page 1 1 Tuesday, 7th July 2009 2 (10.00 am) 3 HENRY WOODS BELL (continued) 4 MISS CARMICHAEL: Sir, I think Mr Holmes was about to 5 cross-examine Mr Bell. That was where we closed on 6 Friday. 7 Cross-examined by MR HOLMES 8 Q. Mr Bell, you will recall on Friday that there were a 9 couple of matters that I'd expressed an interest in 10 asking you questions about. Hopefully I shouldn't take 11 up too much of your time. 12 The first is about the American experts that were 13 employed by the defence in Ms McKie's case. You say in 14 your statement that you had concerns about the quality 15 of the American experts. Can you explain what you meant 16 by that? 17 A. They'd obviously been involved in the trial and at the 18 conclusion of the trial of McKie there was some enquiry 19 made as to their background and we couldn't establish 20 their integrity in relation to their experience of 21 fingerprints. I think that related to Mr Wertheim in 22 particular. 23 Q. Is that in relation to his qualifications or in relation 24 to work that he had undertaken? 25 A. I think a combination of both. I don't think we could page 2 1 establish courses or his degree of experience; whereas 2 in Scotland it was, I think, five years at that 3 time that we qualified individuals at. I think he had 4 been a traffic policeman, if I recall correctly, and 5 thereafter he had completed at least one course that we 6 knew of, a very short one. Thereafter it's a bit fudged 7 as to exactly what he did. 8 Q. You mentioned the presentation skills of the American 9 experts. I think you said that they were out of the 10 witness box and walking up and down in front of the 11 jury. So is it fair to say that your concerns related 12 to the substance of their evidence rather than to 13 presentation? 14 A. Yes. 15 Q. By contrast with that, the criticisms that have been 16 made of the Scottish experts, particularly immediately 17 following Ms McKie's trial related purely to 18 presentation and not to their ability to compare 19 fingerprints; is that correct? 20 A. That's quite correct, yes. 21 Q. You personally I think you said in your evidence caused 22 the work of the original four experts who identified Y7 23 to be independently checked for, I think you said, a 24 period of a year before the identification of Y7 and a 25 year after. Is that correct? page 3 1 A. That's correct, yes. 2 Q. Who was the independent checker that carried that out? 3 A. We were engaging with PSNI fingerprint experts and also 4 Metropolitan experts and I think some from maybe 5 Manchester, I can't recall exactly now, but it was one 6 of these groups that actually took on or at least a 7 combination of groups of these people that took on these 8 checks. 9 Q. When you're speaking about a two-year period can we take 10 it that there are a large number of identifications 11 involved over that time? 12 A. Yes, indeed. There would be a large number of 13 examinations to be compared. 14 Q. And the findings of the independent checkers you engaged 15 were that there was 100 per cent accuracy for the year 16 before and the year after; is that correct? 17 A. Indeed, that was correct. 18 Q. Did those findings of themselves cause you to be 19 suspicious that there were two purported mistakes within 20 one case? 21 A. Well, certainly if there had been a series of procedural 22 problems I would have expected it to show up somewhere 23 in other cases. 24 So it did concern me that, one, we had an 25 identification which had been challenged and disputed page 4 1 quite fiercely and then came the second one with Asbury. 2 That became a challenge too. So I was concerned that 3 the only focus are these two fingerprints. 4 Q. Was it ever suggested to you that any other fingerprints 5 in this case were being challenged? 6 A. If I recall correctly there was potentially only one 7 other print of substance and that was found at the front 8 door on a Christmas tag and that hadn't been challenged, 9 if I rightly remember. 10 Q. Your evidence I think has been to the effect that the 11 documentary, Frontline Scotland documentary, may have 12 been the catalyst for the questioning of QI2. 13 Have I got that right? 14 A. If QI2 is the Asbury print, yes, that would be the way 15 of it. 16 Q. Do you recall claims that were made during that 17 documentary that Mr Wertheim in particular identified or 18 rather excluded Ms McKie as the donor of Y7 particularly 19 quickly? 20 A. Yes. He dismissed it as if he could do that from first 21 thought, from first glance at the print he could readily 22 dismiss it as hers. 23 Q. He gave a time during the documentary of something like 24 60 or 90 seconds; do you recall? 25 A. I can't recall that in particular but I do recall the page 5 1 fact that he was in a position to put over that he 2 dismissed it readily. 3 Q. Having seen your own experts work, what do you make of 4 claims like that? 5 A. I think they would have detailed to the court or to the 6 Inquiry their method of approach and how they view the 7 print before they even go into examining anything in 8 detail and it's an art, it's a skill and it's an 9 approach that in the manner they do it's the same 10 approach all the time, visual and then looking for 11 detail. So it would be a lot longer than anything 12 Mr Wertheim referred to. 13 Q. So even a suitably qualified expert looking at a 14 fingerprint form for them to come to a conclusion in 15 that short a space of time would you say that's 16 careless? 17 A. I wasn't fully aware of his overall skill factor. I'm 18 not convinced that he had that ability to do that at 19 that time and if it had been one of the experts from 20 SCRO that had been able to discard it as quickly as 21 that, I would have been concerned. I think there has 22 been reference made here to the test that's carried out 23 under Mr Ferry when he was the Director and some of the 24 experts who were asked to look at the print found that 25 they weren't saying it wasn't there but they were more page 6 1 willing to look at it under controlled conditions the 2 following day. So they weren't prepared to look at it 3 and just venture an opinion. 4 Q. Do you have any knowledge aside from Mr Wertheim's own 5 qualifications, do you have any knowledge of the 6 facilities or the materials that he was provided with 7 when making a comparison of Y7? 8 A. I wasn't there at the time so I really would just be 9 talking third-hand on that. He would be given access to 10 the same material as the experts at SCRO would be 11 looking at, I believe. I believe he took his own 12 photographs and made his own examination of potentially 13 the door post. 14 Q. According to Mr Kent's letter to you, Mr Wertheim also 15 claimed that the scene security at the house was so 16 tight that Ms McKie -- it would have been impossible for 17 her to enter. We've heard a great deal of evidence and 18 whichever witness you choose to accept, that simply is 19 not the case. 20 Is it fair to say this is yet another example of an 21 exaggerated claim by Mr Wertheim? 22 A. Well, I don't see how he could be in a position to make 23 that comment. It's not something that I would expect 24 from a fingerprint expert about a crime scene. They may 25 well look at a crime scene to get an understanding of page 7 1 the layout and the setup but I don't see that they would 2 venture that type of an opinion about the security of a 3 loci. 4 Q. You have referred in your own letter to the Chief 5 Constables to disinformation. Is this the kind of thing 6 that you were speaking about at the time? 7 A. That coupled with the fact that there were statements 8 being made that there was not one other expert in the 9 world who believed it was Shirley Ms McKie's print when 10 it was quite clear that individuals who were making 11 these statements understood that there were at least two 12 independent defence experts, as I understood it to be, 13 who had formed that opinion, plus I had spoken to a 14 third person who had confirmed to me that it was her 15 print -- verbally. 16 Q. If I can move on to the training and the working 17 practices of the Scottish experts, in 1997 I think you 18 have mentioned the training period for an expert was 19 five years at SCRO. Is that correct? 20 A. It was five years when I joined in 1998. I presume it 21 was the same in 1997, yes. 22 Q. And that's a period of full-time training? 23 A. Yes. 24 Q. That is before any expert is ever allowed to give 25 evidence in court? page 8 1 A. Indeed, yes. 2 Q. After that training period is over it doesn't end there, 3 there is continuing assessment; is that correct? 4 A. Could you repeat that, sorry? 5 Q. There's continuing assessment after that training period 6 is over; is that correct? 7 A. Yes. 8 Q. During the training period itself of course there would 9 be examinations? 10 A. Yes. 11 Q. And obviously there would be peer review of the work 12 simply by nature, by its very nature because you've got 13 more than one expert checking any one identification; is 14 that fair? 15 A. That's the constant theme of it, yes. 16 Q. Are you aware of whether SCRO was on its way to being 17 ISO accredited when you joined in 1998? 18 A. It's when we looked to establish a Scottish Fingerprint 19 Service and we brought in the Head of the 20 Scottish Fingerprint Service we were working towards 21 that through Mr Dunbar and Mr Mackenzie and we 22 subsequently achieved that, yes. 23 Q. Do you know when that was? 24 A. Some time after 2001, potentially. 25 Q. With all of that in mind, Sheriff Crowe in his statement page 9 1 has expressed a view that since civilians were brought 2 in the service has become de-professionalised. That 3 can't be right, can it? 4 A. Well, I don't know what context he's actually meaning 5 that in. Beforehand there had been police officers 6 involved in the fingerprint exam and, in my opinion, it 7 was right to separate the roles and to concentrate on 8 people closely focusing on these skills entirely ie the 9 policeman doing the policeman's job and the expert doing 10 a fingerprint expert job, not doing a Scenes of Crime 11 role or a dual role responsibility. 12 Q. Bearing in mind about the concerns you voiced about the 13 American experts, with what you were able to discover 14 about Mr Wertheim's training and that he had attended, 15 as far as you were aware, one very short course how does 16 that stack up against the experts employed at SCRO at 17 the time? 18 A. Well, if that's the comparison that could be made, then 19 he didn't compare with experts at SCRO. 20 Q. As to the actual working life of an SCRO expert, you 21 were read during your evidence on Friday a letter which 22 apparently has been written by a Mr Luckcraft. 23 Do you recognise any of the Glasgow Bureau in what 24 was said in that letter? 25 A. No. page 10 1 Q. Did junior experts during their working lives question 2 senior experts? 3 A. My understanding -- I wasn't in charge of the SCRO 4 Fingerprint Bureau. I was Director of the whole 5 organisation. So I didn't have a day-to-day role to 6 play within the bureau. That was a Chief Inspector and 7 Robert Mackenzie as deputy. 8 Again, I keep coming back to say that my 9 understanding is that experts are trained on the basis 10 that they have to speak to what they see and if an 11 expert, junior, trainer or whatever had a view I'm quite 12 confident they would express their view. Whether it was 13 right or not they would be given guidance on but the 14 whole ethos was to give your view on what you found. 15 Q. So from what you're saying experts -- and that would 16 include the most junior of experts -- were expected to 17 and were encouraged to maintain their independence? 18 A. Yes, that was an important aspect of the process, I 19 believe. 20 Q. Can I ask what were relations like between the Glasgow 21 Bureau and the other fingerprint bureaux in the UK? 22 A. It was quite strained even before this case. I think 23 I've already said that it was looked upon that the 24 Glasgow Bureau, the SCRO Glasgow Bureau, was located in 25 Pitt Street in Glasgow within Police Headquarters at page 11 1 Strathclyde and that was seen as that SCRO Fingerprint 2 Bureau was a department within Strathclyde and when 3 Mr Hamilton's report via Leishman was starting to get 4 aired, they were looking towards an A4 standard group 5 plus looking towards a Scottish Fingerprint Service. 6 I chaired some of the meetings and I did visit some 7 of these bureaux and it's quite clear that they were not 8 wanting to engage openly with the Glasgow Bureau. They 9 wanted to remain independent, in my mind. But they were 10 to go down that path. That was a path that the Chief 11 Constables, the SCRO committee had agreed on and 12 ultimately they came together and whether they were 13 happy with it or not they were at least making under the 14 auspices of the head of the Scottish Fingerprint Service 15 with a view to forming a true Scottish Fingerprint 16 Service. 17 Q. The officers that identified Y7 or of the officers who 18 were suspended in this case, I think you have said they 19 were unhappy about their suspension and were very keen 20 to get back to work? 21 A. That's correct, yes. 22 Q. You have said in your statement that their families were 23 put under pressure as well. Can you expand on that? 24 A. Well, I think with the media -- I think everybody that 25 was involved in this case was under pressure and that page 12 1 transferred itself to everyone's family to a higher or 2 lesser degree. 3 There is no doubt that the four Fingerprint Officers 4 who were suspended went through a trauma. There is no 5 doubt that the two officers who were suspended from 6 operational duties found that very hurtful and I'm sure 7 their families did too. 8 Q. When you say the two officers who were taken off 9 operational duties, which two officers are you -- 10 A. Mr Mackenzie and Mr Dunbar. 11 Q. So can you confirm that neither of those officers were 12 actually suspended from work they were simply taken off 13 operational duties? 14 A. They were never suspended from work, no. 15 Q. The Black Report I think you said recommended that all 16 of these officers be returned to full operational 17 duties. Is that correct? 18 A. Yes. 19 Q. Was that 2000? 20 A. I would be struggling to give you a date. It was some 21 time around then. 22 Q. But in any event that was not something that ever 23 happened? 24 A. That they were returned ... no, that's something that 25 didn't happen, no. page 13 1 Q. One final question I have to ask about any pressure that 2 might have been put on these officers is in relation to 3 outside pressure. Was there ever an incident reported 4 to you after the Tulliallan conference? 5 A. Sorry after the ...? 6 Q. The meeting at Tulliallan attended by Mr Mackenzie and 7 Mr Dunbar? 8 A. I think Mr Mackenzie spoke to me. I think he had some 9 conversation with one of the foreign experts outwith the 10 actual formal meeting and there may have been some sort 11 of words there but the detail I quite honestly can't 12 remember but if that's what you're referring to ... 13 Q. So you don't recall the detail of that incident? 14 A. Robert Mackenzie, if that's the incident, did tell me 15 about it but at this moment in time I'd need to be 16 reminded of the conversation. 17 Q. There's just a couple of further matters that I'd like 18 to clear up. The first relates to the fingerprint known 19 as QD2. 20 Were you ever informed that that was being 21 challenged? 22 A. I think again it's difficult to recall all this time 23 back when I learned of that but I think it may well have 24 just come out in one of the BBC programmes, but I could 25 be wrong in that. page 14 1 Q. If you're not aware of when you learned of it you won't 2 be aware of when the officers themselves were informed 3 that there was a third fingerprint being challenged. 4 A. I can't give you any exact detail on that, no. 5 Q. In relation to Y7, you have already said in your 6 evidence that there was good reason in your view not to 7 invite any further speculation about the mark. Is that 8 correct? 9 A. Yes. It was on the basis that we had four experts who 10 were getting challenged and I didn't see the benefit in 11 other experts within the bureau or within the Scottish 12 Fingerprint Service at that time looking at it. If they 13 come out with a view that it was Shirley Ms McKie's I 14 doubt that would be accepted; they would just be 15 contaminated. 16 If you look at the situation, I was dealing with 17 this as it developed. First of all, we'd a case not 18 proven -- a not guilty verdict. I held a meeting. It 19 developed along that stages until such times as the 20 HMCIC came and then it moved on to another arena. 21 Q. What then was your view when you learned in Mr Kent's 22 letter that Mr Wertheim was, in fact, distributing his 23 own photographs of Y7? 24 A. Well, again that fitted in with what was appearing on 25 the Internet and I did understand a photograph of page 15 1 Wertheim's had a mark on it which was not in the 2 original productions. It looked like -- well, it was 3 put to me it could be a brush mark and that this could, 4 in fact, cause some damage to some areas that had been 5 looked at. 6 Q. So is it fair to say that inviting views from others on 7 the basis of his own photographs is yet more unhelpful 8 speculation? 9 A. Yes, it certainly didn't help. It didn't help, the fact 10 it was on the Internet, it didn't help the fact it 11 appeared to be different photographs, it didn't help the 12 fact it appeared the photograph was damaged or had been 13 marked. 14 MR HOLMES: That is all I would like to ask. Thank you very 15 much, Mr Bell. 16 THE CHAIRMAN: I did ask on Friday if there were any other 17 applications. I take it there is no change to that 18 position. 19 MISS GRAHAME: There is no change. 20 MR MACPHERSON: No, thank you. 21 MR SMITH: Sir, I wonder if, arising from questions that 22 have just been asked, I can ask two matters. I realise 23 it is unusual but it will be appreciated that -- 24 THE CHAIRMAN: What are they? 25 MR SMITH: They are relating to the question of page 16 1 qualifications and experience of other experts. There 2 has been a fairly pointed attack on Pat Wertheim's 3 qualifications and I wanted to ask -- 4 THE CHAIRMAN: On Mr Wertheim? 5 MR SMITH: On Mr Wertheim's qualifications. I wanted to ask 6 the witness quite simply whether any investigation was 7 made relating to the other expert, Mr David Grieve, and 8 the second matter is the question of the ability to 9 comment within a short space of time whether he is aware 10 of the position of Mr David Ashcroft who I also 11 understand examined the print and came to a conclusion 12 very quickly. 13 THE CHAIRMAN: Perhaps we can just clarify so that if you 14 would like to ask those two questions. 15 Further cross-examined by MR SMITH 16 Q. Mr Bell, just these two matters. You aware Mr David 17 Grieve, an American, also gave evidence in Shirley 18 McKie's trial and we understand for many years has 19 worked in the Chicago Police Department, I think. 20 Was any investigation carried out to find out what 21 his qualifications and experience were? 22 A. It's my recollection that he was known and his 23 credibility within the fingerprint world was known, but 24 the detail of that I can't recall at this time. But he 25 was certainly a name that was known in the fingerprint page 17 1 world, yes. 2 Q. But to the extent any suggestion of Pat Wertheim -- we 3 will no doubt come back to that with other witnesses -- 4 but to the extent there was any suggestion that Pat 5 Wertheim was ill-qualified, there was no suggested 6 whatsoever that David Grieve wasn't qualified to make a 7 comment there wasn't a match between Y7 and Shirley 8 McKie's print, was there? 9 A. I personally wouldn't challenge Mr Grieve's 10 qualifications. The experts still had a concern as to 11 why he was not identifying it, but I understand your 12 question. Mr Grieve's credibility and standing seemed 13 to be quite sound. 14 Q. Thank you. 15 The other question is how quickly the view was 16 reached by Pat Wertheim that there was not a match 17 between Y7 and Shirley McKie's fingerprint. 18 I would like to ask you this: are you aware of the 19 name David Ashbaugh? 20 A. Sorry? 21 Q. David Ashborn. 22 A. I've heard the name, yes. 23 Q. He's written a book on ridgeology, hasn't he? He is a 24 highly respected fingerprint analyst with the Royal 25 Canadian Mounted Police, you are aware of that? page 18 1 A. I'm aware he's in the position, yes. 2 Q. If we are subsequently to hear evidence that David 3 Ashborn was provided with a copy of Y7 and a copy of 4 Shirley McKie's print and in poor lighting, having, in 5 his words, consumed at least two pints of beer without 6 any equipment available to him he was able, within a 7 couple of minutes, to conclude that there was no match 8 between Y7 and Shirley McKie's fingerprint. I take it 9 that is something you wouldn't be able to comment on? 10 A. The only thing I would venture there is if one of my 11 experts said that they've looked at this fingerprint in 12 poor lighting and have consumed two pints of beer, I 13 would be asking them to look at it again or get someone 14 else. I'm not taking away from what you're saying about 15 the individual's credibility but I can't agree with 16 someone saying, "I do it in poor lighting and I do it 17 under the influence of alcohol". I don't think that's 18 the proper approach that should be taken. 19 Q. I think you can take it he checked it subsequently and 20 his initial view was one he adhered to so if you accept 21 that from me all I am trying to point out here is if 22 someone is looking for a difference between two marks 23 they may see a difference very, very quickly. Now would 24 you accept that from me? 25 A. I would accept the second version your giving me that in page 19 1 good lighting and sobriety he's able to turn round and 2 give an opinion based on his experience. I would accept 3 that, yes. 4 MR SMITH: Thank you, Mr Bell. 5 THE CHAIRMAN: At various stages in your evidence you were 6 asked about your attitude towards the integrity of those 7 working under you who of course were the fingerprint 8 experts and I want to just get it quite clear what your 9 attitude was, because I can appreciate when you arrived 10 you felt morale was not good because the pay scales 11 weren't right and various matters like that and I 12 imagine that morale was not improved by all this about 13 Y7 and so on. 14 When you speak about the integrity, I can understand 15 that as meaning that I accept that those experts 16 honestly believe in the result that they've achieved. 17 A. Yes. 18 THE CHAIRMAN: You could also take the view that I believe 19 that these people are right and everybody else is wrong 20 who takes a contrary view. 21 What was your position personally -- and I 22 appreciate you may have had to, as it were, stand up for 23 the people under you or felt obliged to -- but what was 24 your own personal position? 25 A. My personal position was in the first instance I was not page 20 1 a fingerprint expert. 2 THE CHAIRMAN: I appreciate that. 3 A. I was new into SCRO, as a new director. I'd never 4 worked with or met any of these people really 5 beforehand. I had seen them in the building in passing. 6 If there was something amiss or wrong when I came in, 7 then I looked to me being the person that could 8 potentially look at that and sort it, and I didn't 9 detect that. I found that, yes, morale was low but 10 there was reasons for all of these things. But I 11 certainly would not say that the integrity dropped in 12 any shape or form because of the surrounding factors. 13 These people, if they had anything, would stand by an 14 identification that they had made correctly. They 15 wouldn't be influenced by -- I was satisfied with that. 16 I looked for these things. I looked on the basis that I 17 was an experienced detective officer and I never 18 detected any of that approach at all. 19 With Mr Wertheim finding on the fingerprint and his 20 qualifications which were being alluded to, it didn't 21 concern me when other fingerprint experts in Scotland 22 couldn't find the mark was the same as Shirley McKie's 23 but by that time, as I said before progressions -- I had 24 dealt with the initial impact of a not guilty case, a 25 challenge of fingerprints, meeting with the Crown, page 21 1 putting the reports to the Chief Constables and SCRO 2 Executive Committee to explain my actions and the thing 3 progressed at that stage. 4 I'll come back to say to you that when I dealt with 5 that, I was aware that there was at least three other 6 experts, independent outside SCRO, who agreed with their 7 findings. So I had a, sort of, cover in that side of 8 things, that the integrity should be reasonably sound or 9 sound on the basis of that. I hadn't engaged them. The 10 defence had engaged at least two of them was my 11 understanding. 12 THE CHAIRMAN: Is the position that you had no reason to 13 believe that your experts were other than right in the 14 decision that they reached -- 15 A. Yes. 16 THE CHAIRMAN: -- with regard to these two prints. 17 A. My understanding of the case was that the SCRO experts 18 had identified Shirley McKie not to incriminate her but 19 to eliminate her from the Inquiry and subsequent action 20 taken resulted in her ending up in the High Court, was 21 taken outwith their opinion. It was based albeit on the 22 fingerprint evidence -- I understand that -- but there 23 was all these other surrounding factors that Shirley 24 McKie had been at the loci, without rehearsing them all 25 again but these were the factors I considered. I didn't page 22 1 just make it on the basis these are SCRO fingerprint 2 experts so they will be right. There were sound factors 3 and circumstances that supported the conclusions that I 4 came to and that's what I fed back to the Chief 5 Constables. 6 THE CHAIRMAN: Thank you very much and thank you for coming 7 back again this morning. I am sorry, you had to return. 8 (The witness withdrew) 9 Just before we move to the next witness we obviously 10 have quite a lot of business to get through, we hope, 11 this week and I would be very keen that the notice of 12 questions is given in a timely way, that lines of 13 questioning that you want to pursue are given to the 14 Inquiry team in good time and, secondly, the other point 15 is that any documents must be given to the Inquiry in 16 advance so that they can be properly catalogued and not 17 just brought in, if you can avoid it, ad hoc. 18 I appreciate in exceptional circumstances I have to 19 bend it slightly but I don't want it to become a habit 20 that documents are handed in just at the last minute. 21 So now we now proceed to the next witness. 22 MR MOYNIHAN: Yes, sir, the next witness is Mr Kent who's in 23 the hall just now. 24 TERENCE KENT (affirmed) 25 THE CHAIRMAN: And your full name? page 23 1 A. Is Terence Kent. 2 THE CHAIRMAN: Take a seat please, Mr Kent. 3 Examination-in-chief by MR MOYNIHAN 4 Q. Good morning, Mr Kent. 5 A. Good morning. 6 Q. Mr Kent, you have provided the Inquiry with a statement. 7 Do you have a copy of that statement? 8 A. Indeed, yes. 9 Q. That is a statement you have had an opportunity to 10 revise? 11 A. Yes. 12 Q. And to sign as being a correct account of your evidence? 13 A. Correct, yes. 14 Q. If, as we progress, there are any inaccuracies in your 15 statement please feel free to correct them as we 16 proceed. 17 A. Okay. 18 Q. What I want to do is to start with a topic just to ask 19 your opinion about and that's the use of powders in 20 Scenes of Crime examination. 21 We understand that there is a manual or was in 1997 22 a manual of fingerprint development techniques and that 23 you were responsible for that manual? 24 A. That's correct, yes. 25 Q. One of the questions that we have been asked to address page 24 1 with the evidence here is whether there was a recognised 2 proper order of application of powders, in particular 3 aluminium and black powder, and witnesses have referred 4 to the Home Office guidance on the subject. 5 Would that be the manual I just referred to? 6 A. So far as I'm aware, yes. Certainly the Home Office 7 itself didn't issue any other guidelines. Obviously 8 there might be Force orders or local instructions but 9 the only Home Office advice would have come from my 10 research team at Sandwich, yes. 11 Q. At the time in 1997, would you have understood there to 12 be a regimented instruction in relation to the correct 13 order in which powders were applied at scenes of crimes? 14 A. No. 15 Q. What was your understanding at that time of the 16 guidance? 17 A. Because of limited statistical data on the performance 18 of powders, although in other areas of fingerprint 19 chemistry, if you like, we did issue very rigid 20 instructions but with powders, because of the lack of 21 data, we actually made some, if you like, rather vague 22 guidelines. We indicated that we thought that metallic 23 flake powders such as aluminium and bronze, we thought 24 those to be more sensitive than granular black powder 25 and we indicated that where sensitivity was important page 25 1 that aluminium was probably the powder of choice. But 2 we certainly didn't give a very firm recommendation and 3 it was really left to local Scenes of Crime departments 4 to make their own decisions because there are other 5 issues, depending on their photographic equipment and 6 expertise and light sources and training. It was really 7 left to local individuals and heads of scene of crime 8 to, if you like, to make that final decision. 9 Having said that, I would suggest that probably in 10 the UK most police forces at that time were using 11 aluminium as the first powder at a crime scene provided 12 that there were no other problems, no other issues with 13 regard to that scene. There were certain types of 14 surface, for example, if you were examining, let's say, 15 a kitchen where there was a lot of grease film over the 16 surfaces aluminium would tend to smear all over the 17 surfaces so quite often a SOCO would say, "Well, I'm 18 going to use a granular powder rather than aluminium 19 powder at this particular situation". 20 There were at that time I think probably three or 21 four police forces that, as a preference, used black 22 powder and I think there were still one or two police 23 forces that used white powder as a preference at the 24 time. So if that answers the question ... 25 Q. The reason for the aluminium being, from your point of page 26 1 view, the powder of choice, what was the reason for it 2 being the powder of choice? 3 A. Sorry? 4 Q. Why was aluminium preferred by you or -- 5 A. Because despite the fact I said there was limited data, 6 we had carried out small in-house laboratory experiments 7 and it did indicate that -- or the results of the odd 8 pieces of work we'd done over the years indicated that 9 the aluminium flake was more sensitive at detecting 10 fainter deposits, fainter fingerprint deposits. 11 This was something that made quite a lot of sense 12 from a physical interpretation point of view because the 13 black powder is granular, it's quite a large spherical, 14 vaguely spherical, powder which can brush off the 15 surface whereas the aluminium flake, the individual 16 particles were something like 100th of the size of the 17 black powder and, being flat, once they stuck to the 18 surface they tended to stay there. So the theory seemed 19 to fit with the results of our experimental data. But 20 at that time, as I say, there wasn't a huge amount of 21 data so our instructions and advice were not rigorous. 22 Q. Without going into too much detail, has research 23 subsequently confirmed what that rough data initially 24 was suggesting? 25 A. Yes. I mean, with fingerprints it's difficult to be page 27 1 absolutely categoric because the chemistry of individual 2 fingerprints varies between individuals day-to-day, 3 hour-to-hour so it's very difficult to say precisely 4 what technique will work under any possible 5 circumstance, so we have to look at statistically 6 analysed data and yesterday I reminded myself by looking 7 back at some work that I had initiated before I left the 8 Home Office and there was a report put out by Helen 9 Bandy and Andrew Gibson from the Home Office in, I 10 think, 2006 when they specifically looked at the 11 efficacy of aluminium and black powder and a number of 12 other powders on painted wooden surfaces and, very 13 roughly, if we look at fingerprints one day old 14 aluminium was detecting about twice as many fingerprints 15 as black powder. If we look at fingermarks a week old 16 we get roughly a two to one ratio, roughly twice as many 17 marks developed with aluminium, so that endorsed really 18 what I'd said in my original statement. 19 Q. Before we go on to a question of looking at combinations 20 of powder if we just stick with aluminium powder, 21 assuming that Scenes of Crime Officers have decided to 22 use it first, would the manner of correct application 23 perhaps involve multiple applications of aluminium 24 powder? 25 A. Well, not so much multiple but a sort of continuous page 28 1 development. Our advice with aluminium is to use 2 preferably a glass fibre brush that's fairly lighted 3 loaded with aluminium and gradually lightly brush the 4 surface and build up any deposit using a strong light to 5 detect any ridge detail that came up and being careful 6 not to overdevelop by getting too much aluminium on the 7 surface. 8 Of course, it very much depends on how much 9 fingerprint deposit you've got there and the nature of 10 the background, how quickly the contrast might appear or 11 disappear. 12 Q. We have heard some evidence that the Scenes of Crime 13 Officers would begin by an initial application of 14 aluminium powder and then if there was an area of 15 suspicion for the presence of a fingerprint they might 16 in that area build up the deposit slowly. Would that be 17 consistent with -- 18 A. Yes, absolutely, yes. 19 Q. Would it therefore follow conversely if on the initial 20 dusting there was no apparent evidence of a fingerprint 21 that the Fingerprint Officers would be correct in not 22 building up further in the area there was no initial 23 evidence? 24 A. Well, bearing in mind that at any scene of crime there 25 are time constraints. If you've got, literally, perhaps page 29 1 hundreds of square metres of surface to powder, there's 2 only a certain amount of time that you would devote to 3 any square centimetre, if you like, and it's a matter of 4 fine judgment, really, as far as the SOCO is concerned, 5 how much time he spends building up that treatment on 6 the surface. 7 Q. Moving on then to the question of black powder, would it 8 be consistent with guidance and your understanding of 9 the practice at the time also that there might be a 10 scenes of crimes examination where there is a sequential 11 application of different powders? 12 A. Certainly a number of people do carry out that practice 13 and have done over the years. I wouldn't like to 14 comment actually on the success rate. I have had people 15 tell me they've found better fingerprints after using 16 black powder after aluminium and vice versa even. But 17 it's not something that a significant amount of research 18 has been done. 19 There is a proposal, I understand, at the Home 20 Office now to look at sequential treatment but we don't 21 have any real hard data on that, I'm afraid. 22 Q. So you've no data but at least anecdotally you have 23 heard examples of people using black after aluminium and 24 saying that they discovered a print? 25 A. Well, that they've discovered better -- had better page 30 1 results. I'm not absolutely sure -- I mean, I've never 2 seen any photographic proof of this effect. 3 Q. If we move then to what you describe in your own 4 statement you were given the piece of wood on which Y7 5 was found, you were also given some statements by some 6 of the Scenes of Crime Officers to understand the 7 sequence of the examinations? 8 A. That's right, yes . 9 Q. You understood that the Scenes of Crime Officer said 10 they had started initially with aluminium powder and 11 then progressed to the application of black powder? 12 A. That's correct, yes. 13 Q. You describe in paragraph 13 of your statement, if you 14 could have a look at paragraph 13, you describe a 15 feeling of unease on your examination of the piece of 16 wood in particular because you couldn't find much trace 17 of aluminium powder. Is that the case? 18 A. Well, yes, I was certainly I surprised. I think in most 19 cases, if I had seen an exhibit in the past that had 20 been examined with aluminium powder, I would normally 21 expect to see some traces. I would normally see some 22 traces on it and I did look at the area of Y7 with a 23 microscope. I didn't see any obvious signs of powder 24 but there may be a number of potential reasons for that. 25 Q. You say you didn't see obvious signs of powder, do you page 31 1 mean obvious signs of aluminium -- 2 A. Aluminium powder, sorry, yes. 3 Q. Can you explain what the reasons might be for the 4 absence of evidence of aluminium powder in that area? 5 A. Well, bearing in mind that -- I mean, I wasn't using a 6 particularly sensitive way of detecting the aluminium. 7 There are more sophisticated electro-microscopy one 8 could use to determine whether there was any trace of 9 aluminium. I was using a simple optical microscope 10 expecting to see some reflective aluminium particles. 11 Now, I mean, there are a number of possible reasons 12 for not observing aluminium. In no particular order 13 there is possibly applying the black powder brushed 14 off any aluminium powder; possibly applying black powder 15 obscured the aluminium powder; possibly there wasn't 16 very much aluminium powder on the surface anyway, and 17 possibly the surface had not been aluminium powdered for 18 one reason or another. 19 It could happen purely by accident, of course, a 20 busy crime scene with people examining, more than one 21 SOCO examining different areas of the locus, then it's 22 not impossible that an area is missed. Somebody says to 23 somebody else, "Oh, I powdered the doorframe", and they 24 mean they powdered in inside of the doorframe but not 25 the outside of the door frame. Of course powdering page 32 1 a doorframe is really inside, outside and then the 2 doorjamb so you have effectively three surfaces to 3 treat. 4 Anyway, so they are the sort of three or four 5 possible scenarios. 6 Q. If I take what I think was the third one, the 7 possibility that there may not have been much in the way 8 of aluminium powder in that area, one of the Scenes of 9 Crime Officers, Mr Hunter, suggested that one of the 10 reasons that black powder was used sequentially after 11 the aluminium is because the aluminium powder appeared 12 not to have taken in this area and that's again the 13 Scenes of Crime Officer describing the matter. 14 Would that be consistent with what you observed? 15 A. It's a possibility, yes, and as I indicated earlier 16 because substrates and fingerprints vary, it's not 17 impossible, for example, that there was some 18 contamination on the surface or that the surface was 19 exceptionally clean so that when the aluminium was 20 applied, very little or none of it adhered to the 21 surface. 22 Q. If I add in looking at the circumstances what we know of 23 the particular area where Y7 was found, first of all, it 24 was on the doorjamb at the entry to the bathroom and, 25 therefore, perhaps subject to condensation and the likes page 33 1 and, secondly, in very close proximity, a matter of feet 2 away from the door into the kitchen of the house so that 3 there might be the possibility of residue from the 4 kitchen. 5 Would those be factors that again might explain the 6 inability of the aluminium powder to take? 7 A. I think I would probably be foolish to speculate in 8 those sort of circumstances. If you have a kitchen 9 nearby you might expect more contamination so you might 10 expect more aluminium to stick to the surface, but there 11 are other issues. For example, if the doorframe had 12 been washed or wiped recently, that would almost 13 certainly reduce the amount of powder that would stick 14 to the surface -- aluminium powder. 15 But of course I suppose the most surprising thing 16 from my point of view is that there was a fingerprint 17 deposit there that was developed by the black powder and 18 quite a nice fairly intense black powder mark appeared 19 but for some reason the aluminium powder didn't stick to 20 that deposit. That's what I was puzzled about. 21 Q. Can you explain why you were puzzled there had been such 22 an apparently fine development of a print with black 23 powder that had not been developed by using aluminium? 24 A. Simply because the physical adhesion of powder to an 25 essentially fatty fingerprint deposit is a fairly simple page 34 1 physical process and, you know, it's not obvious why the 2 deposit should be so substantial that these granular 3 black powder particles adhered to it but the fine 4 aluminium powder didn't. 5 Q. That led you in the report that we are just about to 6 turn to to conclude that, in a sense, the likelihood was 7 that the Y7 print had been first deposited after the 8 aluminium dusting. 9 A. Well, that was a possibility. But, obviously, there 10 were other possibilities, one being that it hadn't been 11 aluminium powdered. 12 Q. Or that the aluminium powder had, for whatever reason 13 not taken -- 14 A. Yes, or it had been obscured and was, in fact, still 15 there underneath the black powder. 16 Q. One of the other things you mentioned would be also the 17 possibility that the light source just wasn't good 18 enough to detect the faint initial tracings with 19 aluminium powder? 20 A. That's another possibility but we were talking earlier 21 about building up the fingerprint and the expert would 22 fairly quickly go over the surface, normally with a 23 strong light and if they observed any ridge detail 24 appearing they would then stop in that area and 25 concentrate on building up that fingerprint. page 35 1 If, as they scanned past, they hadn't got enough 2 light or it was in an awkward position and they didn't 3 spot the tiny traces of aluminium appearing on the 4 surface they may have missed it. It may be that the 5 next day when it was treated with the black powder that 6 the SOCO might fortuitously have spent more time 7 brushing that area and developed up the latent print 8 that was still there. I wouldn't want to be 9 categoric -- it's impossible to be categoric about that. 10 Q. You have also for the purposes of this Inquiry been told 11 that we understand that at the same time as the Scenes 12 of Crime Officers found Y7 with black powder they also 13 found some other prints of the deceased, again with 14 black powder that hadn't developed using aluminium 15 powder. 16 Again to be strictly simplistic about it, it's 17 unlikely the deceased's prints got on to the surfaces 18 after her death, after the aluminium powder. Does the 19 fact that there were some of the deceased's prints found 20 at the same time with black powder simply come back to 21 your puzzlement it should be the black that finds these 22 and not the aluminium? 23 A. Yes, it does puzzle me. It's something that would bear 24 further investigation. I've never seen those marks I 25 don't believe so I don't know if they are as strong as page 36 1 Y7 and if very faint marks came up that might be more 2 readily explained than this quite strong fingerprint of 3 Y7 but I don't know what those marks were like of the 4 deceased. 5 Q. I will pick that particular point up in the context of 6 your report if I may and if I turn then to ask you about 7 your report, if I could have brought up please on to the 8 screen HO0053. 9 If I tell you that this is a letter taken from your 10 file. 11 A. Yes, I recognise it. 12 Q. Given to us by the Home Office. I do actually have your 13 file here in the hall if you require access to it. 14 A. No, there's no problem. I recognise it. 15 Q. You recognise this as the letter of instruction that 16 came to you from the Procurator Fiscal Service? 17 A. I do, yes. 18 Q. Before the letter of instruction, do you recollect what 19 contact there had been with you? 20 A. Well, I can't be precise because, you know, at that time 21 I was getting lots of phone calls from lots of people 22 around the country asking for advice, but from memory at 23 the time the person that I probably had most contact 24 with in Strathclyde was Iain Hogg who I think was the 25 Chief Inspector, head of Scenes of Crime. page 37 1 It was somebody who knew me that rang up and said 2 did I know anything about planted fingerprints and went 3 on to ask me whether I would be prepared to look at this 4 exhibit. I suspect it was probably Iain Hogg but I 5 couldn't be absolutely sure, and subsequently of course 6 we arranged for the exhibit to be brought down to me and 7 at some stage I received this letter. 8 Q. Is the subject of planting something of which you had 9 professional experience? 10 A. No. There are very few people round the world who have 11 actually seen very many planted fingerprints and I did 12 make it clear in my conversations that all I could do is 13 actually look at the fingerprint and knowing a bit about 14 what sort of artefacts one might expect in a synthesised 15 or copied or moulded fingerprint, I could look to see if 16 there was anything, if you like, unnatural about the 17 fingerprint. But I certainly couldn't have given a 18 guarantee that it was genuine and I did explain that in 19 discussion. 20 I mean, I was familiar with a number of papers, Pat 21 Wertheim had published some papers, I was in contact 22 with a researcher in Israel who had been collecting data 23 on forged fingerprints. There were a couple of cases in 24 the US of forged fingerprints that had been reported. 25 So I thought I knew roughly what sort of things to page 38 1 look for and it's a question really of there being 2 nobody else that had any more experience, to be honest. 3 Q. So when the exhibit, if I call it that, or that piece of 4 wood was provide to you, did you understand that what 5 you were being asked to do was to give advice in 6 relation to the possibility of planting within the 7 limitations that you just explained? 8 A. Yes. 9 Q. Did you have any appreciation at that time that your 10 advice was being sought on other matters? 11 A. No. 12 Q. If we look at the letter of instruction that has come 13 from your file, it is dated 12th March 1998, I see that 14 in paragraph 10 of your statement -- if we could bring 15 up paragraph 10 -- you say in the first sentence: 16 "I do not recall any discussions as to the identity 17 of the donor of the fingerprint Y7. Identification 18 falls outside my areas of expertise. I'm looking at my 19 letter of instruction now and I'm slightly puzzled by 20 points 5 and 6 within that letter." 21 Do you see that? 22 A. Yes. 23 Q. If we could have highlight please 1 to 6. What I 24 actually want to do is just to discuss with you the 25 understanding of the various points and the exercise you page 39 1 were being asked to undertake. 2 Plainly point number 1, a narration of your 3 expertise in relation to fingerprints is asking for a 4 CV, which I think you provided? 5 A. Yes. 6 Q. An analysis of fingerprint planting and manufacture; is 7 that consistent with the task that you thought you were 8 undertaking? 9 A. Yes. 10 Q. Point number 3, how would you have construed point 11 number 3, the quality of the fingerprint Y7? 12 A. Looking back at it now I would assume that both 3 and 4 13 were really asking whether there was anything about the 14 mark that made me think that it was other than a natural 15 fingerprint. That would be my interpretation of it but 16 whether that was the intention, I'm not absolutely sure. 17 Q. What I am actually more interested in is your 18 interpretation of the instruction. We will come back 19 and ask about other conversations. So would I be 20 correct, therefore, in understanding that you would have 21 perceived paragraphs 2, 3 and 4 to go together? 22 A. Yes. Yes I think so. 23 Q. Paragraph number 5: any comment that you may wish to 24 make on the SCRO 16-point comparison of fingerprints and 25 the statistical basis for duplication of fingerprints. page 40 1 What did you understand by that at the time? 2 A. I have to say that I can't remember exactly what my 3 actions were, which is why I've indicated as such in my 4 statement. However, I do know what I would have done. 5 At the time I assume there would have been some 6 breakdown in communication between, let's say, Iain 7 Hogg, who contacted me originally, and the Fiscals' 8 Office and, you know, I had no experience of -- I didn't 9 know the person who had written to me, I don't think I 10 had any communication with them. So I thought somehow 11 they got hold of the wrong end of the stick, basically, 12 and they got the idea that I was a fingerprint expert 13 and could express an opinion. 14 Now, I'm quite sure what I would have done under 15 these circumstances -- and it wasn't the first time -- 16 is I would have picked up the phone and said, "Look, I 17 can do 1, 2, 3 and 4. I can't do 5 and 6", and I would 18 have probably said something like, "If you want advice 19 on the statistics of 16-point comparison you need to 20 talk to Christophe Champod in Lausanne", who was the 21 only person at the time doing any sort of research in 22 that area and I would have said, "You need to find 23 another fingerprint expert to give you an opinion on 24 identity because I wouldn't be recognised in either an 25 English or Scottish court". But I don't remember having page 41 1 that conversation but I must have had it because I would 2 not have ignored two requests in that letter. 3 Q. Would you have a recollection of with whom you would 4 have had that conversation? Could it have been Mr Hogg? 5 Could it have been the individual, Mrs Greaves or do you 6 not know? 7 A. I would automatically have phoned up the author of the 8 letter. 9 Q. If I bring up then your report and if I can leave on the 10 left-hand side of the screen perhaps points 1 and 6 and 11 then also bring up alongside it CO3876, paragraph 9. So 12 we will start there to begin with. That is 3876.03. 13 This picks up the point that we have just been 14 discussing earlier on about the aluminium powder, black 15 powder and your conclusion in the report was: 16 "From the above it would seem likely that the 17 fingerprint was deposited after any application of 18 aluminium powder." 19 A. Yes. 20 Q. Then I leap over much of the discussion which was 21 related to planting and then take you on the right-hand 22 side of the screen please to the next page and if we 23 could on the next page, please, highlight paragraph 33, 24 which is the second last paragraph. 25 What you say in paragraph 33 is: page 42 1 "I am not qualified to comment on the identity of 2 the fingerprint but it is quite clear and contains a 3 number of well defined characteristics which I would 4 expect to be sufficient for an identification to be 5 made." 6 That was the limit of what you actually said? 7 A. Yes. 8 Q. That, at least if one is being pedantic, one might think 9 is dealing with point 6 in the list or did you see 10 points 5 and point 6 as really being taken together? 11 A. Well, I mean, I think my point 33 actually could be 12 interpreted and probably was meant to be answering 13 question 4 -- sorry, question 3 -- about the quality of 14 the fingerprint. 15 Q. So you did not in the written report, if that is 16 correct, deal at all with points 5 and 6? 17 A. No. 18 Q. And would that be because you would recollect that you 19 had a telephone call with someone to say that you were 20 not the person to ask points 5 and 6? 21 A. It's because I simply did not regard myself as qualified 22 to answer those questions. I would never have done 23 that. I mean, I may have had views but I would not 24 consider myself an expert to give evidence in court. 25 Q. It may be just simply me but the way that it's been page 43 1 understood so far -- and again this may be transferring 2 from what you intended as the author to what people may 3 have read -- that at least reading paragraph 33 4 individuals read you as clearly saying that you could 5 not answer paragraph 6? 6 A. Sorry, I'm not quite clear what you're getting at. In 7 33 I'm saying I'm not qualified to comment on identity 8 but there are characteristics which I would expect but I 9 don't know. I'm not saying that I know because I 10 haven't counted the number of characteristics, I'm not 11 an expert. I had dealt in the past with far worse 12 fingerprints although there were other issues which we 13 may come on to as to whether it was one fingerprint or 14 two fingerprints or some sort of double-touch or 15 something. 16 So there were other issues. Perhaps I was a little 17 too confident there indicating it was identifiable. 18 Q. I think we may be at crossed purposes. What I am 19 suggesting to you is that someone reading your report, 20 looking at paragraph 33, because you used the 21 phraseology you cannot comment on the identity, you 22 cannot comment on the identity of the fingerprint, would 23 see that as mapping point 6 of the instructions which 24 asked you to comment on the identity of the fingerprint? 25 A. Yes, okay. page 44 1 Q. So, therefore, what one might see is you very clearly 2 saying in your report that you cannot because of your 3 lack of experience in the field, you cannot answer 4 point 6. Is that a fair reading? 5 A. Yes. 6 Q. But in any event what you tell us is you did not regard 7 yourself as appropriately qualified to answer points 5 8 and 6? 9 A. That's right, yes. 10 Q. We have heard and I have said to you that I will come 11 back to the sequence of the powders and the fact the 12 deceased's prints were found at the same time. 13 Do you have a recollection of anyone coming back to 14 you after your report was produced to ask you any 15 supplementary questions at all? 16 A. I really don't, no. 17 Q. Because we have seen some correspondence among the 18 Fiscals or between Fiscals where one Fiscal -- that's 19 the prosecutor -- had observed that the deceased's 20 prints were found at the same time as Y7 and, therefore, 21 questioned whether it could truly be the case that this 22 catalogue of prints came on only after the aluminium 23 dusting. So a question was raised about that but you've 24 no recollection of any of that? 25 A. I'm afraid I don't recall that, no. page 45 1 Q. If I can move on in relation to this same topic, you 2 tell us and the first reference I have is paragraph 47 3 of your statement and you are going to June 2000, you 4 had been carrying out some testing yourself at about 5 this time. 6 Was that related to the question of image quality? 7 Paragraph 47, page 16. 8 What you said in paragraph 33 of your report -- and 9 I take your point you weren't studying it for this 10 reason -- you thought there was sufficient detail in the 11 image of Y7 to admit of identification by a fingerprint 12 expert. 13 Is that something that at this time you have been 14 studying what level of detail required to be in an image 15 before fingerprints officers could actually make a 16 comparison? 17 A. No, that wasn't the purpose of trial. What we were 18 looking at was what quality of image a fingerprint 19 expert needed to be able to, let's say, resolve an 20 individual characteristic. We weren't concerned with 21 how many characteristics they needed to make an 22 identification, which is a rather different issue. 23 The thrust of the work was in the move from using 24 film to digital cameras. We needed to know, if you 25 like, in simple terms how many pixels per inch were page 46 1 needed to capture the scene of crime mark at to record 2 all of the data that the expert would then use in their 3 interpretation. So, no, I mean at no time were we 4 measuring the number of characteristics needed for an 5 identification. We were measuring the quality of the 6 image needed to give the expert let's say unequivocal 7 information or the best information to see a 8 characteristic if it was there. 9 Q. So you were trying to in effect have a quality check. 10 If you were moving from film to digital images, what 11 quality of image would give fingerprint experts in 12 effect the material they require for their purposes? 13 A. Yes, indeed. 14 Q. If I take you really just to paragraph 57 of your 15 statement, do you encapsulate when the test was analysed 16 what was found was for any one scene of crime 17 fingerprint there was a range of observations by 18 fingerprint experts? 19 A. Yes, that's correct. 20 Q. Just again for the avoidance of any doubt, you were not 21 asking fingerprint experts to compare a known mark and 22 an unknown mark? 23 A. No, we were not, no. 24 Q. You were simply asking them to examine an image of a 25 mark and to report to you how many characteristics they page 47 1 could observe in the mark? 2 A. That's correct. 3 Q. What you found on that test was the range that you 4 indicate in paragraph 57 of observations by fingerprint 5 practitioners. 6 A. Yes. 7 Q. Plainly the object of this test was to decide on the 8 quality of digital image and I assume you reached 9 conclusions in relation to that? 10 A. We did, yes. 11 Q. But did the observations in this trial cause you any 12 sort of deeper or other concern about the fingerprint 13 process? 14 A. Yes, it did. I mean, it actually reinforced doubts that 15 I'd had probably for a decade or more. That trial was 16 actually done in '95/96 and the original analysis done 17 in '96 solely revolved around the image quality issue. 18 It wasn't until some time later -- and I'm not sure when 19 it was, perhaps round about 1998 -- that because I was 20 having discussions with ACPO and with the National 21 Fingerprint Board, who were then considering or 22 proposing removing the 16-point standard, that I then 23 asked my colleague to re-analyse the data in a different 24 way so that we could see the variability of expert 25 interpretation rather than the variability with respect page 48 1 to image quality. 2 But, I mean, it was useful to me because it was a 3 well-controlled experiment that we'd managed ourselves 4 but it really only added to my concerns which had been 5 triggered by other events and, of course, in 1989 I 6 think the Evett and Williams Report had illustrated a 7 wide variation in opinion and interpretation under 8 rather different circumstances where experts were 9 actually asked to make an identification. 10 Q. I want to spend just a little bit of time looking at 11 this. What do you mean by the "interpretation" by 12 experts? What do you mean by that term? 13 A. Well, in the case of a fingerprint identification really 14 there are two primary issues that can affect the 15 accuracy of that identification. One is how many 16 characteristics are found in the scene of crime 17 fingerprint and the statistics of fortuitously finding 18 those in the suspect print or somewhere else in the rest 19 of the population. So that's, if you like, a fairly 20 straightforward, but not easy, statistical calculation. 21 The second, and much more subjective and at the 22 moment rather woolly issue, is the interpretation of the 23 scene of crime mark and deciding how many 24 characteristics there are actually in that mark and 25 that's where we don't have any proper sort of metrics, page 49 1 we don't have any guidelines. It's very much left to 2 the expert. 3 The trial that we carried, out we didn't give the 4 experts the print. We only gave them an image of the 5 scene of crime mark. So they had to work out where the 6 characteristics were. In the situation that you have in 7 a typical UK Fingerprint Bureau where you're making an 8 identification against a suspect, the expert has the 9 suspect's print in front of them and they can then, if 10 you like, work backwards what Evett and Williams call 11 "teasing out" the characteristics or "teasing out" the 12 points. So you don't have a purely objective setup 13 where the expert is interpreting the latent image, they 14 have the, if you like, facility to look at a print and 15 then decide whether certain marks, dots, features or 16 whatever in the print -- sorry, in the mark and tie up. 17 Then of course they can mark up -- if they are going to 18 mark up, they can mark up their chart. 19 I think that that's the other big unknown area. We 20 don't fully understand it. There's research going on 21 now in a number of countries around the world to look at 22 this interpretation and see if we can't make it more 23 objective. But there are those two separate issues 24 which I would call interpretation and the statistical 25 model. page 50 1 Q. If I can deal with them separately, first of all, in a 2 sense is the statistical model the question is at the 3 end of this process; in other words, if an individual 4 fingerprint officer has observed let's say 10 5 characteristics in the mark and 10 characteristics in 6 the print, the question is what is the statistical 7 likelihood of those 10 characteristics being present 8 uniquely in the known mark as opposed to those 10 9 characteristics perhaps being a chance occurrence that 10 one would find in a sample of the population. 11 Is that the question? 12 A. That's correct, yes. 13 Q. Other than identifying that as the question for us, you 14 don't feel qualified to express any opinion on that 15 particular question? 16 A. No, certainly not. I'm not a statistician, no. 17 Q. The name that you mentioned at least as in 1997 as the 18 person to whom such a question could be directed would 19 be Professor Champod? 20 A. Yes. There is work going on elsewhere now in Holland 21 and elsewhere. There's some work in the UK as well in 22 the Forensic Science Service with Cedric Neumann. He I 23 think worked with Christophe Champod. I think he 24 graduated in Lausanne and is now working for the 25 Forensic Science Service. So there are probably four or page 51 1 five centres around the world where people are tackling 2 this problem. 3 Q. Perhaps for all our benefits if you could spell 4 Mr Neumann's name for us, please. 5 A. I think it's N-E-U-M-A-N(sic) -- I'm sure he'll accept 6 my apologies if I get it wrong. 7 Q. There are some names that are slightly easier than 8 others to spell. 9 A. I think the other person that you should record is 10 Didier Meuwly in the Netherlands. 11 Q. Sorry, I wasn't listening then. The other name, sorry? 12 A. Didier Meuwly -- M-E-U-W-L-Y -- working for the National 13 Forensic Institute in the Netherlands who is carrying 14 out quite a large scale statistical study. 15 Q. I am very grateful to you. If I leave that as a 16 question that you entertained but you don't know the 17 answer to, why was that at least a question with your 18 scientific mind when you were looking at fingerprints, 19 why was that a question that was prominent to you at 20 this time in relation to fingerprint evidence? 21 A. I guess what brought it to a focus was the attempts by 22 ACPO to remove the 16-point standard. There had been a 23 review in 1988 the Touche Ross Review of scientific 24 support and Scenes of Crime in England, I think -- or 25 England and Wales -- and one spin-off from that was the page 52 1 idea that there were a number of what were deemed to be 2 partial identifications that weren't being taken to 3 court because they were sub the 16-point standard and 4 ACPO latched on to this as being a way of increasing the 5 number of identifications and over the next ten years, 6 through various mechanisms, attempted to and eventually 7 did remove that standard. 8 THE CHAIRMAN: But not to replace it with any objective 9 standard? 10 A. Sadly, no. That was my concern. If I'd seen it being 11 replaced with something that was better than, I would 12 have been delighted. 13 MR MOYNIHAN: I may be breaking this down, Mr Kent, into too 14 many subordinate parts but just simply looking at what 15 we have discussed so far, namely the absence of 16 statistical evidence for the uniqueness on one hand or 17 chance occurrence in a sample of the population, what 18 bearing did that question have on its own in relation to 19 your attitude to a move from the 16-point standard to 20 the so called non-numeric system? 21 A. Well, it wasn't clear quite what practices might involve 22 in bureaux if the 16-point standard was removed and 23 talking to experts there were -- there was a wide range 24 of views. There were some people that said privately, 25 well, we'll still keep to 16 points. There were other page 53 1 people that said, well, we've confident if we see 10 2 characteristics so we'll probably have an unofficial 3 standard of 10. There were others that indicated they 4 might go lower than 10. I felt that we just simply 5 didn't know enough about the distribution, the 6 statistical distribution of these characteristics and 7 the probability of fortuitous or adventitious matches 8 that I thought it was foolish to move to a situation 9 where we didn't give experts some pretty clear 10 guidelines. I just don't think it's realistic to expect 11 a fingerprint expert from his own experience of looking 12 at perhaps tens or hundreds of thousands of 13 fingerprints. He's not going to know intuitively how 14 many other people in the population have got a 15 particular subset of characteristics. It's expecting 16 too much. 17 Q. If I can move to a slightly different aspect of this and 18 maybe we will come back to that question. The other 19 aspect which picks up your own study is before one 20 thinks about the chance of recurrence or uniqueness of 21 a particular combination of characteristics, one has to 22 start with the first question what characteristics are 23 in fact observed by the officer and, first of all, just 24 what characteristics are observed in the scene of crime 25 mark and, separately, also what characteristics are page 54 1 observed in the fingerprint of the known individual, for 2 example, the suspect. 3 Do I take it that one of the concerns you had was 4 that your study was suggesting a significant variation 5 in observation of characteristics by apparently equally 6 qualified individuals? 7 A. Yes. 8 Q. Can you explain what the significance of that was as 9 casting doubt on a move from the 16-point standard to 10 any other system? 11 A. Well, if we take the situation I referred to earlier 12 where the expert is presented with a print of a suspect, 13 the question then is when they are looking for those 14 matching characteristics in the scene of crime mark how 15 clear does the detail need to be, how much information 16 do they need to have in that scene of crime mark for 17 them to come to a conclusion that it is a 18 characteristic? 19 I mean, I have seen charts marked up where a single 20 dot on a scene of crime mark is interpreted as being a 21 ridge ending on the periphery of a print. I mean, I 22 would argue probably that that's not sufficient 23 information to make that decision. But it's an area -- 24 I mean, I'm not offering any simple solution to this. I 25 simply think that the whole issue needs to be page 55 1 professionally assessed and what we didn't need to do 2 was just abandon the standard and not replace it with 3 anything. 4 Q. Forgive me if I use the unfortunate term to tease out 5 when you say the whole issue needs to be studied what do 6 you think is the issue that required to be studied 7 before the change was made? 8 A. I think -- well, as I said there isn't a simple 9 solution. First of all, we need to get the statistical 10 side out of the way. We need to know how many good 11 characteristics we need in a fingerprint to give us a 12 reliable identification. That is, if you like, the 13 second part. But the first part is we need to know how 14 experts interpret images. I think we would probably 15 need to carry out some sort of study with a number of 16 experts, independently interpreting images and then 17 going back and measuring how accurate their 18 interpretation was. 19 One of the suggestions that I did make to the 20 Fingerprint Project Board was that we had some sort of 21 standard image set. At the moment, there were no 22 regulations, there was no guidance as to what sort of 23 quality of photograph or image could be presented in 24 court. 25 I think a set of images, if you like, graded from page 56 1 excellent to awful and perhaps graded with some sort of 2 description about how much detail is visible, how noisy 3 they are, et cetera, and then some sort of break point 4 and say we're not going to submit images below a certain 5 image quality because we are then doubtful about how 6 reliable the data is in there. 7 Q. I will try and put it in this way and be simplistic: 8 let's assume that, first of all, as you say, you need 9 the statistical information, how prevalent a particular 10 combination of features is in the population. Let's 11 assume we have the statistical information for a 12 particular set, a combination of 10 characteristics, 13 that particular combination is unique. 14 If I understand it correctly, what you're saying is 15 that two other questions beyond that statistical one. 16 The first one is is the image that's someone is using in 17 court sufficiently detailed to admit of a reliable 18 identification of those 10 characteristics. Is that 19 correct? 20 A. That's correct, yes. How confident are we that they are 21 10 genuine characteristics. 22 Q. Then over and above that, even if the image is 23 sufficiently detailed, there is then the third question 24 which is the observational ability of the individual 25 fingerprint practitioner accurately to identify those 10 page 57 1 characteristics? 2 A. That is another variable, yes. 3 Q. Is it the combination of those three issues that had led 4 to your concern about the move away from the 16-point 5 standard? 6 A. Yes, yes. 7 Q. May I take it that, just to finish this particular 8 point, that this concern would not be unique to the move 9 to the non-numeric system, these same three issues would 10 underpin a questioning of the reliability of even the 11 application of the 16-point standard? 12 A. Absolutely, yes. 13 MR MOYNIHAN: Sir, that might be an appropriate point to 14 stop. 15 THE CHAIRMAN: What we do, Mr Kent, is we take a short break 16 during the morning because we have one stenographer who 17 probably doesn't need a break at all but we give her one 18 for 20 minutes. So we will sit again at 11.50. 19 (11.30 am) 20 (A short break) 21 (11.50 am) 22 MR MOYNIHAN: Mr Kent, what I would like to do is develop 23 what we were talking about before the break in two 24 different respects. The first one is if I combine now 25 three variables. You have indicated the first variable page 58 1 would be the statistical incidence of a particular 2 combination of characteristics can vary and, therefore, 3 the concrete number of characteristics, be it 8, 6, 10 4 or 16, doesn't tell you in isolation very much; is that 5 fair? 6 A. Not without a statistical model that has yet to be fully 7 developed. 8 Q. The second thing you have mentioned as a variable is the 9 variability of the image and that's not just 10 photographic techniques, that relates to how partial 11 and, indeed, distorted the impression is of the mark? 12 A. Yes. 13 Q. Then the third variability is the interpretation skill 14 of the fingerprint officer? 15 A. Correct. 16 Q. If I combine those three variables and ask you this: can 17 it be said, having regard to that combination of three 18 variables, that simply to apply a 16-point standard and 19 other countries, for example, use 12 or less that the 20 United Kingdom had a higher standard for testing 21 fingerprint evidence? 22 A. No. I mean, that interpretation was put on the issue by 23 a number of people and I think this was one of the 24 implications in the report but it doesn't take into 25 account what individual countries have by way of quality page 59 1 control and what their procedures are with regards the 2 interpretation of a scene of crime fingerprint. 3 I mean, one example that springs to mind is I 4 understand that in the Netherlands the expert is 5 expected to interpret the image, the scene of crime mark 6 and mark characteristics on it that he can see before he 7 has the opportunity to then do a comparison chart with 8 the suspect. So it would be quite a lot more 9 objectivity, if you like, or one assumes more 10 objectivity in the actual identification process. 11 Certainly, in my experience, in discussions with 12 experts from the Netherlands they would not accept some 13 of the poorer images that we've been accepting in the UK 14 courts. 15 So purely to think in terms of numbers, it's not 16 that simple. You would need to look more into the depth 17 of actually what quality control there was and what 18 types of image were being submitted. 19 Q. The UK -- we're talking in 1997 through to 1999 -- had a 20 16-point standard. What standard did the Netherlands 21 have at that time? Do you know? 22 A. I'd rather not be quoted but I think it was 12 but I'm 23 really not sure. There have been several surveys done 24 of countries around the world and there are tables 25 published and there are countries that operate standards page 60 1 or supposed standards from round about 8 up to, I think 2 at one time, 18. 3 Q. May I take it then from what you are discussing that 4 simply to talk in terms of one variable, the number of 5 characteristics, let us say the Netherlands has 12 and 6 the UK has 16, simply to look at that one variability 7 does not tell you which country had the higher quality 8 assurance standards from the point of view of evidence 9 in court? 10 A. Certainly not, no. 11 Q. If I can, again, further move that on to develop it, I 12 have brought up on the screen to prepare for this two 13 documents, at least digital documents HO0128 is on the 14 left and HO0130 on the right. 15 I understand these to be part of a presumably 16 PowerPoint presentation that you yourself presented. Is 17 that correct? 18 A. Yes. 19 Q. The only reason for the sheet on the left is so that we 20 can actually see when and to whom this was presented. 21 So it was presented on 24th/25th November 2000 to an 22 ACPO Crime Committee. Would that be correct? 23 A. That's correct. 24 Q. If I, therefore, drop the left image and on the 25 right-hand side if I could have the middle and bottom page 61 1 pages highlighted please, the bottom two slides, do 2 those relate to the trial you have already told us 3 about? 4 A. Yes. 5 Q. With on the right-hand box a graph representing the 6 distributions of observations that you have told us 7 about? 8 A. Yes, for two of the particular images that we had. 9 Q. What I would like to do is if I drop those two as 10 matters we've covered and just highlight the middle two 11 boxes please, what I want to do is just discuss the 12 middle two boxes. 13 On the right-hand side you have discussion of a term 14 that I myself have used about unique identification and 15 uniqueness. Are you in that box cautioning against the 16 use of such a term? 17 A. Yes, because I think it's generally misused in this 18 context. 19 Q. Can you please explain why you are of the view it's 20 misused? 21 A. Quite commonly fingerprint experts when giving evidence 22 will talk about uniqueness of fingerprints. I would 23 argue as a physicist that most things are different to 24 most other things. If I take a 1p coin from my pocket 25 and another 1p coin from my pocket they will be page 62 1 different because they will have different 2 micro-scratches, even when they came from the Mint they 3 would be different so you could regard them as being 4 unique although we don't know whether there are 5 somewhere another 1p coin that has exactly the same 6 pattern of scratches. 7 The particular problems that I have with fingerprint 8 experts use of the term, though, is rather different 9 because even if we assume or accept that fingers are 10 unique, that your finger is different to mine, of course 11 fingerprint experts are not comparing fingers. They 12 never compare fingers. What they compare is images, 13 usually on a piece of paper or on a screen, and usually 14 that image will be a third, fourth or fifth generation 15 copy of something that happened at some stage in the 16 past and we don't know how much data there is in that 17 third or fourth generation that relates to the original 18 object. 19 So if, for example, you know, we have a fingerprint 20 from a crime scene that's developed with powder, it may 21 be on a rough surface; it may be on a smooth surface; it 22 may be on a surface that has a pattern on it. We have 23 an application of powder, the powder may be quite coarse 24 and granular which may obscure some of the detail so 25 that you won't see all of the fine detail in the page 63 1 fingerprint, the Scene of Crime Officer will then either 2 take a photograph or use lifting tape to lift the 3 fingerprint and bring it back to his, perhaps, studio 4 and photograph the fingerprint on a camera that may have 5 a lens that introduces some distortion, he may over 6 expose it or underexpose it. It would then be 7 printed -- okay these days most things are digital. 8 But what I'm getting at is if my finger touches the 9 surface and then subsequently that surface is powdered 10 and we produce a photograph, we need to know how much of 11 the image information, the topographic information from 12 my finger has been relayed on to that surface. And, of 13 course, the first thing that happens is my 14 three-dimensional finger gets distorted into a two 15 dimensional surface when it's placed on the surface. So 16 we're not comparing like with like. We're not comparing 17 a finger with a finger we're comparing an image from a 18 scene of crime with an image that has been taken of a 19 suspect and probably ink and paper or by some sort of 20 live scan system. 21 So there's immediately a reduction in the amount of 22 information you have. If I look at my finger I can see 23 a huge amount of data there. I can see every pore, 24 every flake of skin, every crease. A lot of that is not 25 relayed into the final scene of crime image and that's page 64 1 where the whole concept of uniqueness becomes a bit of a 2 nonsense. 3 Q. The other point that maybe relates to what you are 4 saying is in right-hand box, the second bullet point, 5 you are saying, in the first, in fact, looking at any 6 physical object sufficiently microscopically you would 7 detect variances where no two things could be thought to 8 be unique but then the next question is whether that 9 variance is, in fact, discernible in operational 10 circumstances and one of the points you are making is 11 that some of the detail that dictates the uniqueness of 12 an object may be lost in the transmission through the 13 various generations of that image? 14 A. Indeed, yes, and we don't have criteria for how much 15 information we need to make that decision or 16 identification. 17 Q. If I can move then to the left-hand of those middle two 18 boxes and we will concentrate on that for a moment, 19 going down through this, first of all, the heading is 20 what are the real problems with fingerprint evidence 21 standards. 22 Does this box represent a helpful way of progressing 23 through your thinking of what the problems are with 24 conventional fingerprint evidence? 25 A. Well, to be honest, it was just obviously a small subset page 65 1 of my thoughts. I only had a very small time slot in 2 the agenda to just raise a few issues and I focused on 3 some things that I thought might get people thinking. 4 It's not meant to be a comprehensive analysis of the 5 identification process and problems. 6 Q. Again, with apologies on much the same basis as we have 7 a limited amount of time available we'll see if we can 8 pick out the essential ones. If I leave for the moment 9 the first bullet point and go directly to the second, 10 you wrote: 11 "Most [that's fingerprint experts] seem to want to 12 maintain the absolutism of identification without any 13 logical basis for this." 14 Can you explain what you mean by that? 15 A. Because in most areas of human observation we can be 16 sure of something, we can be totally unsure and we can 17 be somewhere in the middle. You know, if we think we 18 recognise somebody, if I see you and I know you then I 19 can recognise you absolutely. If I see a man half a 20 mile away then I'm not sure if it's you, but it might 21 be. If you are 100 yards away and I know you fairly 22 well, I may think it's probably you. 23 The fingerprint experts generally, almost 24 exclusively, will only go into court and say this is 25 identical because it meets their own subset, their own page 66 1 criteria. At some point they are not prepared to do 2 that. They are not prepared to go in and say it's 3 probably John Smith's; they just won't present evidence 4 at all. I maintain that let's supposing there are 16 5 clear points and 16 is our standard, if there are 6 15 points, there is a very high probability that it's 7 John Smith and I think the experts should be going into 8 court and saying there is a high probability it's John 9 Smith, instead of not presenting that evidence. 10 Q. So in a sense there would be a role for some evidence at 11 a lower probability than 100 per cent but let's look 12 at -- 13 A. Well, sorry, that presupposes that 16 points is 100 14 per cent. It might be 99.99. 15 Q. That is what I was going to ask you. The absolutism 16 based on the three variables we discussed just before 17 the break and immediately after, how comfortable would 18 you be with the absolute position of a fingerprint 19 expert in court, that having observed a set number of 20 characteristics that he, that expert, can be 21 100 per cent certain that that fingerprint is 22 Mr Moynihan's fingerprint and no-one else's? Do you 23 have a view on that? 24 A. Well, as a scientist I think inevitably I've got to go 25 down the route and say I think probably fingerprint page 67 1 evidence will go in the same direction as DNA evidence 2 and in the future we will be saying the probability of a 3 fortuitous match is 1 in 10 million or 100 million or 4 something. I don't think we will be able to maintain 5 this absolute identification. This might have worked a 6 century ago when fingerprint experts were looking at a 7 bundle of 200 fingerprints of their local burglars and 8 people weren't travelling. 9 We've now got technology and databases that enable 10 us to search one fingerprint potentially against 11 100 million fingerprints. What we don't know is at what 12 stage we're going to start to find similar patterns 13 emerging and similar distributions of characteristics. 14 So I think the time will come probably sooner rather 15 than later that we will need to or experts will need to 16 give statistically-based evidence. 17 Q. Do you have a view, again speaking of the absolutism of 18 identification, on the acceptability of a fingerprint 19 experts saying it's either 100 per cent a unique 20 identification or I'm making no identification at all 21 what that tells us about the way they are trained to 22 think? 23 A. Well, I think they are reflecting entirely the way they 24 are trained. I mean, I don't mean anything I say today 25 or any other time to criticise fingerprint experts. I page 68 1 think they do the best job they can with respect to the 2 training and support they are provided with. I think 3 it's our job to provide them with more support, more 4 training and better standards to work to. 5 Q. So, again, without criticising in any respect any 6 individual fingerprint practitioner in what he does, 7 what do you say are the shortcomings of the training or 8 the support that's provided to that profession? 9 A. Well, I think perhaps I should say that, I mean, I've 10 devoted a huge amount of my life to fingerprints. I 11 think it's one of the most reliable forms of evidence 12 and I think let's say 99.9 per cent of fingerprints are 13 absolutely of the highest quality identifications and 14 it's the most valuable form of evidence. So my concern 15 is about the small, I think probably fairly small, 16 numbers of poor quality fingerprints that may be being 17 presented. 18 One of the problems that I have is that there has 19 never been, as far as I'm aware, a thorough review of 20 the quality of fingerprints being presented in court. I 21 would like to see, for example, 1,000 fingerprints and 22 look at the average image quality. I haven't had that 23 opportunity. So, I mean, that's where my concerns lie, 24 is what -- how far do fingerprint experts go in 25 interpreting poor quality images and finding page 69 1 characteristics that may not be there. Does that ... 2 Q. It was trying to understand what you were saying about 3 requiring support or training. What is it that you 4 think is required to meet this -- 5 A. Sorry, it is this guidance, as I mentioned earlier, 6 about poorer quality images, what should we be allowing 7 into court. What is an acceptable image quality to be 8 able to interpret characteristics reliably? That is one 9 issue and the other issue is how many characteristics 10 should we be requiring for them to make an 11 identification. 12 Q. You do actually in later bullets points cover the 13 matters we have already covered. If I can ask you to 14 look at the third and subsequent bullet points, is there 15 anything else you would want to highlight from them that 16 we haven't already discussed? 17 A. Sorry? 18 Q. If I look at the third bullet point you are talking 19 about the absence of a scientific basis and in 20 particular removing the 16-point standard removes any 21 pretence of a uniformity of interpretation, is that you 22 something you feel you have covered adequately already 23 or did you mean more by that than what you have already 24 said? 25 A. No, obviously it's a complex subject and I don't think a page 70 1 further analysis here would help very much. 2 Q. Because you then say that in the next bullet point most 3 bureaux did actually have working guidelines on the 4 numbers of characteristics, 12, 16 or whatever and the 5 non-numeric basis removes those and we discussed the 6 implications of that. Would that be correct? Is there 7 anything you wish to add in relation to that particular 8 bullet point? 9 A. A number of countries say they have no standards but 10 actually have working guidelines. So I think that's a 11 recognition of the fact that it's actually quite 12 difficult to genuinely not have a standard and we have 13 found that in England now that, despite theoretically an 14 expert can go into court with any number of 15 characteristics, in practice they have to work to some 16 sort of numerical guideline. 17 Q. In relation to that do you know what the guideline is in 18 England at the present time? 19 A. I wouldn't like to be drawn on that to be honest. 20 Q. The penultimate bullet point is one of the main points 21 that you have been talking, namely about building up a 22 statistical model of fingerprints, and then the final 23 one you are indicating that in America there were at 24 that time initiatives and, indeed, you have confirmed 25 that in continental Europe at the present there is some page 71 1 further supplementary research being carried out that we 2 can tap into. Is that fair? 3 A. Yes, the US Department of Justice actually, I think 4 currently is funding some research in this area. 5 Q. The final one I overlooked initially was the first 6 bullet point: 7 "Fingerprint experts cannot decide whether 8 identification is an art or a science." 9 Would you like to expand on what you were meaning by 10 that as a problem? 11 A. Well, I don't want to get into the semantics of defining 12 an art or a science but a number of people in recent 13 years have tried to argue that fingerprint evidence is 14 scientific. They've come up with things like the ACE-V 15 which you have probably come across from America, 16 (Analysis Comparison Evaluation and Verification, simply 17 documenting a process doesn't make it a science. Unless 18 you've got some metrics or some test methodology, as far 19 as I'm concerned, it's not a science and I'm not aware 20 of anybody other than those carrying out statistical 21 studies, I'm not aware of anybody that's shown that the 22 current way of fingerprint experts working is 23 scientific. 24 Q. If I can move beyond that to more abstract, more 25 generalist points, you mention one particular case, page 72 1 MacNamee. You mention that at paragraph 32 of your 2 statement. 3 A. Sorry, where is it in the statement? 4 Q. Paragraph 32. I will give you a chance just to refresh 5 your memory of paragraph 32. What I was wanting to ask 6 about was the final sentence in that paragraph and I 7 will give you a chance to read the context. 8 A. Yes, sure. 9 Q. We can read as an unreported decision the decision of 10 the Court of Appeal in MacNamee. What I was wanting to 11 understand was what you meant by the last sentence where 12 you say you were: 13 "... becoming, at that time, concerned about the 14 standards of fingerprint evidence undermining this most 15 important form of evidence." 16 What was your concern at the time of MacNamee? 17 A. One of the problems that I alluded to earlier is that, 18 you know, I said I would quite like to see 1,000 19 fingerprints. Unfortunately, over the years a number of 20 questionable identifications have been produced but the 21 Fingerprint Service has not been forthright really in 22 disclosing this evidence. I mean, it would have been 23 good if we had had an opportunity to examine 24 fingerprints that were contentious in a wider, not 25 necessarily public forum but in a wider forum. page 73 1 So, as a result, even though I work quite closely 2 with fingerprint experts around the country, it was only 3 occasionally that I would have sight of something that I 4 thought was problematic. So although I was concerned 5 about the campaign to dispense with the 16-point 6 standard, I didn't have much hard evidence to back-up my 7 case. 8 The MacNamee case was something that -- it was 9 concrete, it was in my hands, somebody sent me that 10 image. Peter Swann sent me that image so I had a copy 11 of the evidence that had been material in convicting 12 somebody of a serious crime and it was to me of such 13 poor quality it never should have been presented in 14 evidence. So that, simplistically, that's the point. 15 Q. When you say it was of such poor quality you are not 16 entering the field of a fingerprint expert to express an 17 opinion. What you are commenting on is the amount of 18 detail in the image itself? 19 A. Let's say the overall image quality because there was so 20 much noise in the background patterning and disturbance 21 that I thought it would be extremely difficult to 22 extract visually the ridge pattern from that. 23 Q. As I say, from the instruction that you were given by 24 the Crown Office some parts of it you were unable to 25 answer because it was outwith your area of expertise. page 74 1 You did attend the McKie case as a witness? 2 A. Yes. 3 Q. And you have been very clear in your statement that 4 before you attended to give evidence, you had not 5 appreciated there was any question mark over the 6 identification. 7 A. No. 8 Q. So that any concern you had in MacNamee hadn't been 9 sufficiently triggered in relation to the McKie case? 10 A. No, I didn't even dream -- I hadn't even bothered to 11 look at the mark in any detail and, no, I had no 12 suspicion. I mean, I had no reason to. I had plenty of 13 other things to do. 14 Q. We have had some evidence from the prosecutor, 15 Mr Murphy, that he did have a conversation with you of a 16 fairly generalised nature during the course of the 17 trial. 18 Do you remember that conversation? 19 A. I'm afraid I don't. 20 Q. The concerns -- 21 A. I think the only thing I have a vague memory of, I do 22 think that before I went into court somebody said that 23 it was unlikely to be contested, my evidence. But, I 24 mean, I didn't put anything to that, I didn't know what 25 the defence was. There could have been any number of page 75 1 potential defences in a case like this. 2 Q. The evidence that you had been giving of your concerns 3 that are still on the screen are November 2000, which 4 post date the trial. 5 A. Yes. 6 Q. The trial was May 1999 so I have to adjust the 7 time-frame. 8 A. Yes. 9 Q. The concerns that you had about fingerprint evidence 10 that you have spoken about today, you did not mention 11 those concerns to any of the prosecution team at the 12 time of the McKie case? 13 A. I honestly don't know. I mean, over the years there 14 have been so many discussions with so many people ... I 15 mean, it is possible. I mean, at that time I was, as I 16 said, generally concerned about the quality of 17 fingerprint evidence so it may be that it arose in 18 discussion but certainly not in connection with this 19 case. 20 Q. If I take it from the various witnesses we have heard 21 that they have no recollection of you having raised any 22 of these concerns, would that be possible, that you 23 would not have voiced them to them? 24 A. I wouldn't necessarily have voiced them and, in fact, I 25 wasn't up here in Glasgow for very long, I don't think, page 76 1 so there may not have been opportunity for long 2 discussions. But, having said that, I mean, I had 3 raised it in other fora. 4 There had been meetings of fingerprint experts some 5 time in the '90s where there was a discussion about the 6 abolition of the standard and on numerous occasions I 7 had formally and informally expressed my concerns. 8 Q. Can I ask you -- again I am going to now concentrate on 9 the trial itself -- can I ask you a point of detail in 10 relation to paragraph 7 of your witness statement on 11 page 3. It flows, in fact, from paragraph 6 towards the 12 end where you remember having a conversation with Chief 13 Inspector Hogg principally and we have covered that. 14 In paragraph 7 you say that person told you that Pat 15 Wertheim was likely to give evidence that the relevant 16 fingerprint in the case had been planted. 17 Do you have a clear recollection of that? The 18 reason I ask that is I may be wrong but as I understand 19 it Mr Wertheim was not instructed until March 1999. I'm 20 looking around to see if that's -- I'm having some 21 people nod. So is it possible that there's a mistake in 22 your recollection here of having been told that 23 Mr Wertheim would give evidence of planting? 24 A. It's possible but, I mean, I did associate the two, the 25 suggestion that it had been planted and Pat Wertheim's page 77 1 name and Pat Wertheim had written a number of papers on 2 the planting of fingerprints. But I could be wrong, yes 3 but -- and that surprises me and I don't have a simple 4 explanation for that. 5 Q. Again, you would be aware, if one looks at your file, 6 one of the items you had was an article by Mr Wertheim 7 in relation to planting. 8 A. Yes. 9 Q. It may be that has been the source of some confusion, if 10 I can put it this way, that you had an article that was 11 by Mr Wertheim on planting, the initial belief was 12 planting was going to be the subject and, in fact, 13 ultimately, Mr Wertheim did give evidence, albeit on a 14 different subject, you could be simply reading all these 15 three together now? 16 A. Well, possibly. You know, I'm sure that when somebody 17 originally contacted me and asked me to look at the 18 exhibit they said they thought the defence was going to 19 be that it had been planted and that was the basis on 20 which I undertook the examination. It may be that I am 21 subsequently associating the two. 22 Q. If I then move on from that to another matter, if I tell 23 you that you gave evidence on 6th May, you just need to 24 accept that from me. I have checked. You gave evidence 25 on 6th May -- do you want to write this down because we page 78 1 may need the dates -- and that Mr Wertheim and Mr Grieve 2 gave evidence between the 11th and the 13th, those dates 3 separated by a weekend, over the course of that gap you 4 were in contact with Mr Meagher of the FBI; is that 5 correct? If I show you the particular document to give 6 you the date, if you have a look please at HO -- 7 A. I remember being in contact with Steve Meagher. I 8 thought it was subsequent to Pat Wertheim's evidence. 9 Q. I will just show you. If I go to HO0109.5? 10 A. So that's 12th May, so it is after Pat's evidence. 11 Q. Sorry, I must have the wrong page. If I could move on 12 to page 6. Sorry, it is a question of translating from 13 numbering I had to a PDF. You will see this is an 14 e-mail dated 7th May, the Friday. 15 A. Yes, okay. So that's prior to Pat's evidence then. 16 Q. If I give you Mr Wertheim's evidence, SG0531, if we 17 proceed down just until we get the opening of the 18 transcript we see this is a transcript of Tuesday 11th 19 May. Do you see that? 20 A. Yes. 21 Q. And then if we go to the next page. We will see, so far 22 as the transcript is concerned, that Mr Wertheim's 23 evidence began on the 11th. So that was my reason -- 24 A. Yes, okay. 25 Q. If I can go back then to HO01096 -- that is the page 79 1 e-mail -- can you explain why it was that you were in 2 contact with Mr Meagher at the FBI? 3 A. Something must have happened on that Friday or the 4 Thursday to make me believe that there was a questioned 5 identification. I'm afraid I can't remember what it 6 was. If it wasn't Pat, then it must have been somebody 7 speaking to me from SCRO or whoever and telling me that 8 there was a question mark. 9 Q. What was your purpose in contacting Mr Meagher? 10 A. The Home Office had an MOU (a memorandum of 11 understanding) with the FBI so we were able to exchange 12 highly classified documents. So I had no doubt about 13 what would happen to anything I sent. 14 I had, I think, earlier that year or possibly the 15 year before talked through the MacNamee mark with Steve 16 Meagher at an international meeting and he had expressed 17 concern over the quality of it and I think at the time 18 it just occurred to me as being the quickest way of 19 getting, if you like, an independent view of the 20 identification. 21 Q. Why is there a witness to this case, and by then you had 22 given evidence on 6th May, why were you wanting to take 23 a view on the identification in the McKie case? 24 A. Well, for a start, it would be one of relatively few 25 documented mis-identifications which of course were very page 80 1 relevant to my interest over the quality of fingerprint 2 evidence. 3 Q. You say this in the statement, that you did not in fact 4 get a response from Mr Meagher? 5 A. No. 6 Q. And I think the preceding page, if I go back to .5 you, 7 in fact, recalled the images from him; is that fair? 8 A. I ... sorry? 9 Q. Maybe this is the wrong document. You did in the event 10 recall the documents from Mr Meagher? 11 A. I asked him to destroy the images. 12 Q. What is on the screen just now and what you have 13 mentioned a little earlier you refer to Mr Wertheim as 14 Pat. 15 Is he someone who was known to you at this time? 16 A. Yes. 17 Q. Had you had any professional involvement with him? 18 A. I used to fairly regularly go to the International 19 Association of Identification Conferences in the States 20 and I've met Pat Wertheim, I guess, probably half a 21 dozen times. He'd been in the UK a few times and I 22 think I may have met him over here as well. So, yes. 23 Q. What did you understand to be his standing in the 24 fingerprint community at that time? 25 A. I really don't think it would be fair of me to comment page 81 1 on that. I mean, I have read his CV that, at least 2 superficially, looks quite impressive. The only 3 criticism I've heard third party -- perhaps I shouldn't. 4 It depends whether you want third party ...? 5 Q. I am not necessarily wanting you -- I am not necessarily 6 inviting you to criticise him? 7 A. I don't have an opinion. 8 Q. The next question I wanted to ask you in relation to the 9 evidence that was led at the trial is you comment in 10 your statement about your own impression of the mark Y7 11 as a double touch as opposed to a single touch. 12 If I take you to paragraph 15 of your statement you 13 say that your own initial impression when unpacking the 14 door stop was that Y7 was not a clear continuous 15 fingerprint. 16 If I take you to paragraph 27 you are very clear 17 there that you had no view of identification of Y7 18 during his inspection: 19 "... because until Pat Wertheim went into court to 20 give evidence the possibility that the Scottish experts 21 had made a mistake in identifying Y7 had never even 22 crossed my mind." 23 So I think we will have to readjust that slightly? 24 A. Indeed. It must have been the Thursday or Friday that 25 something happened to make me realise that ... yes. page 82 1 Q. What I am interested in is you go on in that paragraph 2 to say that you think the mark Y7 was a double touch, 3 two superimposed marks or one mark with movement, as 4 there were two distinct areas within the mark. 5 Then in paragraph 30 you comment on Mr Wertheim 6 using a very simplistic argument and are you yourself 7 indicating in your statement that you had doubts, having 8 listened to Mr Wertheim's evidence, about the view that 9 Y7 could be interpreted as simply a single touch? 10 A. Yes. I wasn't questioning Pat Wertheim's view that Y7 11 wasn't Shirley McKie's mark. That's a different issue. 12 It was his interpretation it was one simple continuous 13 fingerprint that I was questioning. 14 THE CHAIRMAN: One thing I haven't got quite clear, a double 15 touch does that mean two different fingers or does it 16 mean the same finger touching twice? 17 A. I think most people would interpret it as being the same 18 finger touching twice, but with this I mean, it's not 19 impossible that's it's actually two separate 20 fingerprints fortuitously coinciding. 21 THE CHAIRMAN: So the phrase could mean either. 22 A. It could be either, yes, or it could be one touch and 23 then a movement, a sliding or a skewing and then a 24 further impression. 25 MR MOYNIHAN: I showed you this morning before you started page 83 1 evidence we have some of the photographic original 2 documents and it may be that now is the appropriate 3 point to pass across to you an item which is called 4 defence production number 2, which can be brought up on 5 the screen as DB0172 and also from your own file some 6 other tracings HO0106. 7 Just for clarity, I've got up on the screen digital 8 versions of the photographs. The reason for giving you 9 the originals is just to be satisfied that we have an 10 acceptable quality of image for the conversation we're 11 about to have. 12 Just to be clear, for the avoidance of any doubt, if 13 I ask you to begin with Mr Wertheim's production (that 14 is the one in the manilla folder), if you peel back the 15 acetates do we see the underlying image is one one might 16 recognise as a Mr Wertheim image of Y7? 17 A. Yes. 18 Q. With striation across. 19 A. Yes, broadly, yes, that's the discriminating point, yes. 20 Q. So it is a Mr Wertheim image? 21 A. I think so, yes. 22 Q. And the one on the right-hand side, I brought up just a 23 particular version with some acetate markings. Is the 24 underlying image -- perhaps if we could go through it. 25 Try .01 to see if that is the correct direction to go page 84 1 through -- 2 Is what I've brought up on screen the most basic 3 image in the bundle I have just provided you with of 4 your own copy? Yes? 5 A. Sorry, are you saying that's my photograph? 6 Q. That's the question: are these markings and tracings 7 done in relation to this on one of your own photographs? 8 A. I think so. 9 Q. So I think what we should be conscious of, because there 10 are a variety of images of Y7 available to us, the 11 particular exercise we're about to do has the limitation 12 that we are using a Mr Wertheim image on one hand and 13 one of your images on the other but nonetheless -- 14 A. Sorry, I should say that I wouldn't necessarily 15 recognise the tracings. I mean, if you're telling me 16 these are the ones that the Home Office supplied you 17 from my file then I am very happy to accept them but 18 other than that there's not very much that would 19 distinguish them. 20 Q. If I tell you that HO0106 -- HO is initials of the Home 21 Office -- so, yes, these were found in your file. 22 A. Yes. 23 Q. So if you accept that from me, it would therefore follow 24 that it is likely that the base image used in this is 25 one of your own images? page 85 1 A. The only thing that surprises me is some of my images 2 have an exhibit label, don't they, a signed exhibit 3 label. 4 Q. It may help if you look at your own bundle. 5 A. That's right, yes. So this must have been printed from 6 one without a label. But if it's from the same series, 7 that's fine. 8 Q. So what I want to do is if I go then back to putting on 9 the screen what we started with, if I understand it 10 correctly, what you were indicating in your paragraph is 11 that having listened to Mr Wertheim, whose evidence was 12 it was a single touch, it differed from your own 13 personal view of a double touch and you were then 14 inquisitive as to how this difference of opinion could 15 have arisen? 16 A. Yes. 17 Q. You spoke to, among others, one of your friends who was 18 a fingerprint expert and asked him to do some tracings? 19 A. Actually, that was some considerable time later. 20 Q. Do you know in what we are looking at, HO0106, if you 21 look at the originals, a series of tracings done by you 22 or a series of tracings done by your friend? Do you 23 recollect? 24 A. To be honest, they could be either but they would be 25 some time after the trial -- I mean, probably a couple page 86 1 of years after the trial or a year after the trial. 2 Q. Let's then begin with just your tracing and I happen to 3 have brought up the one that I think is top-most now, it 4 is before you in the original. I will just check. Yes. 5 Orientate it properly for your own benefit and tell me 6 if I am indeed using the top-most acetate. 7 A. Sorry, you want to know the author of these? 8 Q. No, no. Forgive me. 9 What I want to do is to ask you by reference to any 10 one of the acetates you have in front of you what the 11 exercise was you were undertaking and what conclusions 12 you draw. 13 It so happens that what I have done is brought up on 14 the screen for everyone else to follow one of the 15 acetates and I believe it to be the top-most one in the 16 original and I'm just wanting you to confirm that that 17 is, indeed, the case. 18 A. Yes. Well, actually we're seeing, on the right-hand 19 side of the screen we're seeing two superimposed 20 tracings, aren't we, which I think is the pair that I 21 have here. 22 Q. So, therefore, what we're looking at on the right-hand 23 side is at the bottom there is an image of Y7 with some 24 red markings and then to produce the image we have on 25 the right-hand side we're looking at a whole series of page 87 1 acetates laid on top. Is that correct? 2 A. Yes. 3 Q. It may be that others will want to actually look at this 4 themselves but perhaps I don't know if you, sir, wish to 5 have a look at a particular bundle just now or leave 6 it ... 7 A. I mean, to be honest, I think the individual tracings 8 are a bid of a red herring. I think it's actually the 9 philosophy behind the exercise that is more important to 10 probably explain. 11 Q. Please. The only reason that I have brought these 12 images up is I find it a little easier to look at an 13 image than study philosophy books but if you can explain 14 to me what the philosophy is of what you were trying to 15 demonstrate. 16 A. What I am getting at is it might be clearer if we looked 17 at an original adulterated image, if you like, then I 18 could explain the principle I was trying to establish. 19 Q. I think there may be a slight difficulty. 20 A. I think something like the one that was shown to me a 21 little while ago with my signature on it would be quite 22 good. 23 Q. If you give me just a second. I will just make an 24 enquiry. Unfortunately, the image of my choice -- which 25 is one we are going to use with other witnesses -- is page 88 1 too large in data terms to put on the screen. In that 2 case if you give me just a second, please. 3 A. I mean, I think any image without tracing would be 4 adequate. 5 Q. If you give me just a second we will get a reference for 6 an image. (Pause) 7 Mr Kent, if we could start by having HO0070. I am 8 sorry, they are not on the Core Particpants' database. 9 (Pause) 10 DB0138. If you proceed through that ... 11 A. That will do. 12 Q. Will that do? 13 A. Yes. 14 Q. If I just tell everyone for that purpose it's DB0138, 15 PDF page 3. This has your name on it so it's, 16 therefore, one of your images? 17 A. I'm prepared to accept that. 18 Q. Using your image -- and you have the ability I think to 19 operate the touch screen in front of you -- if there's 20 any area you want to highlight for us, please do so. 21 A. Let me, first of all, perhaps try and -- my mouse 22 doesn't seem to be working, I'm afraid. 23 Broadly, if we look at this area ... the area that 24 I've highlighted on the right-hand side which as you 25 normally look at the mark would be at the top, I think, page 89 1 the way you have presented the other images, that 2 appeared to be of a higher density and darker than this 3 part of the fingerprint. Unfortunately, with the 4 highlighter I can only show a crude rectangular -- but 5 just to give you a rough idea. 6 Q. If we just go back, because what we will have to do is 7 to try to capture the images. First of all, could you, 8 again highlight for us the area that you regarded as a 9 darker -- 10 A. Sorry. 11 Q. First of all, can we rotate the image so the "T Kent" is 12 down the left-hand side? 13 A. That's better, so it matches the others ones you have 14 been looking at. 15 Q. So if you begin by highlighting for us, please, the area 16 of greater density? 17 A. Okay my mouse is not working. I'll use the stylus. 18 Broadly something like that (indicated). My two areas 19 will probably overlap but it indicates generally. 20 Q. If we could you capture that image. That's done. So 21 that's the area of greater density. 22 The second area is what? 23 A. Are you happy with that? 24 THE CHAIRMAN: Yes, we can see it now. 25 A. The second area is ... the second area is something like page 90 1 that (indicated). 2 MR MOYNIHAN: Again, could we just capture that. Just 3 before we, in fact, progress too far, could we put that 4 image to the right-hand side, please, and bring up 5 PS0002. 6 I don't know -- maybe in relation to the mark itself 7 if we can enlarge the area. In relation to those two 8 pictures PS0002 and DB0138 is there a difference for 9 your purposes, a preference to use one image rather than 10 the other for this particular exercise? 11 A. Yes, because the one on the left-hand side is very 12 coarsely digitised and we haven't got the detail, I'm 13 afraid. 14 Q. If we drop PS0002 then and just use your DB0138, first 15 of all, what is the significance in the fact of the 16 different areas of density that you have highlighted? 17 A. Well, it may indicate a double touch of some sort. 18 Obviously with any fingerprint you can get a variation 19 in density across it when it develops for a whole 20 variety of reasons, but there seemed to be a sort of 21 delineating line between these two areas. 22 There were also some other differences in the actual 23 appearance of the ridge detail and I don't know if I 24 can -- can we enlarge it possibly more than that? 25 Q. We can try. page 91 1 A. Okay. Unfortunately, it's starting to degrade a bit but 2 let me see if I can indicate ... can we get rid of the 3 highlighting? 4 Q. Can we get rid of the yellow? 5 A. What I wanted to indicate was if we look -- I'm trying 6 to use the pointer ... 7 If we look down here, here we have some ridge detail 8 coming up from the bottom left to the top right. If you 9 look at that ridge, it's a sort of dark line with a hole 10 in it effectively, which is probably a pore. 11 Q. Sorry, Mr Kent, if you could move your microphone just 12 to your left so it actually makes it a little easier to 13 hear you. 14 A. Okay. Is that better? 15 Q. That's better. Thank you very much. 16 A. The effect I want to show you is fairly subtle but if we 17 look at where the red arrow is pointing, there is a dark 18 line going from the bottom left to the top right and 19 it's got a white space in it which is most likely a 20 pore. Now, if we look at another part of the image, at 21 the top -- 22 Q. If we could capture that first image, the single arrow, 23 please. And then perhaps clear that arrow and then you 24 are going to refer to another area? 25 A. Yes, yes. If we look at the ridge detail at the top, page 92 1 this is a ridge but it appears to consist of two dark 2 lines on the outer edges with a lighter gray area in the 3 middle also with a white dot slightly below the point in 4 the arrow. 5 Now, to me, that looks rather like a different 6 style, if you like, or there's something different about 7 the fingerprint and depending on the contamination on a 8 finger, sometimes you'll get this continuous central 9 line and sometimes you'll get what some experts refer to 10 as "tram lining". You can get both in the same print 11 but it does visually give me the impression of being 12 possibly different. But more importantly -- 13 Q. Sorry -- 14 A. Did you want to capture that? 15 THE CHAIRMAN: I think we just want to capture -- 16 A. Shall I do it again? 17 MR MOYNIHAN: We've done it. 18 A. The most crucial issue really is can we trace the 19 pattern of ridges through from the lower half of the 20 fingerprint through to the upper half if indeed it is 21 the same print and, I mean, I would strongly suggest 22 that ... sorry, how have I managed that? Was that me? 23 I'm suggesting there's an area broadly going from 24 this arrow to somewhere over here ... 25 MR MOYNIHAN: If you give me just a second because on the page 93 1 right-hand side we now have three arrows where we 2 require only one. 3 A. Let me get rid of those. Let me try and get one arrow. 4 Okay. What I'm suggesting is that something odd is 5 happening between there and if I put another arrow over 6 here somewhere. It's not clear to me that there's a 7 consistent flow of ridges. So essentially I designed an 8 experiment where I effectively mask off -- have you 9 captured those? 10 What I proposed is an experiment, and in fact I 11 can't do this precisely, but the experiment I wanted to 12 do was to mask off the top part, mask off the bottom 13 part and not show the fingerprint expert those areas and 14 ask them to trace what was happening in that central 15 part of the image. There are dangers I think if you 16 present the fingerprint expert with a set of ridges here 17 and a set of ridges there that they will simply join 18 them up in some way, but if you don't give them the 19 clues we will need to know actually what the 20 interpretation is of that central area. 21 So that was the whole point of my experiment really, 22 was to produce a set of images, mask them off, get a 23 number of experts to look at them and trace where they 24 thought the ridges went and then subsequently we would, 25 if you like, superimpose those number of experts' page 94 1 tracings and see whether they did superimpose, 2 indicating that we had some confidence about where the 3 ridges went, or if everybody interpreted it a different 4 way I think we could reasonably say, "Well, we don't 5 have a consistent view of what is happening in that area 6 of the mark". 7 Q. If i put that image to either side -- and I am conscious 8 of the time -- could we just go back to what we were 9 looking at earlier on, the HO image. So HO0106. 10 A. Yes. 11 Q. If you go to number 4 on that acetate, what we see in 12 the right-hand image is tracings in particular of the 13 bottom section, tracings of the top of ridges going 14 side-to-side; whereas in the middle area there is a 15 blank. 16 A. Yes. 17 Q. What was the significance of that blank? 18 A. Well, whoever did the tracings -- and I suspect that I 19 did the first one and I think one or more fingerprint 20 experts probably did the others -- it indicates that 21 certainly we couldn't confidently say what happened in 22 that area, and we didn't -- none of us thought there 23 clear ridge detail. 24 Q. If I then go to Mr Wertheim DB0172.8, along with HO0106, 25 please look at the originals to just satisfy yourself. page 95 1 It would appear from the charting that Mr Wertheim has 2 done that he has, within certain tolerances, got the 3 same blank area. 4 A. Yes, although he actually has a smaller blank area and 5 he has more consistency, particularly on the right-hand 6 side, of how far those ridges go. I mean, I think even 7 on his charting there is some uncertainty because two of 8 the ridges appear to be an unusual distance apart, quite 9 abnormal. 10 Q. What we will do in that case is just stop there and come 11 back later on and see if we can actually identify the 12 two ridges that are far apart. 13 A. Sure. 14 MR MOYNIHAN: Sir, this would be an appropriate point to 15 stop. 16 THE CHAIRMAN: Yes. We will stop now until 1.50. 17 (1.02 pm) 18 (Luncheon Adjournment) 19 (1.50 pm) 20 MR MOYNIHAN: Mr Kent, if I can continue with what we were 21 discussing before lunch but perhaps be a little clearer 22 in the topic I'm asking. 23 I picked up in your statement that having heard the 24 evidence of Mr Wertheim you were left with the question 25 whether he was correct in the view there was a single page 96 1 touch. Your view was it was a double touch. As part of 2 that question you were wondering whether he was correct 3 that there was ridge continuity between the lower and 4 the top parts of the mark? 5 A. That's correct, yes. 6 Q. You were very careful to say that you have not reached a 7 final view in relation to these matters. You are 8 indicating questions that remain. 9 What I was trying to do before lunch, and perhaps 10 just not using the correct images to do it, was to ask 11 you to indicate to us the areas in the mark which give 12 rise to the question in your mind about whether or not 13 there is truly ridge continuity. 14 What I have brought up again is an unmarked version 15 of Y7. It happens to be one of your images that we were 16 using before lunch, DB0138.003 rather than try and 17 distort it by reference to felt tip pen markings. Can 18 you indicate, please, for me -- and take as long as you 19 require to gather your thoughts -- the principal areas 20 in your mind give rise to this unresolved question about 21 there being a double touch, a single touch and indeed 22 ridge continuity. 23 A. Yes. I mean, I can't give you an absolute answer one 24 way or the other. The point is that, having spent a lot 25 of time looking at latent fingerprints, this struck me page 97 1 as being not a typical fingerprint, not a typical single 2 finger touch. But I didn't have an absolute view on it 3 and I was interested to see what, you know, a number of 4 fingerprint experts would make of it and how they would 5 interpret it. 6 I said before lunch that there were general 7 differences between the appearance at the top and the 8 bottom of the mark, there is an area -- if I try and 9 highlight it with an oval -- there's an area here where 10 we're really not sure what's happening there. 11 Q. If you wait a second we will capture that. There's an 12 area there that you are not very certain about what's 13 happening? 14 A. Well, on that particular print we really can't see any 15 ridge detail at all and, in fact, the area is slightly 16 larger than that because up to the top left we've got an 17 area there where we can't see clear ridges. 18 Q. Just simply for the notes when you say an area it's the 19 top left -- 20 A. Can I erase that and re-highlight it and try and be a 21 bit more definitive. Something like that (indicated). 22 That's not terribly accurate but that's approximately 23 that sort of area there's a question mark. 24 Q. And the question mark, if I understand it correctly, is 25 you do not see going from left to right within that oval page 98 1 area the lines of ridge that you would expect? 2 A. I can't see clear continuity of ridges from left to 3 right. There was something slightly odd -- 4 Q. Again, if we capture that ... 5 A. Have you captured that? Would it be helpful if I leave 6 that there but perhaps draw another oval. There is 7 something slightly strange about the angles of the 8 ridges in this area (indicated). 9 Q. What is it that's strange about the angle of the ridges? 10 A. Well, there are two here that actually are very large 11 wide ridges compared with the ones here (indicated) and 12 they are close together but they're not converging 13 apparently to a characteristic, which is slightly odd, 14 and then we appear to have two fine ridges down here. 15 That really is my interpretation and I really would be 16 interested in what other experts make of it. 17 When you try and trace through ridges from the 18 right-hand side here (indicated) as you saw on the 19 tracings that we had up earlier, even Pat Wertheim ended 20 up with two ridges that apparently diverged or were 21 wider apart than they should be. 22 Can we bring that tracing up next to it? 23 Q. DB0172, page 8. 24 A. Right. Now, you see, if I can use the same tool, if I 25 try to highlight that, try and draw a line, this area page 99 1 here (indicated) we've got two ridges which are 2 unusually wide apart. I mean, that's not normal. So 3 this ridge in the middle that we can't see or is this a 4 break in the fingerprint? So there's something odd 5 about this. 6 There's possibly something odd down here (indicated) 7 as well because these ridges are a bit wide apart, as 8 these are. 9 Then what happens here? We've got tracings here of 10 a ridge, we've got a trace here of a ridge (indicated) 11 but no ridge in the interspace and, in fact, I would 12 question how confident we can be about these tracings 13 here. (Indicated) 14 Q. Now looking at the ridges, what we see on the screen and 15 I trust captured is a green sort of free hand oval? 16 A. Yes, and that's illustrates this ultra wide gap between 17 what Pat has marked as two ridges. 18 Q. Then at the top of the oval there is, in Mr Wertheim's, 19 an area of gap in the centre of the image? 20 A. Here. (Indicated) 21 Q. Then you have been looking at the four ridges 22 immediately above that gap which he's drawn in from 23 right to left and you're indicating there would appear 24 to be an abnormal distance between those features? 25 A. Here (indicated). page 100 1 Q. That's the second green circle as a first area of 2 abnormal distance and there was another area I 3 understood you to be pointing to just below that? 4 A. I'm not sure. I would really need to go back to the 5 original better quality photograph to see exactly what 6 was happening in this area and to see how confident we 7 are of those ridges that have been drawn in. 8 Q. We can help you because what we can do is put to the 9 right of the screen the marked up image and bring up 10 your own DB0138 and it is page 3, I believe, and we'll 11 need to rotate it and enlarge it. 12 Does that assist you to any extent? 13 A. Well, I'm not absolutely sure. But I would think the 14 general point that I want to make is that I didn't feel 15 that this was a single touch. I thought there was 16 something strange about the fingerprint and I thought 17 that getting the opinion of a number of experts would be 18 a worthwhile exercise. 19 Q. As I said by my opening question to you, if I take you 20 as indicating to us points on which we should be asking 21 for fingerprint experts to give an opinion, I will give 22 you just an opportunity to gather your thoughts by 23 reference to the original material you have with you 24 just now, have you exhausted the points that would be of 25 benefit for us to ask people about? Is there any other page 101 1 critical or obvious questioned area for you? 2 A. Well, I mean, to be honest, I would actually want to -- 3 my idea was to carry out a more objective assessment. 4 In other words, I didn't want to prejudge the issue by 5 telling experts what I thought was wrong with the 6 fingerprint. I wanted fingerprint experts to come upon 7 it afresh and see what they made of it because they 8 would have a lot more experience of looking at marks 9 than I would and I may have misjudged the issue. 10 Q. That is fine. I think perhaps if I understand 11 correctly, to even pose questions is perhaps to make 12 suggestions to the experts is basically the problem? 13 A. I wouldn't do it. 14 Q. That's fine. I'd better be careful what I do then. 15 In that case then, if I move away from that topic to 16 the last topic I think I have for you in my notes, I've 17 asked you earlier on about Mr Wertheim just to complete 18 that I think I left you with a bit of a puzzle as to how 19 you would have known before Mr Wertheim and Mr Grieve 20 gave evidence. What has been suggested to me and I will 21 just test this: you yourself gave evidence, as I said, 22 on the 6th, which would seem to be the Thursday, 23 6th May. You are e-mailing Mr Meagher on Friday 7th. 24 After you gave evidence on Thursday 6th, did you sit in 25 court to hear the evidence of any other witness, in page 102 1 particular did you sit in court to hear the evidence of 2 Fiona McBride? 3 A. I think I did, yes. 4 Q. What has been suggested to me is that a possibility 5 would be that from the questioning of Ms McBride you 6 might have understood, simply as a member of the public 7 benches, there was a question being raised of 8 mis-identification of the fingerprint. 9 Is that possible or do you not recollect? 10 A. I'm afraid I don't recollect it. 11 Q. That's fine. 12 In that case the final topic is to ask you not about 13 Mr Wertheim but your knowledge of Mr Swann. In relation 14 to your statement, paragraph 35 that's where it begins 15 and if I take you on to paragraph 38, what I want to ask 16 you about are the three references HO0103, 0104 and 17 0105. 18 If I begin with 0103, if I can just enlarge it, this 19 is a photograph of an envelope taken from your Home 20 Office file and, if I understand correctly, Mr Swann at 21 one stage sent you some images that you in due course 22 returned to him but you nevertheless took a photographic 23 reference of what you were returning? 24 A. Yes. 25 Q. If I understand correctly in the top right-hand stamp page 103 1 there is a date which very helpfully for us is 2 upside but looks to be 5th July 1999? 3 A. Yes. 4 Q. So we know this is a posting dating from 5th July 1999. 5 If I then take you to the next document they are 6 slightly out of sequence, HO0105, is this again your 7 photograph of items that Mr Swann did send to you? 8 A. I think so, yes. 9 Q. Chartings with, on the top, a with compliments slip? 10 A. Yes. 11 Q. We see that that has the date of 5th July 1999 and 12 Mr Swann writes to you: 13 "Dear Terry, a comparison chart herewith as 14 discussed PTO."? 15 A. Yes. 16 Q. If we go to 0104 is this the with compliment slip 17 reversed, as the instruction had been, PTO? 18 A. Yes. 19 Q. Perhaps if we could take that with compliments slip at 20 the top and enlarge it a little. Again, the initials 21 have beside them the date 5th July 1999. Is that 22 correct? 23 A. Yes. 24 Q. I will give you a chance and everyone else to read what 25 is written by Mr Swann. (Pause) page 104 1 Were you able to read that to yourself? 2 A. Yes. 3 Q. What I want to ask you about without asking you to 4 interpret that is do you know whether this arrived 5 unsolicited by you from Mr Swann or had you been in 6 contact with him beforehand? 7 A. No, I think what happened was at some stage I met up 8 with him. He -- well, at some stage he confirmed to me 9 that he had acted for the defence and then at the same 10 time or later we met up and I showed him and I think 11 gave him one of my photographs for him to mark up 12 because I said, "Well, you know, I'm interested in the 13 fact that you identified it. There's still a lot of 14 controversy over whether it's identical or not", and I 15 think actually he offered rather than me asking, I think 16 he offered to mark up one of my photographs which were 17 slightly better than the previous photographs he'd had. 18 He offered to mark one up and send it to me and that's 19 what he did. 20 Subsequently, at some stage when I was clearing out 21 my office in anticipation of retiring, I thought that I 22 should return it to him and at the time I thought, well, 23 although it's my photograph, as far as I was concerned 24 he had had ownership of the marking-up and I thought he 25 should retain it so I returned it and I gave it to him. page 105 1 Q. If we go back then to the markings-up and perhaps rotate 2 it so we can see the markings, these are the 18 markings 3 that Mr Swann is referring to in his with compliments 4 slip? 5 A. Yes. 6 Q. Did you study the markings? 7 A. I did at the time, yes. 8 Q. What impression did you have of the markings? 9 A. Well, I should preface this by saying I'm not a 10 fingerprint expert so anything I said, you know, is 11 purely, you know, a personal opinion and, you know, I'm 12 not prepared to express an opinion as to whether the 13 marks are identical or not. 14 What I will say is that I was unhappy with some of 15 the characteristics he had marked. I didn't think there 16 was sufficient detail in the mark to put that 17 interpretation on it. 18 Q. When you say the mark, do you mean the crime scene mark? 19 A. The crime scene mark, yes. 20 Q. So on what we are seeing on the page before us just now, 21 it's to the left with above it a mark? 22 A. Yes. 23 Q. There were some of the points there you had difficulty 24 agreeing with -- 25 A. Well, yes. They might be perfectly valid page 106 1 characteristics for all I know but what I'm saying is I 2 didn't think there was enough information in the image 3 to be sure of that and I think -- I mean, a good example 4 is number 8. Now I mean, that's been marked up as, is 5 that a ridge ending? I'm not sure. As far as I'm 6 concerned, it's a dot on a piece of paper on the 7 left-hand side and it could be a piece of dirt. I would 8 like to see rather more detail around that area to 9 define that characteristic. 10 There are some other ones. Number 10 and number 9. 11 Again, one could ask questions. Number 13 -- you know, 12 without going through all of it but ... 13 Q. So it just suffices for my purposes because I think the 14 way you have explained it is explaining it in the way 15 you are most comfortable with, instead of expressing an 16 opinion as a fingerprint expert on identity of 17 characteristics between mark A and the left thumb, you 18 are looking at the left-hand mark, looking at the 19 quality of the image and asking yourself is the image of 20 sufficient quality to enable me to know, for example, 21 with point 8, that that is indeed a significant 22 characteristic as opposed to being an artefact of the 23 image? 24 A. Yes, that's correct. 25 Q. Is that true of 9, 10 and 13 which you also mentioned? page 107 1 A. Yes. I mean, I think I would probably prefer more time 2 and a different environment -- 3 Q. Sorry, I didn't hear you. 4 A. To give you a definitive answer I might require more 5 time, but that is the sort of problem that I had with 6 the image. 8 is the most obvious example, 9 I think, 7 10, 13. They are at the periphery of the mark and it's 8 not clear if it's a genuine bifurcation or simply the 9 end of the finger that's been in contact with the 10 surface. 11 Q. If I can put it in lay terms, it's not clear whether 12 it's the end of the impression or the end of a ridge? 13 A. Or a ridge, exactly, yes. 14 Q. That's what you mean by the quality of the image here. 15 It's not, at the periphery, very clear whether you are 16 looking at something that truly reproduces a feature on 17 the finger as opposed to just being an artificial 18 product of the laying of the impression? 19 A. Yes, but I think it's particularly dangerous and 20 questionable around the periphery of an image. If it 21 was further into the centre of the image, then there 22 would be issues about whether the image quality was good 23 enough to resolve that ridge ending or bifurcation. 24 Here we have something right on the periphery and I 25 think it's potentially dangerous to interpret it one way page 108 1 or the other. But that, as I say, is a personal opinion 2 and I am sure a lot of people would disagree with it. 3 MR MOYNIHAN: I am very grateful to you. I have no further 4 questions. 5 THE CHAIRMAN: I will hear applications for leave beginning 6 with Miss Jones. 7 MISS JONES: Yes, sir, there are two points that I would 8 like to cover with this witness. Firstly, about what 9 guidelines -- I think the witness spoke about guidelines 10 issued to experts -- and, secondly, about the extent of 11 his knowledge of the current practice and processes in 12 Scotland. 13 THE CHAIRMAN: Yes. Very good. 14 Cross-examined by MISS JONES 15 Q. You spoke about the guidelines that you thought 16 fingerprint experts should be given but I wasn't 17 entirely clear what it was you were suggesting. You 18 seemed to be critical of moving away from the numeric 19 standard to a non-numeric standard but you also seemed 20 to be critical of the numeric standard itself. 21 I don't know whether you can perhaps clarify what 22 system is it you are saying ought to be followed? 23 A. My concern was the one that we were discussing earlier 24 about there being the two issues of the statistics of 25 the numbers of characteristics. If we've got page 109 1 unequivocal X characteristics what the probability is of 2 a fortuitous match in population, but there is the other 3 issue of the interpretation and I feel that fingerprint 4 experts aren't given enough guidance when it comes to 5 the sort of thing we were talking about a few seconds 6 ago, how good an image, how much information in the 7 image they should be looking for to decide unequivocally 8 that it is a ridge ending or a bifurcation or whatever. 9 So that's where I felt that we needed better guidelines, 10 more description of image quality and probably standard 11 images that could be used for training purposes. 12 Does that answer that issue? 13 Q. I think so but perhaps to some extent that perhaps leads 14 me on to the second question that I wanted to ask you 15 about. 16 Are you familiar with what training fingerprint 17 experts in Scotland undergo now? 18 A. No. 19 Q. So what I wanted to clarify was what period are you 20 speaking about. You have obviously got a lot of 21 experience in this area but I wasn't quite clear about 22 the sort of areas of training that you thought were 23 lacking and the extent to which you would be in a 24 position to comment on whether they were now there? 25 A. Well, I mean, obviously, most of my experience does page 110 1 relate to working with forces south of the border and, 2 prior to abandoning the 16 points, I did have numerous 3 discussions with the 16 Point Project Board and I can't 4 relate all the detail but we did talk through the 5 various issues with regard to training. 6 There was the intimation that abandoning 16 points 7 wasn't a problem because they were going to improve 8 training but nobody ever showed me in any concrete way 9 that the Fingerprint Service had moved forward, that 10 there had been some sort of quantum leap in their 11 understanding and the training. It seemed to me to be 12 more of the same and when I suggested adoption of things 13 like standard images, it was rejected out of hand. 14 I mean, there were other issues and, you know, the 15 question of blind trials, there were all sorts of 16 experiments that I, as a scientist, can design and have 17 designed to establish how much information somebody can 18 get out of an image. But there was never any openness 19 or desire by, as I perceived it, the Fingerprint Service 20 or the Police Service to investigate these issues. 21 Q. So when you are speaking are you really talking about 22 your experience in England and Wales, in English 23 and Welsh forces, as opposed to Scottish or -- 24 A. Well, as I said, I'm essentially talking about the sort 25 of response I got back from the 16 Point Project page 111 1 Steering Board. That was the official line of 2 communication that I had in the late '90s. I mean, any 3 other discussions were primarily private, one-to-one 4 discussions with experts in bureaux but from the point 5 of view of me advising the Home Office as to how the 6 Home Office should respond to the ACPO proposal to 7 abandon 16 points, the discussions took place with the 8 Project Board and I did go through their proposed 9 training programme and nothing that was being proposed 10 seemed to me to be taking the science any further and 11 seemed to be ignoring what was happening internationally 12 in terms of research. 13 Q. In terms of time period, what you are looking at is the 14 late 1990s? 15 A. Yes. It sort of came to a focus really in the late '90s 16 because that was when the submission went to the Home 17 Office to abandon the 16 points. But this had been 18 gestating since 1988, as I explained, from the Touche 19 Ross review and the Evett and Williams review in '89. 20 Q. So you are not advocating anything specific you are 21 saying fundamentally it is necessary to look from your 22 experience in the late 1990s the training that was 23 offered then and see whether that has improved matters 24 now? You are not -- I worded that badly. You are not 25 specifically saying the numeric should be reintroduced page 112 1 and it should be at a particular level? 2 A. No, no. I've never specifically advocated 16 points. 3 16 points I think worked reasonably adequately for 4 whatever it was -- 50 years. My concern was abandoning 5 a numeric standard, any numeric standard, without 6 replacing it with something that was robust and could be 7 tested. 8 Q. Then just to clarify really that your criticisms of 9 procedures that were followed aren't related to what the 10 practice is in Scotland just now because, I don't mean 11 this critically, but you don't really know what the 12 practice is in Scotland just now? 13 A. No, no, I certainly wouldn't comment on any practices. 14 Q. Because I think you made mention in particular of 15 comparing a mark with a ten-print at the same time and 16 the extent to which that could be criticised looking at 17 a suspect's mark before looking at a mark that was going 18 to be analysed and if I told you that that's not 19 practice in Scotland, then you're not going to be in a 20 position to comment? 21 A. No, I'm not aware of what current practice is. 22 MISS JONES: That was all, thank you. 23 THE CHAIRMAN: Mr Macpherson, do you have any application? 24 MR MACPHERSON: No, thank you, sir. 25 THE CHAIRMAN: Miss Grahame? page 113 1 MISS GRAHAME: No, thank you. 2 THE CHAIRMAN: Mr Holmes? 3 MR HOLMES: There are a couple of matters that I would like 4 to clarify, sir. The first concerns the use of the 5 non-numeric standard as opposed to a statistical 6 approach and the second concerns the involvement of 7 Mr Wertheim and the pictures that he himself produced 8 and the third is one particular question about the 9 production of images used in comparison. 10 THE CHAIRMAN: Yes. I will allow you to ask about all 11 three. 12 Cross-examined by MR HOLMES 13 Q. Thank you, sir. 14 Mr Kent, I would like to ask about your view over 15 the non-numeric standard. You seem to be disapproving 16 of the phasing out of the 16-point standard without 17 having it replaced by something. Is that correct? 18 A. Yes. I mean, I think the very term non-numeric standard 19 is a contradiction of terms. 20 Q. You have made mention of a statistical approach, an 21 approach whereby an expert could be expected to speak to 22 some degree of the probability of a match in court. Is 23 that what you mean when you -- 24 A. Yes, essentially, yes. 25 Q. Are you aware of such an approach being employed page 114 1 anywhere in the world right now? 2 A. No. I think there are a number of models that are 3 undergoing testing but I don't believe any are currently 4 used, although I'm told it could be imminent. 5 Q. So far as the non-numeric standard that is currently in 6 place is concerned, there are, are there not, different 7 views as to what might be the minimum number of 8 characteristics that an expert would be content to speak 9 to an identification on. Is that correct? 10 A. Yes, that's my impression, yes. 11 Q. Are you aware that some of the American experts have 12 even gone so far as to say that the minimum number of 13 characteristics (that is to say ridge endings, 14 bifurcations and so on and so forth) that one would need 15 to make an identification is none? 16 A. That doesn't surprise me. I mean, if you read the 17 Ne'urim Declaration then that's the implication. 18 Q. The reason for that would be because of what's called 19 third level detail. Is that correct? 20 A. I assume that that would be primarily the way one would 21 do it, although there are other issues, yes. 22 Q. Can you explain what is third level detail? 23 A. I spent a year on a working committee to try to define 24 third level detail so it's not trivial but, essentially, 25 it is a finer detail that is transposed from the finger page 115 1 to the surface and is developed finer than the primary 2 pattern information and minutiae information. So, I 3 mean, that could be the width of ridges, it could be the 4 way that ridges taper and fold and shape, the actual 5 edge. Some people have in the past have referred to 6 edgeoscopy which is the strange shape you get on the 7 edge of a ridge, it could relate to scar tissue. 8 Broadly they are the sorts of things one would have to 9 look for and, essentially, you would need a very high 10 quality image because a lot of this data is not visible 11 in a typical fingerprint. I mean, the finger mark that 12 we have been looking at today has very little third 13 level detail, if any, in it. A few pores but I mean 14 pores can be considered third level. 15 Q. Is it something you understand fingerprint experts when 16 examining a fingerprint will look for? 17 A. I think that it's interesting -- there is some quite 18 interesting psychology to do there in looking at what it 19 is in an image that gives an expert confidence. Some 20 will talk through very specifically what they will look 21 for and others have more of a holistic approach and they 22 are, if you like, recognising the whole image matching a 23 print rather than just counting out characteristics. 24 But I think certainly third level detail adds to the 25 confidence of an identification in some circumstances. page 116 1 Q. Can I move on to ask you about Mr Wertheim's involvement 2 particularly. You yourself were sent the door standard 3 to produce images, weren't you? 4 A. Yes. 5 Q. When you looked at Y7 initially was your assessment that 6 it had been powdered first with aluminium powder and 7 then after with black powder? 8 A. No. As I indicated in my original statement, I couldn't 9 see any trace that it had been powdered with aluminium. 10 That isn't to say it might not have been but I couldn't 11 see anything clearly visible to me. As far as I was 12 concerned, I was looking at a black powdered fingerprint 13 image. 14 Q. When you looked at the item itself, did you consider 15 applying further powder to the mark? 16 A. No, I didn't but you have to remember that I wasn't 17 being asked to enhance the fingerprint. In other cases, 18 most of the work that I was doing was about developing 19 fingerprints and enhancing them. So I was well-used to 20 doing that. There were chemical techniques we could 21 have used. But I was answering really the simple 22 question of: is it a natural fingerprint or a planted 23 fingerprint. So as far as I was concerned I didn't need 24 to make any further powdering of the fingerprint to 25 ascertain that. It wouldn't have helped me. page 117 1 Q. I wonder if you can look at one of Mr Wertheim's images, 2 DB0076. Do you recognise that as Y7? 3 A. Yes, I mean I do. It's obviously not a very good print 4 but I do. 5 Q. You can see in that photograph that there appears to be 6 a line across -- 7 A. The damage, yes. 8 Q. -- the bottom part of the mark. Is that something that 9 was present when you examined it? 10 A. No. 11 Q. Is that something that you can offer an opinion as to 12 the cause of? 13 A. That's really quite difficult. I mean, obviously 14 whatever it is, it's a light sort of brushing stroke. 15 It's not a very heavy -- you know, it hasn't been 16 scraped with a screwdriver but I can't tell whether it's 17 been brushed with a feather or a paint brush or a 18 fingerprint brush or somebody's shirt cuff, which is 19 probably the most likely if somebody is taking a 20 photograph. 21 Q. You have referred to it, though, as damage. Is that 22 damage to the mark itself? Damage to the detail that 23 you can see? 24 A. Yes. I mean, it's not obvious to me and I haven't seen 25 the production so I don't know whether the surface page 118 1 itself is damaged but clearly the distribution of black 2 powder has been disrupted. 3 Q. Is that something that could, in your view, affect the 4 ability of someone looking at the mark to see detail in 5 it? 6 A. Well, in this area, yes. It depends how crucial that 7 part is to the identification process. 8 Q. You, yourself, wrote a letter to Mr Bell about 9 Mr Wertheim's involvement with this case. I think it is 10 HO0003. 11 A. I think I know the one, yes. 12 Q. In it you express some concerns about Mr Wertheim 13 distributing photographs of his own. 14 What particularly caused you to be concerned about 15 that? 16 A. Well, I mean, it was that whole issue actually. At the 17 time I think that there were inquiries over here into 18 the whole issue and I thought it was unfortunate that 19 when I attended an International Association of 20 Identification meeting in the States and Pat Wertheim 21 and some others spoke about the case, there was general 22 widespread criticism of SCRO, the Fingerprint Service in 23 the UK. I just didn't think it was helpful and, of 24 course, the images that were being circulated weren't 25 the best images anyway. page 119 1 But I mean it was only a letter of information. 2 There was no other action. 3 Q. Finally, one specific thing about the production of 4 images for use by Fingerprint Officers. Would you 5 yourself produce different contrasts of a single mark? 6 A. You mean generally? 7 Q. Yes. 8 A. Yes, for -- I think the reasons are fairly well laid out 9 in my statement but some fingerprint experts like to 10 work with very black and white high contrast images. 11 They feel certain types of detail is more readily picked 12 out but, in fact, using a high contrast can actually 13 remove some of the fine detail so it's actually good 14 practice to print out a lower contrast with a broader 15 gray scale. So in a critical case, not in every routine 16 case but in a critical case I would normally recommend 17 printing out at least two or three different versions. 18 MR HOLMES: I'm grateful, thank you. 19 THE CHAIRMAN: Mr Smith? 20 MR SMITH: Yes, sir, I'd like to ask questions about the 21 issue of whether or not the mark was a double touch, a 22 few more questions about that; secondly, this witness's 23 knowledge of the experience and reliability of certain 24 of the personnel that have been mentioned and his 25 communication about it to them; and, finally, some views page 120 1 of this witness about the method of presentation to the 2 jury in this case and what he thinks might be better for 3 the future and perhaps give some guidance as to how 4 matters were dealt with south of the border. 5 THE CHAIRMAN: Yes. Thank you very much. 6 Cross-examined by MR SMITH 7 Q. Mr Kent, can I just understand, please, where your 8 expertise lies. You have given us some fairly detailed 9 information about your ability to look at a mark and 10 comment on some aspects of it. I'm wondering, in my own 11 mind, what separates you from someone, let's say, within 12 SCRO who has expertise in actually analysing 13 fingerprints. 14 Why is it you have not taken that additional step, 15 if I can put it that way, just so we can understand the 16 position? 17 A. Well, I've spent many years evaluating methods of 18 enhancing fingerprints. To do that, it meant that we, 19 my team, had to develop literally hundreds of thousands, 20 probably over the years millions of fingerprints but 21 more than that we have had to assess them because if 22 we're comparing process A with process B we need some 23 metric, some way of quantifying the performance of the 24 different reagents. 25 So over the years we developed various descriptive, page 121 1 what we called scoring or grading schemes. They are not 2 the same as a fingerprint expert does when he's looking 3 to make an identification. He's looking at 4 characteristics which match while we were looking for 5 intensity of reaction, contrast, detail. 6 So I've never spent a lot of time practising the art 7 or whatever it is of matching print A with mark B, if 8 you like. But on the other hand I have looked at a lot 9 of fingerprints and I've worked very closely with a lot 10 of fingerprint experts and seen the variability of their 11 performance. 12 I have worked on, you know, hundreds of high profile 13 cases so I have some experience of the types of 14 fingerprints that are being analysed and eventually 15 identified. But being a scientist I come to the whole 16 issue very differently to a fingerprint expert that is 17 trained to work in a very specific way with regard to 18 uniqueness and all these other issues. 19 Q. Surely -- 20 A. Does that help? 21 Q. Sorry to interrupt you. I wasn't sure you were 22 finished. 23 Can you maybe help us with this: south of the border 24 can you help us with what kind of qualifications a 25 fingerprint expert has to have, if any, and how one goes page 122 1 about obtaining these? 2 A. A fingerprint expert? 3 Q. Yes? 4 A. I must admit I'm not thoroughly up-to-date on this 5 because things have changed. When I think first joined 6 the service I think somebody had to work for seven years 7 in a fingerprint bureau comparing fingerprints, although 8 the definition was rather vague as to precisely what 9 role they took within the bureau. But they had to have 10 worked, I think, for seven years in a bureau. Then I 11 think it became five years, then I think there was a 12 move to saying it should be performance-related rather 13 than a strict number of years. There was an exam of 14 course as well. 15 Q. Was that externally monitored or was it just simply 16 in-house on-the-job training within a given bureau? 17 A. I think most of the training was in-house but the 18 fingerprint experts' exam I think -- well, I think you 19 really should talk to somebody else about this. 20 Q. I am happy to do that. I would like to ask you, 21 particularly against that background on the question of 22 whether Y7 is one touch or two. Can I ask you to look, 23 please, at your Inquiry statement, FI0052 if that could 24 be brought up, paragraph number 15. I think we can see 25 in 15 what is said is: page 123 1 "My initial impression when unpacking [I think it 2 was described as the door stop or doorframe possibly] 3 was that Y7 was not a clear continuous fingerprint. It 4 was quite distinct and could not be missed but gave the 5 impression of two areas of rather different density. My 6 initial thought was that it was either two partially 7 superimposed fingerprints or a double touch where there 8 was movement or slippage or rotation between the first 9 and second parts of the impression, possibly also with a 10 change of pressure which could account for the change in 11 density. This difference in appearance of the upper and 12 lower areas is I believe not so obvious in the 13 photographs I took and could be affected by lighting 14 angle." 15 Just to be clear about it, your initial impression 16 was two areas, two separate areas -- 17 A. Sorry, not separate: I mean superimposed areas or 18 overlapping areas but two areas, yes. 19 Q. I stand corrected. It does say impression of two areas 20 of rather different density, different density within 21 the same single area? 22 A. Overall, yes. 23 Q. Can I ask you to look now at the statement CO0296, 24 please, which I think is the report of 13th May 1998 to 25 the Procurator Fiscal, Ms Greaves, and can you go to the page 124 1 actual document and look at a number of paragraphs. I 2 am interested particularly in paragraph number 10, and 3 reading from 10 we can see: 4 "So far as the finger mark in black powder Y7 is 5 concerned I can see nothing unusual in its appearance." 6 Then 12 says: 7 "The ridge continuity is good with a quite uniform 8 adherence of powder, there is good resolution of fine 9 detail such as pores and the latter appear white." 10 Then if we can go on to 31, we see: 11 "The fingerprint which I understand to have been 12 identified as a left thumb print is not a complete print 13 but the side of the tip of the thumb." 14 In 33 you say: 15 "I am not qualified to comment on the identity of 16 the fingerprint but it is quite clear and contains a 17 number of well defined characteristics which I would 18 expect to be sufficient for an identification to be 19 made." 20 In 34: 21 "In consideration all of the above facts and having 22 spent some time examining the fingerprint on the exhibit 23 I am of the opinion that it was left in the normal way 24 by a finger." 25 I take it you are happy to confirm that nowhere page 125 1 within this document do you suggest that this would have 2 been two areas of different density pointing to either 3 superimposition of fingerprints or a double touch? 4 A. I think you have to realise the context in which I was 5 producing this report and I was asked to look at it to 6 say if it was a planted fingerprint. I mean, every 7 fingerprint, every finger-mark one sees may contain 8 areas of distortion. There may be all sorts of 9 artefacts. I think the main issue here I wanted to get 10 over was there was nothing that led me to believe that 11 it wasn't a natural fingerprint. I wasn't specifically 12 focussing on any other aspect of it. I wasn't 13 describing how continuous the ridges were across the 14 mark, for example. 15 Q. I understand. The question that you were trying to 16 answer was whether or not it had been lifted or forged 17 in some way, that's right. 18 A. Yes. I mean, even at a superficial glance it was 19 obvious there was damage in the fingerprint, that the 20 central area was not readable but -- 21 Q. But -- please go on? 22 A. As I say, I was focussing on whether there was anything 23 there that led me to think that the ridge detail was not 24 natural. 25 Q. But would it not be relevant to that question to point page 126 1 out that, in fact, this appears to be two separate 2 touches or something of the kind which would probably 3 point to it not being some kind of forgery? 4 A. I think although what I said in my statement is correct 5 about my initial feelings about when looking at the 6 mark, I'm not sure when I produced the report I would 7 have had the confidence to say categorically it's two 8 marks or it's a superimposition and I'm not sure that 9 would have been relevant to the question that was being 10 asked. 11 Q. Was it not quite an important factor, quite an important 12 point? 13 A. No, because I was looking for signs that this impression 14 had been made by, let's say, a rubber mould which would 15 have caused artefacts and background disturbance and the 16 appearance of bubbles and all sorts of things. 17 Q. Would it be correct to say that if there had been a 18 double touch there would be a likelihood of cross-over 19 of ridges? Do you understand what I mean? 20 A. Yes, absolutely, yes, indeed. 21 Q. Unless of course the print was put down exactly 22 contiguous to but not on top of the one below? 23 A. Or accidentally. I mean, you could have accidental 24 alignment, couldn't you -- or misalignment. 25 Q. Yes, but you were trying to look at the probabilities of page 127 1 that happening. What you would have to do to have this 2 two-touch print is to touch part of a finger on the 3 piece of wood and then touch another part of either the 4 same finger or different finger immediately above so 5 that the ridges have the broad characteristic of 6 following the same flow lines but immediately above it. 7 Do you follow what I'm trying to say? 8 A. Yes, I do. If I do that and then that (indicated) there 9 is a finite probability that the ridges are going to 10 line up, it may be one in ten but there is a finite 11 probability. 12 We have already illustrated this afternoon that 13 there are discontinuities and there were areas in the 14 centre of the fingerprint or fingerprints that actually 15 don't match up perfectly. We haven't got this clear 16 uniform set of ridges traversing the centre part of the 17 image. 18 Q. It may help if we could have up DB0172 at page 8, 19 please. I think you have looked at this already today, 20 which is Mr Wertheim's acetate overlay. 21 A. Yes. 22 Q. First of all, I take it you would agree with me that 23 what this was designed to do was to give assistance to 24 the jury as to how he was approaching the analysis? 25 A. Yes. page 128 1 Q. And of course I think you heard his evidence and he 2 explained that he had drawn in the lines where he 3 thought they should go but the reason the acetate was 4 used was to allow him to flick it backwards and forwards 5 to satisfy himself; is that correct? 6 A. Something like that, yes. 7 Q. I think you made some comment -- if we can perhaps zoom 8 in, please, as we can see there -- I think you made some 9 comment that there appeared to be in the blank area in 10 the middle, if we go down towards the right of that, 11 sort of down to the 4.00 position, there are a couple of 12 ridges that appear to be wider than you would have 13 expected. Do you see that? 14 A. Yes. 15 Q. I take it that you would agree that you can also, for 16 example, see towards the bottom left of the picture, 17 it's difficult for me to describe this but if you can 18 see where the image is to the extreme bottom left 19 there's an arc-shape, a semicircle. Do you see that? 20 If you can count in two ridges and then you come to a 21 gap; do you see that? 22 A. Yes. 23 Q. You would agree with me that the distance between that 24 ridge and the next ridge appears to be markedly greater 25 than the ridges broadly up towards the top of the page, page 129 1 maybe four or five ridges above; you see that? 2 A. Yes. 3 Q. So I can take it the distance between the ridges is a 4 variable concept? 5 A. I'm not saying it's constant but what I'm saying is I 6 think if we look at the right-hand side there are some 7 questions that should be asked. I'm not prejudging the 8 issue. 9 Q. Can we just keep that image there for the moment. I may 10 wish to come back to it. 11 I would like to move on if I can and ask you a 12 little bit about the various occasions of 13 communication with individuals. Can I ask you to look, 14 please, first of all, dealing with your views as to, I 15 think, Mr Swann's involvement, et cetera. Can I ask you 16 to have this inquiry statement, FI0052 in front of you, 17 please, at paragraph number 45. I will just read this 18 out. What you say in the statement is this: 19 "I have been shown a letter from within my file to 20 HMCIC, William Taylor, dated 8th June 2000 [and a number 21 is given] a letter from Terry Kent to William Taylor 22 dated 8th June 2000, in which I state that I have not 23 made photographs available to anyone other than Fiscals' 24 Office. I do not now understand why I have said this in 25 this letter as by that time I had sent images to Steve page 130 1 Meagher during the trial and recorded the fact in the 2 file and may have exchanged images with Peter Swann 3 after it. I would have had no reason to knowingly 4 mislead William Taylor and, indeed, I knew him and would 5 have told him what I had done." 6 You say: 7 "What puzzles me is precisely what question I had 8 been asked by William Taylor, presumably verbally, that 9 resulted in my response in my letter." 10 Can I ask you just to clarify, are you saying that 11 you don't think you sent that to Mr Taylor -- 12 A. No, no, no. I sent the letter. What I'm saying is I 13 don't know what the question was. I don't know the 14 precise form of the question and I don't know how I 15 received it, whether he rung me up or whether there was 16 a letter from him. You see, it doesn't fit actually 17 with the flow of the letter and ... 18 Q. Well, perhaps if we just go on and look at the letter 19 that was sent by yourself to Mr Bell which is HO0038 and 20 I think the relevant passage is the second last 21 paragraph. You see a section beginning: 22 "I thought you should be aware of the above, if you 23 have not already been informed, you should also be aware 24 that Pat Wertheim appears to be making the marks and 25 prints available to a variety of people on both sides of page 131 1 the Atlantic." 2 Can I ask you this, first of all: as far as that is 3 concerned you seem to be somewhat critical of Pat 4 Wertheim and I think your evidence earlier made that 5 clear. 6 Why was it you thought it was, I think your phrase 7 was, unhelpful for him to be doing so in what was 8 clearly a very important and interesting case where 9 there was a disputed mark? Why was that unhelpful? 10 A. I didn't think some of the discussion and some of the 11 tone of the discussion, which I allude to in that 12 letter, was very helpful. It didn't just revolve around 13 the detail of the fingerprint. A lot of it was about 14 police procedures, security of the crime scene, some 15 other issues. It was generally a very critical 16 approach. But, I mean, as I said earlier, this was just 17 an informative letter. 18 Q. I see that -- 19 A. It was up to Harry Bell to make whatever he -- in fact, 20 I think I was asked to put this in writing after 21 discussion with somebody. I think I'd spoken to 22 somebody when I came back from conference and I was 23 asked to document it. 24 Q. You see, I suppose it might be thought that you were 25 critical of Mr Wertheim in that letter for any page 132 1 discussion taking place, any at all, yet you were in 2 communication with Mr Swann about the issue; that's 3 right, isn't it? 4 A. Mr Swann had already had copies and was employed by the 5 defence. 6 Q. Yes, and you were in communication, at least certainly 7 in a one-way direction, with Mr Meagher during the 8 course of the trial. 9 A. As I said, we had an arrangement to exchange securely 10 information at a high level with the FBI. There was no 11 question of that information being leaked out anywhere. 12 That is quite different to presenting papers at public 13 conferences and putting, in some cases, quite slanderous 14 accusations on websites. 15 Q. I take it from that last comment you don't count 16 yourself in the camp of being in favour of Pat Wertheim 17 generally. Is that -- 18 A. Oh, no, no, no. I mean, I don't have any -- I just 19 didn't think it was the best way forward for the 20 Fingerprint Service. I would have liked to have seen a 21 more sensible discussion. I would be very happy to have 22 seen in the US, or anywhere else, presentations on 23 things like image quality, fingerprint interpretation, 24 standards. I mean, I would have been delighted to see 25 that but that wasn't the way it was being presented. It page 133 1 was -- 2 Q. I am sorry. Please continue your answer if you had not 3 finished. 4 A. Well, the way it was being presented was SCRO experts 5 are incompetent, they are possibly corrupt, the UK 6 Fingerprint Service is incompetent. So we did not come 7 out of it very well. 8 Q. Did you feel this was, to some extent, a personal 9 criticism against you? 10 A. Not at me, no, because everybody knew me as a scientist 11 not as a fingerprint expert so that didn't really affect 12 my standing at all. 13 Q. Could I ask you to look again at your Inquiry statement 14 FI0052 and what you say in paragraph 37 is this: 15 "It was not until after the trial that it was 16 confirmed to me that Peter Swann had been asked by the 17 defence to look at Y7 and when it was I wrote to the 18 Procurator Fiscal's Office to advise them as such." 19 Why did you write to the Procurator Fiscal's office 20 to advise them Peter Swann had been instructed on 21 Shirley McKie's behalf? 22 A. Again, it was as a result of a discussion. I can't 23 remember who it was with. I had heard at some stage 24 early on that Peter had probably been -- Peter Swann had 25 probably been involved but it wasn't until I met him, I page 134 1 think, some, probably some months later that he 2 confirmed to me that he had been retained by the defence 3 and that at some stage I mentioned this to somebody -- I 4 don't know who -- but we did have policemen from 5 Strathclyde attached to our unit in the Home Office so 6 it could have resulted from that discussion. Anyway, I 7 was asked to document this, which I did. 8 THE CHAIRMAN: It is very natural to turn to the questioner 9 but I think it makes it more difficult just to pick up. 10 A. I'm sorry. 11 MR SMITH: Can I just be clear about this, Mr Kent: you were 12 asked by someone to write to the Procurator Fiscal to 13 say that Shirley McKie had, in fact, retained Peter 14 Swann? 15 A. Yes. 16 Q. Did Peter Swann ask you to do that? 17 A. No. 18 Q. You think it might have been someone who was involved 19 with Strathclyde Police; is that correct? 20 A. Well, I'm thinking of the contacts that I had at that 21 time and I don't recall many conversations with people 22 from SCRO but I did have occasional contact. I had 23 occasional contact with Chief Inspector Hogg, head of 24 Scenes of Crime, and I had almost day-to-day contact, I 25 think, with policemen attached to the Home Office from page 135 1 Scotland, from Strathclyde. 2 Q. You see, Mr Kent, I take it you understand that this 3 appears as though you are taking a side and a side 4 against Shirley McKie by reporting her to the Procurator 5 Fiscal following her trial. 6 Do you understand it may look like that? 7 A. Well, I wouldn't pretend to understand the niceties of 8 the situation and, in fact, from memory I think I did 9 have some hesitation in whether or not I should actually 10 do this or discuss it. Peter Swann made no secret of 11 the matter when I met with him. I've known Peter for 12 many years and I seem to remember being somewhat 13 surprised when it was suggested that I should notify the 14 Fiscal about this but as I say ... 15 Q. Why were you surprised? What was your concern and 16 hesitation about communicating with the Procurator 17 Fiscal about this matter? 18 A. I don't know what issues are between the defendant and 19 their counsel and their experts. I really don't know 20 what the procedure is in Scotland and whether this 21 should or should not be disclosed. 22 Q. So can you understand that Mr Swann by this stage was 23 quite distressed or bitter about what had happened? Is 24 that fair? 25 A. No, not at all. In fact, he was quite upbeat. He was page 136 1 really quite open about the whole issue. 2 Q. Can I ask you to look, please, at another document 3 CO1230. I will tell you for the moment this is a 4 statement by Robert Mackenzie to the Mackay Robertson 5 Inquiry in July 2000 and I'm sorry, I am just checking 6 for a paragraph. It is the paragraph beginning: 7 "During May 1999 at the trial ..." 8 Yes, it is at the top of the page. You see what is 9 said on this page is: 10 "During May 1999 at the perjury trial of Shirley 11 Cardwell/McKie information was received via Charles 12 Stewart and Fiona McBride who had a conversation with 13 Terry Kent (scientist) who had attended as a witness at 14 that trial who related that Peter Swann (independent 15 fingerprint officer/expert, et cetera) had discussed 16 that case with Terry Kent and told him that having been 17 previously asked to examine the crime scene mark in 18 question (on behalf of the defence) he, Swann, had sat 19 down with Ms Cardwell and her parents and solicitor and 20 they had been informed by Mr Swann the crime scene mark 21 in question was that of Shirley McKie." 22 You will understand what is being suggested and it 23 is a little second and third-hand but the suggestion 24 appears to be that a source of information, Charles 25 Stewart and Fiona McBride had a conversation with you, page 137 1 effectively, during the trial and at that stage Peter 2 Swann's name is mentioned as having been involved. 3 Are you able to explain whether you wish to stick 4 with what you say about when Peter Swann advised you, ie 5 later or whether it may have been during the course of 6 the trial you were aware? 7 A. No, my memory of this is that at some stage early on, 8 whether that was just before or just after the trial. 9 There was a rumour that another independent -- an 10 independent expert had looked at the mark and there was 11 a rumour that it was Peter Swann. Now I didn't start 12 that rumour because Peter hadn't told me so I think 13 there's a misinterpretation there. If that had been the 14 case, there would have been no point in my writing six 15 months later to confirm that it was Peter Swann. 16 Q. Excepting you're making it official when you wrote to 17 the Procurator Fiscal. 18 A. Sorry? 19 Q. It's a different thing to write to the Procurator Fiscal 20 than it is to say something in passing conversation. 21 A. Indeed, but I'm quite confident that I wasn't the source 22 of this rumour or whatever it was at the time of the 23 trial and, in fact, actually when I -- so is there a 24 suggestion here that this happened pre-trial or after 25 the trial? What's the detail? page 138 1 Q. My understanding, the way I read it, is it was during or 2 close to, one way or the other, the trial taking place 3 rather than some months after the trial had concluded? 4 A. Well, when I went into the waiting room for witnesses at 5 the trial Fiona McBride, who I didn't know, was there 6 and I think for part of the time one other person. I 7 certainly didn't discuss that sort of detail with her 8 and I didn't meet her subsequently. 9 Q. So you are saying this is probably wrong -- 10 A. I think, you know, a failure as to what happened when 11 but I am quite confident of that. I hadn't met Fiona 12 McBride prior to the trial. I didn't know who she was. 13 She introduced herself in the witness room. I was 14 actually very cautious what I said in the witness room 15 prior to me going into the box because obviously one 16 never knows who you're talking to. Subsequent to her 17 giving evidence I don't think I spoke to her. We spoke 18 over the phone many months later but on another 19 matter -- but no. 20 Q. You have told us you knew Peter Swann for some time? 21 A. He'd worked with us at the Home Office. He had been 22 attached to the Home Office for two years. 23 Q. Would you consider him a friend of yours? 24 A. Yes. 25 Q. I'd like to ask you about David Grieve. Is he someone page 139 1 whose experience and knowledge is known to you? 2 A. I know him because he is the editor or was the editor of 3 one of the international fingerprint journals and we've 4 met at two or three conferences, but I don't know a 5 great deal about him or his experience. 6 Q. That's the Journal of Forensic Identification? 7 A. That's right, yes. 8 Q. Did you see Mr Grieve giving evidence in court? 9 A. I think I did. 10 Q. Do you recall him indicating that he had been involved 11 in the analysis of fingerprints from 1965. Is that 12 something you remember? 13 A. No, but it doesn't surprise me. 14 Q. And did you subsequently hear evidence that he has been 15 involved in numerous seminars, training programmes, 16 et cetera, et cetera, throughout the world? 17 A. Yes. 18 Q. I take it you would have every confidence in his ability 19 as an expert fingerprint examiner, would you? 20 A. I think that's a difficult question to ask a scientist 21 you see because I hope I haven't said anything today to 22 indicate -- you know, I'm not criticising fingerprint 23 experts. They come to their decisions because of their 24 background and experience. They are not always right 25 and sometimes when they come to a decision, even if page 140 1 they've got 50-years' experience, I may feel that, as a 2 scientist, that there isn't enough information in the 3 fingerprint to make a confident identification. That 4 doesn't mean they are wrong but I just don't -- I'm just 5 not confident. I mean, this happened with the McNamee 6 case. I knew the expert as a friend. He had 30-years' 7 experience but, you know, I argued there wasn't 8 sufficient data in the image to make a reliable 9 identification. That's only my personal opinion and I 10 could be wrong. 11 Q. Just sticking with David Grieve, we heard from Sheriff 12 Murphy, who was the prosecutor in the case and for those 13 of us who have access to the transcripts, it's at 14 page 91 of the transcript on 25th June. 15 What he said was this -- he refers to a meeting with 16 your goodself and he says this: 17 "He [that is you] indicated to me that the 18 procedures were already underway to move away 19 from 16-point to non-numeric identification in England 20 and Wales and, as part of that, the Home Office had sent 21 some people to the United States to study what had 22 happened with a view to training people who would 23 eventually train other people and lead to a sort of 24 filtering down in their system. 25 "One of the people, one of significant people they'd page 141 1 spoken to in the United States, was David Grieve who was 2 regarded as having a very high formidable degree of 3 expertise in the question of fingerprint 4 identification." 5 Sheriff Murphy's view seems to be that you held a 6 fairly high regard for David Grieve when he spoke to 7 you. Is that something that you're sticking with or 8 saying it's not really for you to comment or Sheriff 9 Murphy just picked you up wrong? 10 A. It's quite likely that I would have discussed the issues 11 surrounding the abandoning the 16 points and some of the 12 processes that there were underway. I'm a little 13 surprised that he should think that I was, if you like, 14 promoting the position of David Grieve because there 15 were a number of other experts. People like David 16 Ashbaugh were being consulted. In fact, David Ashbaugh 17 came over to the UK and gave a number of presentations 18 and was probably the leading expert from the other side 19 of the Atlantic to provide training for fingerprint 20 experts in the lead-up to abandoning 16 points. So I 21 wonder just whether there's a confusion between David 22 Ashbaugh and David Grieve. 23 Q. I think what he says is one of the people, et cetera, 24 was David Grieve who is regarded as having a very high, 25 formidable degree of expertise. You will appreciate page 142 1 that Sheriff Murphy had the benefit of hearing David 2 Grieve in action in court. 3 A. Sure. 4 Q. And no doubt he would be thinking that he was mentioning 5 this as the fellow I heard in court. As far as we can 6 work out David Ashbaugh's name was mentioned in the 7 course of the trial but do you not agree that -- are you 8 saying that you wouldn't have said that -- 9 A. To be honest, I find it highly unlikely that I would 10 have said that. Not that I have any criticism of David 11 Grieve but, you know, he would not necessarily be top of 12 my list. I might have given a list of possible people 13 that could be involved in this sort of exercise but I 14 don't believe I would have focused on David Grieve 15 because I don't know his fingerprint expertise well 16 enough to make that sort of point. 17 Q. I will deal with various individuals from the other side 18 of the Atlantic. The IAI, you mentioned. Can you tell 19 us a little bit about that organisation from your 20 perspective. You obviously attended meetings. Are you 21 a member of the IAI? 22 A. Yes. 23 Q. For how long have you been a member? 24 A. I'm a lifetime member and I probably joined round about 25 1980 or '81. page 143 1 Q. And would you consider it to be a responsible, 2 independent organisation for the consideration of views 3 across a broad spectrum of various aspects of forensic 4 examination? 5 A. I think it's a useful forum. It has its limitations and 6 there are other organisations and establishments that 7 perhaps are tackling some issues in a much more specific 8 way and I'm thinking of people like ANSI/NIST who are 9 setting up standards in the US. I mean, they've got 10 people on there from the IAI but they are not an IAI 11 unit. I mean, they are an American Government unit and, 12 you know, they've got people -- I mean, they've got a 13 subgroup CDift that are looking at image quality but 14 the IAI is a useful organisation. It's one of a number 15 of organisations worldwide. 16 Q. Are you aware the IAI has set up a Y7 Committee to 17 consider the analysis of Y7? 18 A. I'd heard something to that effect, yes. 19 Q. You had heard that the committee concluded it was not a 20 match, did you? 21 A. I didn't read the detail but I think that was a foregone 22 conclusion. 23 Q. I am sorry, did you say that was a formal conclusion? 24 A. I said a bit of a foregone conclusion. I've heard from 25 so many people from the other side of the Atlantic and page 144 1 elsewhere that it wasn't identical that ... but, to be 2 honest, to me that's not really relevant to my interest 3 in fingerprint identification. 4 Q. I would like to ask you a bit about the statement you 5 have written regarding the different methods of analysis 6 of fingerprints, in particular the induction method, if 7 I can put it that way, for your comments. 8 Can I ask you if we go to your Inquiry statement, 9 paragraphs 55 to 56. I wonder if we could have that 10 called up FI0052. I think paragraph 55 at page 17, I 11 think it is. I think you spoke to some of this but I'd 12 like to expand a little bit on it. You say: 13 "The Dutch fingerprint experts do something which I 14 think of as best practice where they are required to 15 assess a latent fingerprint before they ever see the 16 suspect ten-print with which it is to be compared and 17 mark the characteristics they can see from that. When 18 conducting their comparison with the ten-print, they are 19 then only allowed to compare those characteristics that 20 they originally found on the latent. The McNamee case 21 illustrates just how badly things can go wrong when such 22 a practice is not used by experts. We then have a 23 practice by some referred to as teasing out the points." 24 Just pausing there for a moment, I think we can 25 understand what is being suggested there but are you page 145 1 aware of any work done in particular by Dr Dror? 2 A. Itiel Dror, yes. 3 Q. Where I think the thrust of what he is saying is there 4 can be almost a confirmation bias? 5 A. Contextual bias, yes. 6 Q. So if somebody looks at the inked mark and thinks, "I'm 7 looking for a ridge ending at this point", and they look 8 a bit of a mess on the latent and you convince yourself 9 you are seeing that ridge ending, that is the broad 10 thrust of it, isn't it? 11 A. Yes, although he is looking at wider issues as to 12 whether or not there may be political or local pressure 13 on an individual to make an identification, yes, and 14 looking at things like how serious is the case and 15 whether this affects interpretation. 16 Q. I would like to ask you a bit about -- we don't need to 17 read 56 but just picking up from that there was a 18 reference a couple of times in your evidence to the 19 Evett & Williams study which is, I think, in fact 20 covered in your statement to the Inquiry. 21 I think we have seen some information doing the 22 rounds that the way this system operated was really an 23 experiment to see how analysis might be carried out by 24 different individuals. Is that right? 25 A. Yes. page 146 1 Q. I think a suggestion has been made previously that the 2 Dutch participants in this system were only able to 3 identify a reduced number of latents against the marks 4 compared to, for example, SCRO who found more. Do you 5 follow? 6 A. Yes. 7 Q. Would you agree with the suggestion, if I was to put it 8 to you, that that might indicate a more cautious 9 approach by the Dutch rather than an erroneous approach 10 by the Dutch? 11 A. Of course, yes. 12 Q. What they are saying is, "There are only three in this 13 bundle of ten and I would be prepared to put my hand up 14 and say that's a match", whereas someone who is less 15 concerned about it might say, "I see eight", would you 16 agree that there could be no criticism of the Dutch -- 17 A. Yes, it's the price you pay. Are you prepared to accept 18 you will make more misses on the grounds that you are 19 not going to falsely convict people. 20 Q. So to somebody who is over-assessing may be giving an 21 opinion, could be giving an opinion that's wrong because 22 it's wrongly identifying, someone who is under assessing 23 is perhaps letting someone who is guilty go free but 24 that is the balance between? 25 A. Yes, indeed, and I wouldn't make any comment about page 147 1 whether the Dutch have got it right or not. 2 Q. Mr Arie Zeelenberg, is he someone you have come across? 3 A. Yes. 4 Q. I take it that you have come across him other than in 5 the context of his input into this particular case? 6 A. Yes. 7 Q. I think he is often a speaker at IAI conferences; is 8 that right? 9 A. Yes, and elsewhere, yes. 10 Q. He has a fairly formidable CV in fingerprint science, 11 doesn't he? 12 A. Yes. 13 Q. Are you aware he was asked to provide some assistance as 14 an expert in the aftermath of the Shirley McKie case? 15 He was invited to provide that help. Are you aware of 16 that? 17 A. Yes, I'd heard a list of names of people who were 18 involved at various times, yes. 19 Q. As far as Mr Zeelenberg is concerned, I realise you are 20 not a fingerprint expert in the narrow sense we have 21 been considering, but do you have any doubt as to his 22 ability and integrity indeed? 23 A. I really wouldn't comment. I mean, as far as I'm aware, 24 he's got a good reputation in the Netherlands. He's 25 been responsible or was responsible for the Fingerprint page 148 1 Bureau for an awful long while so -- and although we've 2 had numerous discussions and he's a man of strong views, 3 I've found discussion with him interesting and helpful 4 but I wouldn't comment on his ability as an expert. 5 Q. I would like to deal hopefully fairly briefly with Pat 6 Wertheim. 7 THE CHAIRMAN: I wonder, if you are moving to a different 8 subject, we had better take the afternoon break now so 9 we will take it for ten minutes to 3.25 past. 10 (3.17 pm) 11 (A short break) 12 (3.27 pm) 13 MR SMITH: Mr Kent, can I ask you please -- well, first of 14 all, I wanted to ask you about Mr Wertheim. I think a 15 couple of times in the course of the evidence you 16 referred to having looked at was it an article or 17 articles concerning transposition or forgery of 18 fingerprints that were written by Mr Wertheim. 19 A. I'm not sure. There was one article in the Journal of 20 Forensic Identification. There may have been only one. 21 I'm not sure. I think at the time I did do a search and 22 there were one or two other papers from other people but 23 I can't recall now whether Pat Wertheim had published 24 one or more. 25 Q. I take it though he was or did his name just pop up in page 149 1 the search of the database you were carrying out? 2 A. Well, I actually was familiar. We had, at the Home 3 Office, we attempted to keep a rolling bibliography of 4 any papers that were relevant to the area of research we 5 were in and we've done that since the early 1970s. So 6 we have practically every reference paper. 7 Q. Did you find his article of any use? 8 A. Since I had a background in -- well, I was familiar with 9 most of the technologies that were being referred to. I 10 found it of some value but nothing staggeringly new, I 11 don't think. I haven't reread it since 1998 so ... 12 Q. As far as his opinion is concerned on something like 13 that, the transposition or forgery of fingerprints, is 14 it something you would be prepared to give some degree 15 of credence to, even back then? If it had been written 16 by Pat Wertheim would you be prepared to accept his 17 opinion may be of some value? 18 A. Certainly may be of some value. I think as a scientist 19 one learns that when reading scientific papers one 20 always has to have a fairly critical and cynical eye 21 because not everything that is written is correct, of 22 course. 23 Q. But you didn't, as far as you can recall, you didn't 24 come to the conclusion that it wasn't worth the paper it 25 was written on, did you? page 150 1 A. No, I certainly wouldn't say that, no, and from memory 2 there weren't many papers written so in that sense it 3 was valuable to have somebody's view on it and a 4 fingerprint expert's view, yes. 5 Q. I would like to turn now to the question of actually 6 presentation of evidence in fingerprint cases if you can 7 help us with that. 8 Before embarking on that I think it's fair to say in 9 your statement to the Inquiry you are somewhat critical 10 of Pat Wertheim's, either his method or content of his 11 presentation, just so I can be clear about that. In 12 paragraph number 30 within the Inquiry statement what 13 you say is this, it is fairly short but I will just read 14 it out: 15 "During his evidence Pat Wertheim used a very 16 simplistic argument that may have had a very strong 17 effect on the lay jury, which I thought was totally 18 wrong, even if his conclusion was correct." 19 You say what he did was to find three or four 20 characteristics from the top of the Shirley McKie left 21 thumb impression and said, transferring over to the 22 scene of crime mark, Y7, that those characteristics were 23 not there at the top of the mark and you explained how 24 he drew various lines. 25 The phrase you use is that you thought it was page 151 1 totally wrong. Can I just be clear about this: is it 2 because you were of the view that the top part of the 3 mark may not have been part of the entire mark or was it 4 the actual mechanism of the presentation by the acetate 5 sheets, et cetera? 6 A. I think it revolves really around what the role of an 7 expert is when presenting evidence in court. I think 8 the first role of the expert is to come to a conclusion 9 and staid that conclusion to the court but very often, 10 particularly in fingerprint evidence, experts are then 11 expected in court to justify their conclusion and, of 12 course, there isn't the time to go through every detail. 13 You may not have appropriate equipment to analyse the 14 fingerprint. So, I mean, I don't necessarily criticise 15 an expert for being somewhat simplistic in their 16 interpretation. 17 What I thought was potentially misleading was 18 picking on two very particular characteristics at the 19 top of the finger-mark that weren't in the rolled 20 impression of Shirley McKie saying there was clearly 21 continuos ridge detail from the top to the bottom of 22 the mark ipso facto it's not the thumb print. 23 That I thought was potentially misleading to the 24 jury and it would have been better if he had said -- I 25 mean, bearing in mind that SCRO were identifying the page 152 1 bottom part of the fingerprint I think he should have 2 focused on the bottom part of the fingerprint and said 3 this is why the bottom area is not from the thumb. 4 Q. We've obviously had access to transcripts of his 5 evidence and the documentation but you're aware aren't 6 you that he also identified in the bottom part of the 7 print -- 8 A. Yes, I am aware of that. It's just the way it came 9 across, I thought that the first part or the part where 10 he rated the top characteristics was actually, it seemed 11 very clear to a lay jury and I thought it could sway 12 them. 13 Q. I don't think anyone who is in here has necessarily 14 heard the way the evidence was presented but do you 15 agree with me, you having seen the evidence, that what 16 Mr Wertheim was doing was saying, "I will show you where 17 I think the differences are between these two." I am 18 correct, aren't I? 19 A. Sorry, yes, but, I mean, he highlighted two 20 characteristics that may not be relevant because they 21 may not be connected to the mark in question. 22 Q. Yes, but it was said to the jury, wasn't it, the reason 23 for the acetates was the jury should satisfy themselves 24 about the matter and not just the witness saying, "I'm 25 telling you these two at the top are not there on page 153 1 Shirley McKie's mark"? 2 A. Yes, but I've spent, you know, nearly 40 years looking 3 at fingerprints and I can't satisfy myself quickly so I 4 certainly wouldn't expect a lay member of the jury to 5 satisfy themselves quickly. 6 Q. If you take it from me, Mr Kent -- 7 A. It was the issue about the presentation that I was 8 questioning and that I was interested to do an 9 experiment over. I've never disputed Pat Wertheim's 10 decision on the identity. That's not the purpose of my 11 questions. 12 Q. If you take it from me it's a fundamental rule in the 13 courts of Scotland that a witness, even an expert 14 witness, has to be able to explain why he has reached a 15 conclusion, not just that he has reached that 16 conclusion. Take that from me. 17 Would you agree with me that what Pat Wertheim was 18 trying to do was comply with that. This is why he 19 reached the conclusion? 20 A. Yes, but I still say part of the why may have been 21 wrong. 22 Q. That may be so but that is a matter for the jury to 23 judge on the information they have. You agree with 24 that, don't you? The jury have the power to -- 25 A. It's only my opinion about how another expert has page 154 1 expressed their opinion. 2 Q. I would like to look please at the documents that we 3 understand are prepared by SCRO in a trial. Can we have 4 perhaps up DB0012 and if we can flick on to the 5 immediately following page, can we go ahead a page 6 please. 7 We can see obviously photographs of the mark in 8 situ, and the next page, this if you take it from me was 9 what at that time was a traditional presentation to a 10 jury by SCRO and a comparison between a mark and a inked 11 print. 12 First of all, have you seen a document like this 13 before? 14 A. Sorry, do you mean this one or similar? 15 Q. Similar. 16 A. Similar, yes. 17 Q. Is this the kind of document that was prepared when 18 cases were presented in the courts in England, to your 19 knowledge? 20 A. Yes, not always, sometimes charts were not requested but 21 if it was requested to be marked up, times five 22 enlargements were normally provided. 23 Q. As far as the image on the left-hand side are concerned 24 can I ask you, have you seen this document before? 25 A. I couldn't be sure, to be honest. page 155 1 Q. Have you seen any of the productions prepared by SCRO 2 for the purposes of the McKie case? 3 A. Well, I think I saw them being presented in court. I'm 4 not sure that I've ever had the opportunity to closely 5 examine them. 6 Q. We can possibly deal with this in very short compass, 7 Mr Kent. The image on the left-hand side, would you 8 agree with me -- recognising of course this is a copy of 9 a copy -- but would you agree with me that it's very 10 difficult to discern anything about what's going on in 11 the left-hand image, isn't it? 12 A. Well, of course, I don't know what the original was 13 like. The way it's been produced on the screen here, 14 the screen, the density is so high that it is difficult 15 to discern anything, yes. It comes back to the comment 16 I made earlier about printing at different densities to 17 bring out information. 18 Q. We have also heard some evidence that the charting 19 enlargement machine was used for the purposes of 20 preparing the images. Are you familiar with a machine 21 known as a charting enlargement machine? 22 A. I'm not sure which machine they would have used. Is it 23 one associated with the AFIS system or ...? 24 Q. No, I don't understand it is with the AFIS system -- 25 A. In which case I think I'd better say I'm not familiar page 156 1 with it then. 2 Q. Can I ask you this: as far as you know and you may not 3 know, as far as you know, south of the border whenever 4 there was going to be a presentation with images 5 produced, was it done by a digital machine, some kind of 6 machine to cut, shape, intensify or whatever the images 7 or is it done through perhaps what is called wet 8 photography? 9 A. I have to say I couldn't tell you precisely at what 10 stage there was a switch over. Certainly well into the 11 '90s wet photographic technology was being used but at 12 some stage digital scanners and enlargement systems and 13 adjuncts to AFIS systems were introduced so I really 14 don't know what was current practice and it probably 15 varied. 16 Q. In your view, is a digital representation better than, 17 worse than or just the same as the traditional wet 18 photography system? 19 A. The best digital systems can be as good as good 20 conventional photography. 21 Q. Can you give us any reason why you would change to 22 digital if they are only going to be as good as and not 23 better than traditional photography? 24 A. Primarily, I guess getting rid of wet film technology 25 and reproducibility of images, circulation of images on page 157 1 networks, a whole raft of reasons. 2 Q. As far as you understand the operation of the digital 3 machines, is there any reason, any technical reason why 4 the entire print could not have been reproduced on such 5 a document? 6 A. I really can't say. It would depend whether this was 7 done on a digital camera or a scanner. It depends what 8 resolution, bearing in mind at that time there were 9 limits to things like chip sizes for cameras. No, 10 without knowing about the technology, I couldn't comment 11 really. 12 Q. We can see on the left-hand image, the bottom third of 13 it perhaps has really no points of reference. Do you 14 see that? 15 A. Certainly in the bottom 25 per cent, I would say, there 16 aren't even any vestigial ridges visible. 17 Q. So whatever else we could, one presumes, move it up by. 18 A. Yes. 19 Q. So we could get another 25 percent in the top half 20 included in that image. 21 A. Yes. 22 Q. Similarly, if you look at the right-hand image, probably 23 the bottom half of that image has nothing with a line 24 going to it, you see that? 25 A. Yes. page 158 1 Q. Accordingly, we could another -- at the bottom half, as 2 it were, we could slide the camera up or the image up 3 and get another bit towards the top? 4 A. Indeed, yes. 5 MR SMITH: Thank you very much, Mr Kent. 6 MISS GRAHAME: Mr Chairman, I am sorry to interrupt but 7 there's one matter I ought to have asked about. It was 8 in connection with a possible conversation the witness 9 spoke about with Denise Greaves, the Fiscal. 10 THE CHAIRMAN: Very good, there is something you want to 11 clear up about that. 12 Cross-examined by MISS GRAHAME 13 Q. Mr Kent, you received a letter of instruction from the 14 Procurator Fiscal, Mrs Denise Greaves on 15 12th March 1998. We looked at that earlier. 16 At an early stage in your evidence today, this 17 morning, you commented that you would have picked up the 18 phone and said, "I can do 1, 2 and 3. I can't do 5 or 19 6". Do you remember saying that? 20 A. Yes, I do, yes. 21 Q. You said you probably would have said, "If you want 22 advice on the statistics you'll need to talk to 23 Professor Champod"? 24 A. Yes. 25 Q. But you also said that you did not recall having that page 159 1 conversation with Mrs Greaves? 2 A. That's right. I can't recall the conversation but, I 3 mean, I would have reacted. I wouldn't have left those 4 points not covered. Knowing immediately I opened the 5 letter that there were things I wasn't prepared to take 6 on. 7 Q. I know that you said that earlier in your evidence. I'm 8 wondering -- we've heard from Denise Greaves and she has 9 not made any mention of being advised by you to speak to 10 or seek advice from Professor Champod and there is no 11 mention of that in the report or your covering letter to 12 Mrs Greaves. 13 You also spoke about there being a delay between 14 March when the letter of instruction was received and 15 May when you issued your statement or report and talking 16 about holidays and things during that period. 17 I'm wondering if you could perhaps have been wrong 18 in saying that you would have picked up the phone and 19 perhaps you have made a mistake. 20 A. I am confident that I would not have ignored that 21 element of the letter and if I hadn't dealt with it by 22 some other means I would have referred to it in my 23 report. So that's why I'm confident that I did 24 something and the way I would normally have acted would 25 have been to pick up the phone and phone somebody. page 160 1 I mean, the possibilities really are that Denise 2 Greaves has forgotten or that I spoke to somebody else 3 in the Fiscals' Office or that I spoke to somebody else 4 in Strathclyde rather than the Procurator Fiscal's 5 Office but I really don't recall but I am quite 6 confident that I would have carried out an action. 7 Q. When you say Strathclyde, who do you mean? 8 A. Well, I mentioned earlier that my probably most frequent 9 contacts had been with Ian Hogg and with the Fingerprint 10 Development Unit and laboratory at Pitt Street but I had 11 occasional contact with SCRO but I think my first point 12 of contact probably would have been, you know, to phone 13 up the person who had written me the letter. 14 MISS GRAHAME: Thank you. I have no further questions. 15 Re-examined by MR MOYNIHAN 16 Q. Sir, I have only two questions just to tidy up some 17 references in the transcript where I don't think you 18 have been picked up. 19 You mentioned when you were first asked questions by 20 Mr Holmes about American experts perhaps making an 21 identification on no second level detail. You mentioned 22 a declaration and the name of the declaration wasn't 23 picked up. 24 Were you referring to the Ne'urin. 25 A. Ne'urin Declaration in 1995 in Israel. page 161 1 Q. That is N-E apostrophe U-R-I-N? 2 A. That's right, yes. 3 Q. So that is page 110 if it helps in due course and the 4 second reference at page 137 has gone down -- and you 5 were being asked about American organisations the IAI 6 was what you were being asked about and you said there's 7 another organisation and it's gone down in the 8 transcript is ANSI/NIST? 9 A. It's ANSI/NIST. 10 Q. And ANSI, I understand is the American 11 National Standards Institute (ANSI), and NIST is the 12 National Institute of Standards and Technology? 13 A. Indeed, yes. 14 THE CHAIRMAN: Just before we let you go, there is one 15 matter way back at the beginning of your evidence you 16 were dealing with the use of aluminium powder and black 17 powder and I may have got it wrong with an earlier 18 witness but is it right that if you use black powder 19 first you can't then use aluminium or it's more 20 difficult to use aluminium after black. 21 A. To be honest, as I indicated earlier we've only got 22 limited data on this. You can find fingerprints with 23 aluminium powder after black powder, yes, 24 unquestionably. So what we don't know is how 25 destructive one technique is with respect to the second page 162 1 technique but, yes, you could use black powder and then 2 aluminium. 3 THE CHAIRMAN: But the more usual way, if you are using 4 both, would be to use aluminium first and then black? 5 A. I'm not sure really. 6 THE CHAIRMAN: You're not sure of that? 7 A. No. People do all sorts of strange things out there, 8 you know. 9 THE CHAIRMAN: It's more complicated. Thank you very much 10 and thank you for your assistance. It was very good of 11 you, thank you. 12 (The witness withdrew) 13 MR MOYNIHAN: The next witness is Mr Sheppard. 14 GEOFFREY ARTHUR SHEPPARD (sworn) 15 THE CHAIRMAN: Your full name. 16 A. Geoffrey Arthur Sheppard. 17 THE CHAIRMAN: Take a seat please. 18 Examined by MR MOYNIHAN 19 Q. Your evidence begins, as so many others do, with an 20 apology. This is not your first visit to Glasgow to 21 give evidence in this matter? 22 A. These things can't be helped, I realise. 23 Q. I do apologise. 24 A. It's all right not a problem, really. 25 Q. You have provided the Inquiry with a statement? page 163 1 A. I did. 2 Q. Do you have that available? 3 A. I have a copy of it here, yes. 4 Q. You are quite happy with the accuracy of the statement 5 when you signed it? 6 A. Yes. 7 Q. Again, as with other witnesses, please feel free to 8 correct anything as we proceed. 9 A. Fine. 10 Q. I want to start by just picking up some points of detail 11 before we come to the main thrust of your evidence. If 12 I begin in a paragraph numbered 28, you mentioned in 13 paragraph 28 that in the instructions that had come in 14 relation to the exercise the National Training Centre in 15 Durham was being asked to undertake, there was a 16 reference to a Professor Margot? 17 A. Pierre Margot, yes. 18 Q. And the question there was to consider the relevance of 19 statistical analysis? 20 A. Yes. Whilst the man isn't known to me personally, he 21 has a number of theories that he has been quite happy to 22 propound regarding numeric systems. 23 Q. And we know that, so far as your work was concerned in 24 relation to Y7 and QI2, that you did not go to 25 Professor Margot for any assistance? page 164 1 A. No. 2 Q. Have you yourself had any experience of working with 3 statistical analysis as a complement to the work that 4 you have been doing on fingerprint interpretation? 5 A. No. 6 Q. Do you see yourself any assistance there might come from 7 statistical analysis if those who research it might be 8 able to say a particular combination of characteristics 9 tends to occur by chance in a certain proportion of the 10 population? 11 A. Reluctantly, I might. There were a number of reports 12 produced in the late '70s, perhaps early '80s, purely 13 concerned with the statistical viability, possibilities 14 of certain things recurring in fingerprints. 15 To my mind -- and it really is a personal view -- I 16 viewed them with some scepticism. I've never, whilst 17 being a party to the 16-point standard that we all lived 18 with for many, many years, I was never in favour of it 19 and never a full supporter of it. It was a necessary 20 evil, as far as I was concerned. 21 Q. If I could ask you to move the microphone maybe just a 22 little more towards you and speak into it. I didn't 23 hear, what were you not in favour of? 24 A. The numerical system that we had to produce in a court 25 of law. page 165 1 Q. Therefore, did you see any function for statistical 2 information to supplement a nonnumerical approach? 3 A. No. I mean after Mr Kent has just mentioned the Ne'urin 4 doctrine, for want of a better expression, there had 5 been over many, many years certain parties who have the 6 view that you can apply statistics to fingerprints, as 7 you can to most things. I've never really supported 8 those, certainly not 100 per cent on that. I've always 9 felt that the characteristics and features of a 10 fingerprint, be it on a piece of paper from a charge 11 office or found on a window sill in a burglary, there is 12 invariably sufficient information there to draw a 13 conclusion. 14 Q. Unless you are looking at a range of possible ten-prints 15 side-by-side, how do you know that the set of 16 characteristics that you consider to be similar between 17 the known and the unknown are, indeed, so similar as to 18 be unique unless you're comparing side-by-side a range 19 of possibilities? 20 A. I'm all for comparing side-by-side. I think it's an 21 ideal way rather than the overlay which has been 22 mentioned since I've been in court. 23 Q. Perhaps if I can look at it this way, in a slightly 24 different way: if I understand it correctly with an AFIS 25 system, an AFIS system, a computer system, will give you page 166 1 the possibility of a number of matches? 2 A. Yes. 3 Q. It can be programmed to give you any number, X number, 4 of the closest matches the computer would deem? 5 A. Yes. 6 Q. Let's say for sake of argument the computer gives you 7 ten possible matches. The fingerprint practitioner will 8 proceed by the ACE-V approach. You will look at the 9 crime scene mark first and analyse it thoroughly to 10 isolate the characteristics in that first. 11 A. Hmm hmm. 12 Q. He will then go to the AFIS possibilities and proceed 13 through them one by one? 14 A. Hmm. 15 Q. Let's say, just by chance, he finds that the first one 16 suggested by the AFIS computer is a very close match 17 and, in fact, the particular practitioner persuades 18 himself that, let's say, ten characteristics are present 19 in both and that combination is sufficiently unusual to 20 mean that there is an identical match between the crime 21 scene and the number 1 AFIS. That could happen? 22 A. Yes, provided that that individual carried on and 23 compared the other nine. 24 Q. This is what I was going to ask. The individual would 25 require to carry on and compare the other nine? page 167 1 A. That would be the process that I would recommend, yes. 2 Q. Because there's a possibility that the ten 3 characteristics observed in the unknown and the first 4 known might also by chance recur in the second known 5 thrown up by the AFIS system? 6 A. Only in the case of a wrong identification at the 7 process stage, where somebody has given an alias name 8 and the computer hasn't picked up that Joe Bloggs is 9 Fred Smith, then I could see, yes, there would be ten 10 but if it was a totally different person then I couldn't 11 see ten being feasible or possible. 12 Q. Why can't you see ten being feasible or possible? Have 13 you ever looked at a situation in which the AFIS system 14 has thrown up, let's say the top ten possibilities and 15 number 1 on the list would deem to be a match with ten 16 and then go on and consider the others in the list or do 17 you just pack up and say at number 1 that is an 18 identical match because of ten characteristics? 19 A. No, I would always compare the other nine. 20 Q. You would always compare the other nine? 21 A. Certainly. Identifications are often missed by people 22 giving aliases or, under the old system we had in 23 England and Wales, where you could get a local chart 24 that would never be recorded nationally. Then when 25 computerisation came in all fingerprint forms went on to page 168 1 a system. So you could have somebody from where I am at 2 the moment, Durham, who gave the name Fred Smith on a 3 charge of drunk and disorderly would never be recorded 4 nationally, whereas when computerisation came in that 5 sheet of fingerprints would be recorded on the system 6 and could well be linked up with Joe Bloggs who was 7 arrested for armed robbery in Hemel Hempstead or 8 anywhere. So, yes, carry on and check all ten that the 9 machine has offered you. 10 Q. But might it be the case that one is Joe Bloggs, number 11 1, and the next one is Alan Smith completely unrelated 12 and it just happens that by chance those two individuals 13 have a particular subset of characteristics in common 14 between them? 15 A. I can't imagine it happening to the number or value of 16 ten. Perhaps one, two, maybe three characteristics 17 would be similar but that's all. I can't imagine ten 18 characteristics being found in both those comparisons. 19 Q. Are you saying that that's not possible -- well, when 20 you say it's possible, you are not even assuming in your 21 numbers 1, 2, 3 the particular nature of the 22 characteristics, it's 1, 2, 3 any characteristics you 23 could see being replicated by chance but not more? 24 A. Not more, no. I've never seen it in 40 years. 25 Q. If we go on -- and we will come back to that a little page 169 1 later -- to another point of detail in relation to Y7 2 beginning at paragraph 10 of your statement, but more 3 particularly in paragraph 12, you mentioned that Y7 4 happened to be included in a book of data to be used in 5 a course that you were on that had Mr Ashbaugh and 6 Mr Wertheim. Is that correct? 7 A. No, Wertheim had nothing to do with it. 8 Q. No, no with -- 9 A. It was David Ashbaugh was invited over by the Forensic 10 Science Service to give a series of presentations to the 11 FSS. 12 Q. I am sorry, he worked with Alan Bayle. It is Mr Bayle. 13 A. Alan Bayle from the Metropolitan Police, yes. 14 Q. Now, if I understand it correctly, you were not 15 responsible personally for the introduction of Y7 into 16 that material? 17 A. No. No, certainly not. 18 Q. Do you know who was responsible? 19 A. I have no idea. All the photographs -- and there were 20 literally hundreds of scene of crime marks and control 21 samples, fingers from fingerprint forms -- were provided 22 by David Ashbaugh. We merely put one that would be a 23 trial or a test to an expert. We paired those up so 24 that during the course of the four one-week courses that 25 we ran, experts would get a complete variation of the page 170 1 type of scene of crime mark that you are likely to 2 find -- wonderful pictures and some that left an awful 3 lot to be desired and an awful lot of hard work to 4 compare. 5 Q. In paragraph 14, again on this same theme, one of the 6 courses you mentioned Alan Dunbar and a lady from SCRO 7 raising the question of Y7 being used. Paragraph 14 of 8 your statement on page 3. 9 A. Yes, they came to one of the courses that we ran in 10 Durham. We ran two at the Metropolitan Police Training 11 College at Hendon and we ran two at the University of 12 Durham attended by roughly 20/21 experts from various 13 forces and it was only at the end of that day that I 14 became aware that -- I can't remember whether it was 15 Alan or the lady member of SCRO who was in a rather 16 agitated state, I think is a better way to describe it, 17 that a certain mark had been presented (obviously Y7) 18 that shouldn't have been. I don't think anybody else in 19 the room, the other 19/20 experts, including me, was 20 even aware that it was Y7 at that time. There were no 21 indicators or identification markings on any of the 22 photographs we used, either scene of crime or 23 fingerprints. 24 Q. Was that expression of concern an expression of concern 25 to you personally or was it to one of your colleagues? page 171 1 A. No, it was purely and simply I'd organised the two 2 one-week courses in Durham and purely in my role as host 3 and general go-between, I suppose really, I became aware 4 of some consternation that was being expressed. But I 5 hadn't even seen Y7 at that stage when those courses 6 were run. I didn't even know of it's existence. 7 Q. If I move on to the third point of detail -- and I am 8 sorry, these are going backwards through your 9 statement -- at paragraph number 7 you mention that you 10 had a conversation or a telephone call perhaps with 11 Mr McKie about a journalist from the BBC, Shelley Jofre, 12 having tried to make contact with you? 13 A. Yes. 14 Q. You say this was after your reports. Was this well 15 after you concluded your work for Mr Gilchrist? 16 A. Yes, certainly. Shelley Jofre basically made my life a 17 misery. I phone calls in the evening, on a Sunday -- 18 that was nothing unusual -- to go on programme that she 19 was presenting or putting together or editing -- I don't 20 know what -- and at the end I became rather unpleasant 21 to Miss or Mrs Jofre and said I wasn't prepared to take 22 part in any television programme whatever on any given 23 subject. 24 It was after that that Mr McKie phoned me at home 25 and almost apologised really and fully understood my page 172 1 viewpoint and my stand that I was no longer part and 2 parcel of the Fingerprint Service, I'd retired, and had 3 no wish to be pestered or badgered with what was going 4 on. Now, whether he subsequently spoke to Shelley Jofre 5 I really have no idea. But it was a very pleasant 6 conversation and he fully took or understood my point. 7 Q. That brought the pestering of you to an end, did it? 8 A. Yes, thankfully. 9 Q. I take it from what you have said about the fact that 10 you were by then retired that these conversations had no 11 bearing on your opinion that you already expressed in 12 relation to the marks? 13 A. No, none whatsoever, no. 14 Q. The next topic I want to turn to -- and please forgive 15 me, I think you and I have had a conversation about this 16 so it is at least not a surprise to you, but you happen 17 to be the first English fingerprint practitioner who I 18 have had passed in front of my eyes so if I can ask some 19 questions. 20 A. We're not a different race. We're fairly normal, I 21 assure you. 22 Q. Well, we won't throw that open for debate. 23 A. No, don't. 24 THE CHAIRMAN: A dangerous subject. 25 MR MOYNIHAN: What I wanted to ask you about was the page 173 1 perception that there was at one stage that there might 2 be a difference between Scotland and England in relation 3 to the application of the 16-point standard. So this 4 would be 1997, at latest 1998, the 16-point standard is 5 being applied. 6 A. Yes. 7 Q. The suggestion was there might -- might -- be a more 8 stringent application of the 16-point standard in a very 9 specific way, that a lake might be perceived as the 10 conjunction of two bifurcations. Some practitioners 11 might see it as two points towards the total of 16, 12 others see it as just one, a lake. 13 A. Yes. 14 Q. And the same process of reasoning: an island or short 15 ridge might by some practitioners be seen as one in the 16 total of 16 and by others as 2. 17 A. Yes. 18 Q. First of all, can you explain how at least in England 19 each of these features was viewed? 20 A. Most of the people who qualified as experts had to go 21 through an advanced course at New Scotland Yard -- there 22 were one or two forces that didn't comply with that 23 situation -- and we were always taught, everybody was 24 taught, in New Scotland Yard that you would use only one 25 characteristic on a lake or an island (whichever one, page 174 1 the top, bottom, left, right-hand side) and when I 2 asked -- I don't know if it was me -- one of the other 3 candidates on the course in 1972 when I went down there 4 asked why? If you've got the two visible, why not show 5 two? The reason given was rather flippant but it was: 6 let the jury see some others, extra ones. Let the jury 7 find some extra characteristics that you haven't marked. 8 But, no, it was decided and it became policy that 9 only one would be shown, unless you are desperate to 10 find 16 characteristics in coincident sequence; then you 11 were perfectly entitled to use both ends of a 12 independent ridge or a lake. 13 Q. My arithmetic has not yet been found wanting but I 14 always confess it may yet be. If I start at the number 15 14 and the number 14 has, in the English style, been 16 counted with a lake as one and an island as one and you, 17 as a fingerprint expert, are at 14 -- 18 A. Yes. 19 Q. -- you are having to meet the standard of 16 -- 20 A. Right. 21 Q. -- then what you could do is count the lake as two, not 22 one, and you've got to 15 and you could count the island 23 as two, not one, and get to 16? 24 A. Absolutely. 25 Q. That enables me to look just a little bit more closely page 175 1 at the standard of 16. We have had some evidence that 2 it was not a standard that fingerprint practitioners 3 were very comfortable with or happy about? 4 A. It was forced on us historically. The decision was made 5 I think in was it 1912/1916 -- I can't remember now -- 6 and it was an arbitrary decision then. The first murder 7 case was presented by New Scotland Yard at the Old 8 Bailey regarding the Stratton brothers and all that was 9 available were I think it was 12 characteristics. That 10 was all there was visible and that was presented and the 11 conviction ensued. Sorry, it was earlier than that. 12 But then I think in I think 1912/1913 -- whenever it 13 might be -- a certain French individual, whose own 14 recommended system had been overlooked and discarded, 15 came up with a blatant forgery. He had doctored a 16 presentation of an alleged scene of crime mark and a 17 fingerprint form mark and indicated 16 -- no, he 18 indicated 12. It certainly wasn't an identification. 19 Then the decision was made, "Well, 10/12 might be a 20 little bit iffy, let's move it up to 16" and that really 21 is how that 16-point standard came into being. 22 Q. Again, in 1997/1998/1999, the period that we are 23 primarily involved in, you were teaching in the National 24 Training Centre in Durham? 25 A. Yes. page 176 1 Q. Did you have some contact with Scottish practitioners as 2 well as English practitioners? 3 A. Limited -- very limited. At that time we only taught 4 Scottish students for the foundation course and the 5 intermediate course. 6 Q. But as far as you were aware, was there in fact a 7 difference in practice between Scotland and England in 8 relation to the application of the 16-point standard? 9 A. Not in relation to the 16-point standard but there are 10 certain other numerical values attached at various 11 bureaux in that some bureaux were content or were quite 12 satisfied with 10 characteristics to prove 13 identification, although that couldn't go to court. 14 Other bureaux had the standard of 8 as being 15 satisfactory to prove identification. 16 But then you came to an elimination situation 17 whereby, certainly in England and Wales, it was 8 or 10 18 whichever your bureau had for an identification, the 19 same had to be applied for an elimination comparison; 20 whereas I know in SCRO that number was 6. 21 Q. If I can just run through this and we will progress 22 down, 16 was, we understand, the standard for court 23 purposes on both sides of the border? 24 A. Yes. 25 Q. However, it follows from what you have been saying about page 177 1 it being just an arbitrary standard and the fact that 2 you could add in a few details here and there to get up 3 to 16, that you as a fingerprint practitioner might be 4 entirely confident of an identification between a known 5 and an unknown mark at fewer than 16? 6 A. Yes. 7 Q. So you would form an opinion of identification at a 8 lesser number? 9 A. Can I just say in my opinion you form an identification 10 or an evaluation of an identification and only at that 11 stage do you count the number of characteristics in 12 coincident sequence. The numerical value is at the end 13 of the process. 14 Q. Again, please correct me if I am wrong: when you are 15 looking then at numbers lower than 16 you have mentioned 16 the number of 8 and the number of 10. 17 A. Yes. 18 Q. What do you understand those numbers to correlate to? 19 Is that the threshold at which a practitioner might 20 himself be personally positive of an identification or 21 is it some other feature? 22 A. I think it's fairly safe to say that most practitioners, 23 if not all, will only have found three or four 24 characteristics in coincident sequence in subsequently 25 non-identical scene of crime fingerprints. That number page 178 1 was doubled to 8 to be safe -- or allegedly safe, in 2 inverted commas -- and that was the standard for many, 3 many years. 8 was the minimum number of characteristics 4 in coincident sequence to form an identification. 5 Subsequently, one or two bureaux, led by New 6 Scotland Yard moved that number up to 10. Now, I really 7 don't know why but I know at the time that it came into 8 being, the Metropolitan Police had some or experience of 9 one or two erroneous identifications. Now, whether that 10 was a safety feature, I really don't know. 11 Q. You have indicated that your understanding was that SCRO 12 had a third level number lower still of 6 13 characteristics? 14 A. For elimination purposes only. 15 Q. In particular, when you use "elimination", what did you 16 understand that to mean? 17 A. I really don't know. Purely and simply the workings or 18 the practices within SCRO. I mean, I came from 19 students. I have no personal knowledge of attending 20 SCRO and seeing it in being, but it came from students. 21 Q. I will come back to that later in a slightly different 22 context. 23 One other expression that's been mentioned is an 24 expression called "teasing out". 25 A. Mmm. page 179 1 Q. Can you explain what "teasing out" actually means? 2 First of all, it's not something you approve of? 3 A. No, no. Characteristics or features are there or they 4 are not there. It really is as simple as that. 5 It's a practice that goes way, way back in time (and 6 it's a philosophy that is extremely dangerous) where if 7 you can find 13 or 14 characteristics, then you can find 8 your two by teasing things out and it was invariably by 9 going into can I describe as the rather darker, murkier 10 areas of a scene of crime mark. Having found 13/14, you 11 know it's identical allegedly, you could display two 12 others that might not be visible to a jury. But I have 13 to say that it was a police practice that really 14 shouldn't have happened. 15 Q. So teasing out is not -- I appreciate my example earlier 16 on was very crude when I said 14 and you double count a 17 lake and an island to get 16. That's not teasing out? 18 A. No, no, no. Definitely not, no. Teasing out is -- I'm 19 not saying trying to bamboozle the court, but it was a 20 practice that, having found X number of characteristics, 21 you as the individual found or satisfied that an 22 identification was there and complete, then you could 23 use two other features that might not be very, very 24 visible or clear in any way, shape or form to make up 25 the 16 and go to court. page 180 1 But this was in the days before you had the checking 2 system that is now paramount where at one stage I, as 3 the expert, didn't need any corroboration from anybody 4 else. I didn't have to have a second or a third check. 5 So it was, you know, entirely my own work or my own 6 imagination that would provide those 16. 7 Q. The final point on this list in relation to my journey 8 to England is a case I asked about, a case in England in 9 the Court of Appeal in 1999, I believe, a case called 10 Buckley. 11 A. Buckley, yes. 12 Q. If I as an uninitiated Scot looking at an 13 English textbook I might believe Buckley is the last 14 word in England and therefore the guidance on the number 15 of points to be used, would I be wrong in connection 16 with that? 17 A. You would be wrong. When that decision or ruling came 18 out, I think it frightened most of us to death. We were 19 just about to move to a non-numeric system. Then we had 20 a court demanding that no expert would go and present 21 evidence without at least 8 characteristics. So we 22 thought, well, why are we moving to a non-numerical 23 system when the courts are implying or really ensuring 24 that we have to provide and maintain a numerical system. 25 Q. If I just stop you. Again, we will let people into what page 181 1 Buckley said. If I understand it correctly, what 2 Buckley said as obiter guidance was that the standard 3 need not be 16 but in normal circumstances the court 4 would insist on at least 8? 5 A. Would not expect to be presented with evidence with less 6 than eight characteristics, yes. 7 Q. So in other words it was a different and lower but still 8 numeric standard? 9 A. Yes. I mean, there have been occasions. There was a 10 ruling within Fingerprint Bureau, certainly in England 11 and Wales, that if the case was of dire consequence 12 (whatever dire consequence might mean), then evidence 13 could be presented at court on less than 16. But that 14 was entirely up to the court whether they accepted it or 15 not. When you're trying to find out what "dire 16 circumstance" was, nobody could tell you, whether we're 17 talking about, you know, mass murder or my grandmother's 18 bicycle being stolen -- I mean, that would be fairly 19 dire to her and to me -- but no-one can answer that at 20 all. 21 I honestly thought, "Oh, here we go again, playing 22 the numbers game" which is what I've always referred to 23 it as. I sought guidance from CPS headquarters in 24 London as to what the ruling, the Buckley ruling, what 25 impact that would have and I was told "forget it, it's page 182 1 irrelevant, it doesn't really matter" and I promptly did 2 so. 3 Q. So we would understand that in practice Buckley has not 4 been followed. 5 A. No. 6 Q. Thank you. If I move then to the next topic, I think 7 the final topic for this afternoon, and it is more to do 8 with methodology of working. 9 You had mentioned in paragraph 49 of your 10 statement -- if I find paragraph 49. You mentioned that 11 before the McKie case, the Nottingham police had made a 12 mis-identification. A report was produced and, if I 13 understand it correctly, part of the problem was the 14 failure to work independently and the comparator was 15 used. 16 A. Yes. 17 Q. This is what I want to ask you about then. So far as 18 the Nottingham case is concerned, was it that a 19 comparator machine was used at all or that it was the 20 only way in which the mark, the known and the unknown, 21 had been compared? Do you know? 22 A. No, no, I don't know. All I know is the comparator when 23 being used -- the comparator had so many characteristics 24 marked up by individual A and then individual B was 25 asked, "Come and have a look at this and see if you can page 183 1 find any more. I think it's identical" and character B 2 came and added one or two more and then the head of 3 bureau came and finally added a few more (because he was 4 so superior and far better than anybody else and could 5 see things that others couldn't obviously) and so they 6 made the identification and the man was sent to prison. 7 Subsequently -- I don't know -- five or seven years 8 later a man walked into a police station in Nottingham 9 and admitted to the crime. 10 So it can happen if procedures aren't correctly 11 followed that the influence of leaving characteristics 12 marked on a comparator certainly influences any 13 subsequent verification or comparison. 14 Q. Clearly not suggesting anything nefarious had taken 15 place but there could at least be a very subtle 16 influence by successive officers if they are invited to 17 view and to confirm markings already made by 18 predecessors on a comparator screen? 19 A. Yes. 20 Q. You are indicating from the Nottingham case that that 21 was known before the time of the McKie case to be a 22 source of error? 23 A. Oh, yes. I mean, Scotland Yard were invited in once 24 this error had been found out to review everything that 25 Nottingham Fingerprint Bureau and Scene of Crime Unit page 184 1 did, how they worked and they came up with something 2 like 120/123 recommendations, one of which was of course 3 that you never look and compare something that somebody 4 has left on a comparator and has already attempted to 5 identify. 6 Q. If we could look at what we understand some of the 7 practices to have been within SCRO in relation to the 8 comparator machine. First of all, we understand that 9 for an identification, and we're talking about to 10 16 points or indeed will apply it to even the lesser 11 standard between 8 and 10, for an identification to be 12 made a total of four officers must be involved not, as 13 might have been the practice in England, three. Okay? 14 A. Mmm. Yes, fine. 15 Q. In fact what would happen in an ideal situation is as 16 you described. Each of the successive officers would 17 view the mark and the known print separately, first of 18 all, with the mark under glass, then view both under 19 glass to form an opinion and only thereafter view it on 20 the comparator machine if they required to either get 21 more detail or count the points up to 16. 22 That would be the correct practice? 23 A. Yes. 24 Q. What we understand is that in the Scottish Criminal 25 Record Office in 1997 there was a practice on occasion page 185 1 whereby marks would pass from one officer to the next 2 simply by being left on the comparator machine. So the 3 known mark and the unknown mark was simply mounted on 4 the comparator screen and displayed, officer number 1 5 would finish and he would go to his colleague and say, 6 "Would you please give me an opinion on ..." and then 7 take him straight to the comparator machine. 8 First of all, just looking at it done in that way, 9 was that proper practice? 10 A. No. It was certainly not the practice we insisted on at 11 the National Training Centre. 12 Q. If I add to that that there may be markings on the 13 comparator screen from the first officer's observations 14 that are there to be studied by the second officer, is 15 that good or bad practice? 16 A. That's fine if you're seeking clarity on the decision 17 that he's made, but as long as that second officer has 18 no further part in the verification process and then, in 19 England and Wales, two other experts would view it, 20 totally independently, or in Scotland three other 21 experts would look at it totally independently. 22 Q. But would it be proper practice if the second officer 23 was someone who has being asked as part of the formal 24 verification process? 25 A. No. page 186 1 Q. No? 2 A. No. 3 Q. The final element of this, would it be proper practice 4 that a number of verifiers -- a number of verifiers -- 5 might study a mark only on the comparator machine and 6 not view the mark, the unknown and the known marks, 7 under glass? 8 A. It is possible -- not recommended but it is certainly 9 possible. 10 Q. Why is it not recommended? 11 A. The comparator may vary, only demonstrate or show you 12 certain aspects of that fingerprint. It won't show you 13 the entire scene that the Scene of Crime Officer has 14 captured either by lifting it with aluminium powder or 15 by photographing it in situ. 16 The ideal way is to look at the photograph or the 17 lift, whichever it might be, and look at all the detail 18 that's presented there. There might be other images 19 that indicate a finger -- you know, rather than what you 20 are going to compare that there's a finger on the left. 21 It might only be a smudge, no detail within that but 22 it's an indicator of what finger it is that you are 23 going to compare, whether a right mid or whatever it 24 might be. 25 Q. So if both are mounted simply on a comparator machine, page 187 1 are you indicating the comparator machine will highlight 2 a section of the known and the unknown mark? 3 A. Yes, just the one finger and there might be others 4 available in the photograph. 5 Q. But in relation to the one finger, let us say here we're 6 talking about a left thumb, would it highlight only a 7 section of the left thumb or could it? 8 A. It should demonstrate the whole of that finger or thumb, 9 whatever it might be. 10 Q. But if I give then a description that within the SCRO 11 though ACE-V is said to be adhered to, at the 12 verification stage a third and fourth checker in 13 particular might act as I've just described -- in other 14 words, first see the print on a comparator machine, be 15 introduced to it by a colleague who has already made an 16 identification who is calling upon them to verify, ie 17 confirm the identification, tell them that as to the way 18 it's mounted that they are going to be asked to confirm 19 between not only a known and an unknown but between the 20 known crime scene mark and the left thumb of the 21 unknown, there may also be indications there of the 22 precise characteristics observed, 16 points highlighted 23 on the screen. 24 If that was the practice that was occurring, what is 25 your reaction to that. page 188 1 A. I think it's bad practice -- I really do. 2 Q. What would the risk be of following that bad practice? 3 A. Well, one is un-professionalism in that you're accepting 4 the word of another individual without starting from the 5 beginning again. You're coming in halfway through a 6 storyline and the only way to verify anything is to go 7 back to the beginning and read the whole story. It's 8 like reading a novel. You come in towards the end when 9 you already know who the murderer is. You need to know 10 the facts before it. 11 So I think it is very bad practice. It is something 12 that you would never, ever recommend or support at the 13 National Training Centre. 14 MR MOYNIHAN: Sir, some points arise but I don't think they 15 are going to be very brief. 16 THE CHAIRMAN: We have gone probably as far as we should 17 today. I am going to have to ask you to come back in 18 the morning and that will be at 10.15 -- 10.00. We keep 19 changing our minds. I should have said 10.00. 20 (4.30 pm) 21 (Adjourned until 10.00 am the following morning) 22 23 24 25