly by you, to 7 examine the disputed fingerprint; is that right? 8 A. That's correct, yes. 9 Q. Was that before the May 1999 meeting? 10 A. That was before 20th May meeting, yes -- before the 11 meeting with Sean Murphy? 12 Q. Yes. 13 A. Yes. 14 Q. Can I ask you to look at a document CO1230, please, 15 which should be, I think, the statement taken from 16 Mr Mackenzie to the Mackay investigation. Again, I'm 17 just trying to find the paragraph. I am sorry, it is a 18 paragraph beginning "My next involvement with the case". 19 I am trying to track down. 20 Yes, if you stop there please on that page. We can 21 see: 22 "My next involvement in the case with regards to 23 comparison work did not take place for a further two and 24 a half years August 1999 when I viewed for the first 25 time enlargements which had been returned to the bureau page 165 1 from the office of the Procurator Fiscal, Glasgow after 2 completion of the perjury trial of Shirley Cardwell 3 (McKie)." 4 I take it you agree with me that appears -- if that 5 statement is correct, Mr Mackenzie's recollection must 6 be wrong if you think you are right? 7 A. Yes. You're going back a number of years and it's my 8 recollection that I went to the meeting with Sean Murphy 9 having had the fingerprints re-examined. That's my 10 recollection. 11 Q. Are you able to accept from me you are wrong about it? 12 A. No. 13 Q. You are absolutely sure that he was there? 14 A. I'm not prepared to accept I'm wrong about it. I'm just 15 saying that's my recollection. I'll stand to be 16 corrected if it can be shown that that was not the time 17 but it's my real recollection. It's only a 18 recollection. I think I would get it done before we had 19 the meeting so I'd go into the meeting to turn round and 20 say to Sean Murphy -- in fact, is it not referred to in 21 the minutes of that meeting? 22 Q. I can't remember myself -- 23 A. I would like it to be looked at then because -- 24 Q. We will try and get it ... I think it is CO0034. 25 A. Yes, it is. page 166 1 Q. Now, I don't know whether you want to just flick through 2 as you read various bits and see if you can identify the 3 page. 4 A. Can you go to the next page, please. (Pause) 5 I don't actually see it referred to there but it's 6 generally was my recollection that I had this done 7 before I would have the meeting with the Crown. I think 8 it would be sensible to do it that way. So that's my 9 recollection. 10 Q. I don't think anyone criticises you for -- 11 A. I accept that. 12 Q. You accept it may not have been examined before -- 13 A. No, I would reiterate I'm more inclined to believe that 14 I caused the examination to be made ahead of that 15 meeting in preparation for the meeting. 16 Q. I take it that would be documented somewhere. There 17 must have been a mini report of some kind by -- 18 A. It was a verbal -- my recollection is it's a verbal 19 request to the officers and it's a verbal response they 20 gave. There was a time factor. If you go from the 21 trial concluded, I think, potentially 14th May. So six 22 days later I'm in a meeting with -- I arrange a meeting 23 with the Crown and the prosecuting advocates. So there 24 was a very short window of opportunity there. So I 25 would imagine that I did it in that period. That's my page 167 1 recollection in all this. 2 MR SMITH: No further questions. 3 THE CHAIRMAN: Mr Holmes, would you prefer to wait until 4 Tuesday? 5 MR HOLMES: I can, sir, yes. I do have an application to 6 make. 7 THE CHAIRMAN: Well, we have ten minutes but I don't want 8 you to feel under pressure. Let me know what the points 9 are you want to raise. 10 MR HOLMES: Certainly, sir. The first matter I would like 11 to raise is the nature of the criticism that was being 12 made of the SCRO experts. 13 The second matter I would like to raise is the work 14 done by the American experts or rather his understanding 15 of what the work done by the American experts was. 16 The third relates to the implementation of the 17 recommendations in the Black Report. 18 The fourth relates to a passage from Mr Shepherd's 19 Inquiry statement that has been put to Mr Bell. 20 The fifth relates to the letter that has been put to 21 him that's not yet been lodged but has been apparently 22 authored by Mr Luckcraft. 23 THE CHAIRMAN: I think you aren't going to cover that in 24 five minutes so perhaps we should wait until Tuesday. 25 Are you available on Tuesday morning? page 168 1 A. I will re-arrange things and now make myself available. 2 THE CHAIRMAN: We will get some indication. Are there going 3 to be any other applications with regard to this 4 witness? 5 MISS GRAHAME: I have no application to make at this stage. 6 MR MACPHERSON: I don't have any. 7 THE CHAIRMAN: I will not hold you to it; it just to give me 8 an indication. How long -- 9 MR HOLMES: I should say, sir, that there are perhaps one or 10 two questions on each of these matters that I've 11 mentioned; so it should not be terribly long. 12 THE CHAIRMAN: Is that all right if I ask you to come at 13 10.00 on Tuesday? 14 A. Tuesday, yes. 15 THE CHAIRMAN: And from the sound of it it shouldn't take 16 much more than half-an-hour. 17 A. I'll make arrangements to accommodate that. 18 THE CHAIRMAN: Thank you very much. Tuesday then at 10.00. 19 (3.25 pm) 20 (Adjourned until 10.00 am on Tuesday, 7th July 2009) 21 22 23 24 25