page   1
 1                                       Wednesday, 8th July 2009
 2   (10.00 am)
 3                     GEOFFREY ARTHUR SHEPPARD
 4               Examined by MR MOYNIHAN (continued)
 5   Q.  Good morning, Mr Sheppard?
 6   A.  Good morning.
 7   Q.  If you experience difficulty hearing me again this
 8       morning, please just look blankly at me and don't answer
 9       and then it will --
10   A.  If you can keep it at that level, that will be fine.
11       Thank you.
12   Q.  What I want to do is to continue the conversation we had
13       yesterday afternoon and move on now to the question of
14       verification and, in particular, if we simply use the
15       ACE-V acronym and looking at the V aspect of that and
16       what was occurring in practice in 1997 and what the
17       expectations were.
18           If I take just for simplicity as an example the
19       fingerprint QI2 (that's the fingerprint of the deceased
20       that was on the tin) which was one of the two prints
21       that came to your and your colleagues for an opinion --
22   A.  Yes.
23   Q.  -- we know that to have been found by the police and
24       given to the Fingerprint Bureau to check.  We know that
25       the Fingerprint Bureau had a list of individuals,
page   2
 1       neighbours and relatives and the likes who were possible
 2       eliminations and they also had a list of possible
 3       suspects.
 4           Now, as a matter of ordinary practice in 1997,
 5       assuming let's just say by chance the Fingerprint Bureau
 6       at the very early stage in checking found a match for
 7       QI2 in going through their eliminations and found a
 8       match to a degree they felt was a unique identification,
 9       would you expect the verification process to stop at
10       that stage or would you expect the fingerprint
11       practitioners nonetheless to carry on to check all the
12       fingerprints of the individuals who were possible
13       eliminations or suspects?
14   A.  If they were able to confirm that identification, then I
15       doubt any bureau would carry on regardless -- time,
16       money, all those factors come into play.  They would
17       have to be absolutely sure that the identification had
18       been made on QI2 with whoever to cease at that moment in
19       time.
20   Q.  When you say if they were able to confirm they might
21       stop.  What would they be required to do in order to
22       confirm?
23   A.  The complete verification programme.
24   Q.  What is required then in a complete verification
25       process?
page   3
 1   A.  That an individual has gone through the ACE part (the
 2       Comparison, the Analysis, the Evaluation) have that
 3       corroborated if that was required or chatted or
 4       discussed with another colleague and then it goes to a
 5       completely separate autonomous area where the
 6       verification process would start, where an expert will
 7       view from the beginning, do an ACE aspect himself,
 8       (analyse, compare, evaluate) and then verify or not as
 9       the case may be that there is an identification.  If
10       they agree that it's an identification then it goes on
11       to a third autonomous party.
12   Q.  The reason I am taking QI2 as an example helps really to
13       this extent:  I will just refresh your memory.  QI2 was
14       a tin, biscuit tin.
15   A.  Yes.
16   Q.  It was found in the home of David Asbury who by the time
17       of this examination in the bureau is the suspect.
18   A.  Right.
19   Q.  He is actually in custody.  So he is the suspect.  The
20       number 1 person on the elimination sheets of friends,
21       neighbours and relatives was the deceased herself,
22       Marion Ross.
23           So the bureau, if I understand it correctly, checked
24       QI2 against the suspect in whose house it was actually
25       found (so in a sense he's an elimination at that stage),
page   4
 1       they found, as part of a cluster, a fingerprint that
 2       they attributed to him and then they also went to the
 3       next logical person, number 1 in the normal elimination
 4       list (Marion Ross) and they found a fingerprint on the
 5       tin that they attributed to her.  Therefore, the first
 6       two people for the logical reason I've explained the
 7       first two people were matched against the prints on QI2.
 8   A.  Right.
 9   Q.  If I understand it correctly, there is no evidence or
10       record of any other person having been checked against
11       QI2.  So that's my reason for asking you what in an
12       ordinary independent verification process you might
13       expect to happen.
14           First of all, if I take it in this way, the first
15       person who carries out the identification of QI2 who
16       works, as I have just said, who has identified it to his
17       satisfaction as exclusively a fingerprint of David
18       Asbury and a fingerprint of Marion Ross, do I understand
19       you to say that he might stop at that stage and not
20       carry out any other checks against the elimination forms
21       that he has?
22   A.  Mm-hm.
23   Q.  If he then passes the information to a second examiner
24       (again, assuming that second examiner to be entirely
25       autonomous, as you describe that term), would it be
page   5
 1       consistent with practice in 1997 that the second
 2       examiner might also proceed through the same logical
 3       order to check David Asbury perhaps first and Marion
 4       Ross second and stop at that point?
 5   A.  I would not expect a verifier to stop at that stage.
 6   Q.  Why would you not expect a verifier to stop at that
 7       stage?
 8   A.  When you have started a process -- and what you have
 9       done is a verification process -- then you must complete
10       it.  Whether you believe you are going to be fortunate
11       and find something else is by-the-by but you must
12       complete that process once commenced.
13   Q.  What then would the second examiner require to do in
14       order to complete the process?  Assume, just for sake of
15       argument, that the second examiner has looked at QI2
16       against David Asbury and Marion Ross and has satisfied
17       himself -- let's take it as high as this -- satisfied
18       himself to the 16-point standard that these marks are to
19       be attributable to these two individuals, what should
20       the second examiner thereafter do?
21   A.  I would expect them, quite honestly, to go through that
22       whole process and complete however many elimination
23       fingerprint forms or suspect forms that you have there.
24       I know of a situation and I was part and parcel of it at
25       one time, where an individual, a trainee under my
page   6
 1       leadership, thought he had an identification and I
 2       looked at it very briefly and said, "Well, carry on now
 3       and see if you can find any more characteristics", and
 4       he couldn't.
 5           We then move on to the other elimination forms that
 6       were there and I think it was six, seven or eight,
 7       something in that order, he suddenly decided, "Oh, this
 8       is a better comparison.  I can find more characteristics
 9       within this", and then the identification was made on
10       number six, seven or eight, whichever it was.
11   Q.  So if you have a list and I can't remember now of how
12       many eliminations, let's say in excess of 50 individuals
13       who are on the list of eliminations friends, relatives
14       and the likes and then over and above that the suspects,
15       you would expect the second examiner exhaustively to
16       check all of the individuals on the elimination form and
17       the suspect form against QI2?
18   A.  I would expect them to.  One of the inherent dangers of
19       falling short on a process is the final analysis when
20       you appear at court with the identification and
21       invariably the defence will ask, "How many other
22       fingerprint forms did you check?  Did you check any of
23       the others?  Might they have matched or married up in
24       any particular way?"  To be found wanting in that
25       respect I think is detrimental to the individual and to
page   7
 1       the Service.
 2           So, yes, it might feel as though it's a waste of
 3       time but it's proving and satisfying a complete process
 4       has been committed to.
 5   Q.  If I carry on, as I told you, the Scottish practice at
 6       that time was to use a total of four officers to confirm
 7       an identification to the 16-point standard before it
 8       could leave the Bureau.
 9   A.  Can I ask four officers or four experts --
10   Q.  Four experts.  The practice in England was three?
11   A.  Yes.
12   Q.  Let us just look at the English practice because at
13       least we are common in relation to the third person.  So
14       we have now had the first examiner has checked QI2 as
15       was described, the second examiner who is autonomous has
16       required to check all of the eliminations, however many
17       there may be.  What would you expect of the third
18       examiner now called in, whether in Scotland or in
19       England, what degree of checking would he require to
20       undertake?
21   A.  I would expect the same of three as I had of two, that
22       they would complete the whole verification process.
23       Whether it happens in practice is something totally
24       different and a completely different argument.  But I
25       would expect them to complete the whole process.
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 1   Q.  This is very helpful.  The difference between what might
 2       be expected (for example, what would be trained and
 3       taught in the National Training Centre) and what would
 4       occur in practice, are you aware of a difference between
 5       what was taught and what was actually practised in
 6       bureaux throughout the United Kingdom?
 7   A.  Not aware of it but I'm certainly aware that it might
 8       well happen, definitely -- perhaps not in the larger
 9       bureaux where manpower or labour is fairly abundant but
10       in some of the smaller bureaux in England and Wales
11       where you might have only three or four experts on a
12       very good day then, yes, I can see shortcuts being
13       attempted.
14   Q.  That is what you would regard as a shortcut then?
15   A.  I personally would, yes, and the practice we taught in
16       Durham that would be a shortcut and we certainly
17       wouldn't recommend it.
18   Q.  If I move on then to the next stage of the question of
19       verification, now in a broader sense of that term, and
20       ask you about the mindset of an expert examining a
21       fingerprint.
22           We talked yesterday of the different numbers that
23       might be used for characteristics 6, 8, 10, 16.  Even as
24       I have been explaining it to you this morning, we have a
25       situation in which some individuals are there for
page   9
 1       elimination, there was the friends, relatives,
 2       individuals who are thought to have had a legitimate and
 3       innocent reason for being in contact with the object, as
 4       opposed to a suspect, and some of the terminology
 5       suggests that Fingerprint Officers can occasionally be
 6       looking at something for the purposes of elimination and
 7       on other occasions looking at something for the purposes
 8       of identification.
 9           Should the mindset of the officer be consistent
10       whichever category he's dealing with or can he have a
11       different mindset for the different categories?
12   A.  I think officers do have a different mindset.  I don't
13       condone that at all.  Irrespective of how that
14       fingerprint form has arrived on your desk, whether
15       elimination, a suspect or a charge, whatever it might
16       be, it should be addressed in exactly the same way with
17       the same degree of professionalism and integrity.
18           Today's elimination fingerprint following subsequent
19       inquiries by the CID could be next week's prime suspect
20       and if you have made a rather hasty unnecessary decision
21       as an elimination, so it isn't really that important and
22       that's one fingerprint got rid of that we don't have to
23       worry about, suddenly in two weeks' time you are going
24       to have an awful lot of egg on your face and a great
25       deal of embarrassment.
page  10
 1   Q.  The next stage, again looking at verification that I
 2       wanted to ask you about was, again it is part of numbers
 3       game, that the 16-point standard is the court standard
 4       and you have expressed your view about that.
 5   A.  Yes.
 6   Q.  If I tell you that in relation to Y7, shifting away from
 7       QI2 and coming to Y7, the first officer, the first
 8       expert who examined Y7 had, we understand, decided that
 9       whether it was an identification or an elimination did
10       not matter.  He wanted this checked to the 16-point
11       standard, compared to the 16-point standard.  That's
12       Mr Macpherson, a senior man.  He has found 16 points and
13       is, therefore, quite content that Y7 is indeed the
14       fingerprint of Shirley McKie.  He then goes to the
15       second individual for verification and the second
16       individual is Mr Geddes, a more junior expert but
17       nontheless a fully qualified expert.  Mr Geddes finds 10
18       characteristics in Y7 consistent with Shirley McKie.  He
19       is himself entirely satisfied that it is Shirley McKie
20       to the proper professional standard, he is 100 per cent
21       satisfied, but he has not found the 16 points that would
22       be required by the court standard.
23           Now, at that point could there be a discussion in a
24       proper system of verification, could there be a
25       discussion between the two officers to see whether, in
page  11
 1       fact, they could identify and reach common agreement on
 2       16 points?
 3   A.  Yes, there would be nothing wrong with that at that
 4       stage, definitely.
 5   Q.  Is that because the officer, the second officer,
 6       Mr Geddes, on the limited amount I have told you, has
 7       arrived already at his own independent view
 8       uninfluenced?
 9   A.  Yes.
10   Q.  There's no difficulty thereafter in having a discussion
11       between colleagues?
12   A.  No, and then it would continue on in the verification
13       process.
14   Q.  If I add into this that Mr Macpherson demonstrates -- I
15       will make it very simple, let's assume they are agreed
16       about 10 points.  That may be an oversimplification but
17       let us assume they are agreed about 10 and Mr Macpherson
18       demonstrates the missing 6 to Mr Geddes and Mr Geddes
19       remains unpersuaded.  He still thinks, "I can see only
20       10 characteristics that I regard in common between the
21       2".
22           In a proper system of independent verification, what
23       should happen at that point if the two officers are of
24       the same view as to identity but of a different view
25       about whether the 16-point standard can be met?
page  12
 1   A.  It would go to either a person within a bureau who's
 2       designated as a final arbiter or part of the arbitration
 3       process or the head of the bureau who would listen to
 4       the arguments, see their demonstrations and then make a
 5       decision as to whether it could go forward as an
 6       identification or not.
 7           The mere fact that you've got two experts, granted
 8       of various rates of progress or experience, the fact
 9       that one had found six more than the other one, that
10       would leave me with some concerns -- and wasn't able to
11       demonstrate to Geddes to his satisfaction that those six
12       did actually appear.
13   Q.  If I put to you just for comment, I understand from the
14       Scottish Criminal Record Office officers that, if I may
15       use this term, a Quality Assurance Officer, somebody of
16       that sort, was brought in but only where the two
17       officers were in disagreement about the possibility of
18       making an identification; in other words, one said it is
19       Shirley McKie and the other said, no, it's not.  They
20       would only go to a Quality Assurance Officer in that
21       context.
22           Is that something --
23   A.  Oh?
24   Q.  Well, you are expressing surprise.
25   A.  Certainly so far as England and Wales is concerned,
page  13
 1       perhaps not in 1997 but subsequent to adopting
 2       non-numerical process then any disagreement or challenge
 3       to an identification, someone has found 16, one can only
 4       find 10 and the 16 can't demonstrate to the second
 5       person that those 6 exist then, yes, it would go to
 6       a quality assurance.  Every bureau in England and Wales
 7       has a Quality Assurance Officer or somebody who is
 8       designated in that role.
 9   Q.  In 1997, assuming that, as is the case, Scottish
10       Criminal Record Office had a Quality Assurance Officer,
11       can you comment on practice in 1997, whether in the
12       light of practice then you would have expected even the
13       difference between Mr Macpherson and Mr Geddes as I have
14       described, one is at 10, the other at 16, but they are
15       both of the same view as to identity, would you have
16       expected in practice at that time for that difference of
17       view to have been communicated to a senior manager in a
18       quality assurance role?
19   A.  Yes, in that the expert who could only find 10 were they
20       wanting in some way?  Did they need extra training or
21       something of that nature.  It would highlight that
22       aspect.  But the fact that there was, you know,
23       disagreement, not about identification or the alleged
24       identification but the numerical features found then,
25       yes, I would expect it to go to a senior manager.
page  14
 1   Q.  Above and beyond the question of the one who is at the
 2       lower number perhaps requiring perhaps extra training it
 3       might even be, is it possible that by chance it is the
 4       senior one who has found more, he might even be able to
 5       not to persuade management?
 6   A.  Quite possibly, yes -- quite possibly.
 7   Q.  If I put to you what actually, as I understand it,
 8       occurred just for your comment Mr Geddes having had a
 9       demonstration and having adhered to his view he could
10       only see 10 but nonetheless being of the same opinion as
11       to identification, practice at the time in the Scottish
12       Criminal Record Office allowed Mr Macpherson not to take
13       it to quality assurance but, in effect, if I use a
14       colloquial expression, to bypass Mr Geddes and to take
15       the print to three other officers to get this full
16       complement of four and, as we understand it, the next
17       three consulted officers each agreed with the 16 points.
18       So Mr Geddes found by a combination of 4 out of 5 that
19       he had the required sort of agreement of four officers
20       to a 16-point standard and the matter, as I understand
21       it, was not reported to quality assurance.
22           Again, you are looking at me with a face of
23       puzzlement; are you puzzled by that?
24   A.  Not puzzlement as such.  I just simply deprecate that
25       type of action.
page  15
 1           It warrants or suggests had you gone on to do 20
 2       experts with this particular mark, what sort of ratio
 3       you would find then, would 9 or 10 only find 10 or would
 4       there be 3 not agree it's an identification?  Any type
 5       of dispute or disagreement or inability to convince a
 6       fellow expert of your decision, your opinions, then it
 7       has to go to senior management immediately and you can't
 8       engage in a sort of round robin exercise hoping that,
 9       you know, at the end of the day democracy will prevail
10       and you'll have the satisfaction or safety of greater
11       number.  That should never happen.
12   Q.  Again, I will take you back to the English practice and
13       assuming it's been done in the manner you described, two
14       officers, if I can use this, instead of saying they are
15       in disagreement I will use a lesser term.  There's a
16       difference of view --
17   A.  Difference of opinion.
18   Q.  -- in agreement as to the identification but there is a
19       difference of view as to the number.
20   A.  Right.
21   Q.  That is then reported to senior management and, for sake
22       of argument, senior management happens to decide that
23       the individual with the greater number, the one seeing
24       16, is judged to be correct.
25   A.  Right.
page  16
 1   Q.  It's just an example.
 2   A.  Yes.
 3   Q.  So, therefore, senior management agrees with the larger
 4       number.  Would you expect there to be a record kept of
 5       the fact that one officer had indeed reported finding
 6       only 10 characteristics?
 7   A.  Yes, definitely.  The whole process has to be audited or
 8       auditable from beginning to end.
 9   Q.  One assumes that a decision will have to emanate from
10       the bureau to the police and the prosecution
11       authorities.
12   A.  Yes.
13   Q.  It may be in that situation where the manager has
14       decided that the greater number is correct, could a
15       decision emanate from the bureau that there is indeed an
16       identification to the 16-point standard, despite what
17       the second officer has said?
18   A.  I would think, yes, in those circumstances the Head of
19       Bureau would make the final and ultimate decision.
20   Q.  Would you expect, based on practice in England at the
21       time, for the police and the prosecution authorities
22       nonetheless to be told, shall we say for reasons of
23       audit, that though that is the decision, the collective
24       decision of the bureau, there was one dissenting voice,
25       if you like, there was one individual who said, "I
page  17
 1       cannot meet the 16-point standard" or might you expect
 2       the considered view of the bureau simply to be
 3       communicated without the dissent of --
 4   A.  I would imagine it would be classed as an internal
 5       situation and not for publication outside to our CPS or
 6       your Crown Office, that sort of thing, yes.
 7   Q.  So provided that the senior manager has heard the two
 8       views, if he has reached a decision that 16 points is
 9       indeed correct, you could see issuing from the bureau to
10       the prosecution authority an unqualified opinion of an
11       identification to 16 points?
12   A.  Yes.
13   Q.  Thank you very much.
14           If I can then with that take you on to one
15       particular point and ask you to comment on the
16       phraseology that you used in one of your reports and,
17       again, it is in connection with QI2.  If I could ask
18       that there be brought up CO0392 and if we proceed
19       through it.
20           Mr Sheppard, this is a fax which I think in fact
21       does bear your signature?
22   A.  Yes.
23   Q.  It is dated 19th October 2000?
24   A.  Yes.
25   Q.  I will just give you a chance to read it.  What I am
page  18
 1       going to ask you about is at the end of the first
 2       paragraph, the very last two words in capital letters,
 3       "ELIMINATION MENTALITY".  I will give you a chance to
 4       read the context.  (Pause)
 5   A.  Yes.
 6   Q.  In fact, as I explained to you earlier when we were
 7       looking at QI2, I understand QI2 to be a combination of
 8       marks, a cluster identified in part as Marion Ross and
 9       in part David Asbury and that is what you are addressing
10       in this fax.
11           What did you mean, in particular emphasising with
12       capital letters by "ELIMINATION MENTALITY"?
13   A.  It's a phenomena that happens within fingerprint
14       bureaux, particularly in a major incident, a murder or
15       something of that nature.  As soon as somebody becomes a
16       prime suspect or is charged or taken into custody, the
17       support, the information drys up from the Criminal
18       Investigation Department.  They have their man, they are
19       having their small celebration, as I'm sure they would.
20       But you are then left as a fingerprint officer with all
21       the marks that have been received from the case and your
22       duty, your role there, is to try and identify each and
23       every one of them or give an explanation as to each and
24       every one of them.
25           So then you have in some cases a very long and
page  19
 1       onerous task of wading through lots of elimination
 2       fingerprints, things of that sort, when you know in your
 3       heart of hearts that nobody is now particularly
 4       interested.  The case is solved, in inverted commas.  So
 5       that's the elimination mentality that I meant in this
 6       fax, that suddenly it is not as important as it was a
 7       few days ago, the pressure's off, that sort of relaxing
 8       atmosphere.
 9           So I can fully see the situation where the
10       importance that had been attached prior to an arrest or
11       a charge or whatever it might be, that importance drains
12       away and it then becomes rather a mundane task to find
13       answers to all those photographs.
14   Q.  So what you are assuming in writing this fax is that
15       Mr Asbury, having been identified as the suspect and
16       indeed detained, the pressure was off?
17   A.  Yes.
18   Q.  And if, on this hypothesis, an error was made, that's
19       come about because people have been too relaxed and they
20       have been treating it just as a mundane matter to now
21       just process the rest of the eliminations?
22   A.  I can see that situation, yes.
23   Q.  If I tell you that in fact what was occurring at the
24       time of QI2 identification is that the police regarded
25       the tin as highly relevant.
page  20
 1   A.  Right.
 2   Q.  Secondly, that they regarded it as highly relevant
 3       because it contained money, notes, found folded in a way
 4       that might have been consistent with coming from the
 5       deceased and, of course, it's found in the accused's
 6       house and, third level, the police think it's highly
 7       significant because the taking of that money from her
 8       house would suggest a motive for the crime.  The police
 9       are communicating to the Bureau that they regard the tin
10       and the money as highly significant.
11           If I give you those factors, would you accept that
12       the elimination mentality that you have described could
13       not, in fact, have been prevailing?
14   A.  It should not have been prevailing, no, definitely --
15       not in those circumstances.
16   Q.  So just on the hypothesis that an error was made, which
17       is the hypothesis on which you were proceeding, it would
18       not sound from the description I have given you of the
19       background circumstances that that error could in this
20       case be explained by the Fingerprint Officers experts
21       being relaxed and proceeding through mundane tail-end
22       eliminations?
23   A.  No, certainly not.
24   Q.  That concludes my questions about QI2.  If I come more
25       to discuss Y7, when you were asked along with your
page  21
 1       colleagues to examine Y7, you would have been provided
 2       with and aware of some contextual information.  You
 3       would have been aware that this was a disputed mark?
 4   A.  Mmm.
 5   Q.  You would have been aware that some other fingerprint
 6       experts had said that there was a mis-identification in
 7       this case?
 8   A.  Yes.
 9   Q.  And, indeed, you were given access to some of
10       Mr Wertheim's material?
11   A.  Yes.
12   Q.  In looking at the way that Fingerprint Officers operate,
13       would you accept that that would give you, in a sense,
14       contextual information that, based on literature, might
15       have some influence to bias it in either way?  Is that
16       something you would be aware of?
17   A.  No.  At the stage that we received the part of the
18       doorframe with the fingerprint on, which was at
19       Harperley Hall from a Detective Superintendent, Scott
20       Robinson, from Tayside Police and a photograph, I wasn't
21       aware of those informations at that time.  Certain
22       things were mentioned in a discussion that we had as to
23       what he was looking for, what he expected us to achieve.
24       But, no, I didn't see Wertheim's explanations or
25       diagrams until long after we'd started the process.
page  22
 1           The first thing I did was get our own photographic
 2       department to renew the photographs for me.  So, no.
 3       Then elimination fingerprints started to be received
 4       from Mark Wilson and Tayside Police and along with those
 5       came Wertheim's diagrams.
 6   Q.  Looking just at the question you have raised about
 7       having the doorpost rephotographed, when you and your
 8       colleagues were doing the comparison work, plainly the
 9       police would have given you a copy of an inked ten-print
10       form?
11   A.  Yes.
12   Q.  Or a series, for Y7, an inked ten-print form for Shirley
13       McKie?
14   A.  Yes, I think we received three in total of Shirley
15       McKie.
16   Q.  In relation to the photograph you were using in the
17       comparison process, did you exclusively use your own
18       Durham image?
19   A.  Yes.
20   Q.  You didn't use any of the other images?
21   A.  No.
22   Q.  So, therefore, what you all along were using was an
23       image that would have had the striation across the mark?
24   A.  Yes, it did.  When the doorframe was received that
25       damage, if that's what you call it, had already taken
page  23
 1       place.  So we photographed with that line through the
 2       impression.
 3   Q.  Did you consider the possibility of looking at an
 4       earlier image to gain a view of the mark without that
 5       striation?
 6   A.  Yes, we did.
 7   Q.  Did you do that?
 8   A.  Yes, we did.  For obvious reasons, how much damage or
 9       what had that obliterated and in actual fact it hadn't
10       done any real damage to the impression whatsoever.
11   Q.  So far as earlier images are concerned we are aware of a
12       number of earlier images.  We are first of all aware of
13       the original images taken by Strathclyde Police Scenes
14       of Crime Officers and, indeed, there's at least three
15       sets of those.
16   A.  Right.
17   Q.  There were also images taken by Mr Terry Kent from the
18       Home Office?
19   A.  I know Terry, yes.
20   Q.  Do you have a recollection of the source of the original
21       image that you used when you were comparing against your
22       own images to consider the impact of the striation?
23   A.  As far as I'm aware, it came from Strathclyde Police and
24       was one of the original photographs taken.
25   Q.  Can I move then on to my next topic which is to look at
page  24
 1       the opinion that was expressed about the possibility of
 2       collusion among the Scottish Criminal Record Office
 3       officers.
 4           If I bring up for you a document CO1318 and if we
 5       move to the second page.  Mr Sheppard, this is a
 6       synopsis of a meeting held at Auchterarder Police
 7       Station on 2nd August 2000 with you along with Mr Ablett
 8       in attendance with, as you say, Detective Chief
 9       Superintendant Scott Robertson and another police
10       officer.  Do you have a recollection of this meeting?
11   A.  Yes, I do.
12   Q.  Perhaps we could bring up the second page of this as
13       well, if you wish to take a chance just to familiarise
14       yourself with this document please do.  It is really the
15       second paragraph, the numbered paragraph, number 2, the
16       second one at the bottom I want to ask you about
17       primarily but you may want to look at it.  (Pause)
18   A.  Yes.
19   Q.  You tell us in your own statement, if I just begin
20       there, in paragraph 67, you tell us that you and your
21       colleague found only three points that were possibly in
22       sequence and agreement between Y7 and Shirley McKie?
23   A.  Conclusive points, yes.
24   Q.  And not the 16 that were found.
25   A.  Yes.
page  25
 1   Q.  I don't want to take up time just now because it is
 2       rather a lengthy process with images to try and
 3       demonstrate that.  I will proceed for the moment on the
 4       hypothesis that that is correct.
 5           The disparity between what you saw of 3 and what had
 6       been reported as 16 would, in itself, already be causing
 7       you concern, you'd be wondering how did 4 officers
 8       independently arrived at that same, as far as you would
 9       see, significantly erroneous conclusion?
10   A.  Yes.
11   Q.  Can I leave that just to the side and see whether in
12       what follows there may be the possibility of an innocent
13       explanation and, therefore, my thesis would be whether
14       we are left simply with that stark contrast between your
15       professional opinion of 3 and their professional opinion
16       of 16.  I'm going to look at some of the other factors.
17           Among the factors that you mention in this report or
18       this minute from the meeting is the poor quality of the
19       photographs that you were looking at and also the fact
20       of cropping.  Those are among the factors?
21   A.  In the court exhibits, yes, yes.
22   Q.  In particular, if we look just so that I am very clear
23       about the images we are talking about, in the second
24       paragraph, numbered 2, that's the large paragraph, you
25       happen to mention productions 152 and 180.  So,
page  26
 1       therefore, we can assume that these are materials that
 2       you studied at the time that you were provided with?
 3   A.  Yes.
 4   Q.  If I bring them up and I do by coincidence have them in
 5       the hall today if you wish to look at the originals, if
 6       I bring up, firstly, 152, which is ST0006.  Again
 7       perhaps we could start at the third page.  So we can see
 8       now a cover sheet and the reason for saying if you wish
 9       to look at the originals what we are going to look at is
10       digital reproductions of these documents.  I have the
11       originals here if you wish to look at them.
12           So we are looking at production 152 and if I proceed
13       through it and stop there, I have stopped at page
14       numbered 6 on the PDF which happens to have two slightly
15       different images of Y7.
16           Now, as I've said, they are not best reproduced on
17       this digital image.  Perhaps you want to have a look at
18       the original because what I was going to ask you is
19       whether when you were commenting on the poor quality of
20       the photographs you were commenting on these images or
21       what I will next show you, page number 7.  The page
22       numbered 7 is certainly these are cropped images with
23       points highlighted.
24           From recollection, were you commenting on the poor
25       quality of what is shown on page 7 or were you also
page  27
 1       commenting on the poor quality of the original
 2       photograph images of Y7?
 3   A.  Not the originals.  We were commenting on this core
 4       presentation.
 5   Q.  So you were presenting on 007?
 6   A.  Yes.
 7   Q.  The same just for completeness, if I look at production
 8       180 which is DB0011, again we proceed to the third page
 9       we'll see we are looking at production 180, again it
10       will be the last two pages, 5 and 6.  If I stop there
11       again we see two images of Y7.  I will not take up time
12       with those whether they are identical to the other two
13       or not but then page number 6, two images with numbers
14       applied.  Again, if we are looking at production 180 do
15       I understand that the question of poor quality is
16       applied to this final sheet 6?
17   A.  Yes.
18   Q.  Something else we will look at about the documents being
19       identical if I could bring up -- if I could put what's
20       on the screen just now at the bottom of the screen and
21       put immediately above it ST0006, page 7, if I tell you
22       that these are what we have come to call charting
23       enlargements of Y7, against Shirley McKie's fingerprint,
24       in productions 152 and 180, do I take it that you found
25       that there were two productions, we assume these two,
page  28
 1       where the images used were identical, that is that lines
 2       traced from pixel to pixel identically, and that was a
 3       matter you commented upon?
 4   A.  Well, I commented because myself and my two colleagues
 5       were of the opinion at the time that these enlargements,
 6       these court presentations would be produced by the
 7       separate individuals not one producer and then they all
 8       concur and put their names to it.
 9   Q.  This is where I wanted to put to you an explanation and
10       see whether it diminishes the concern you had about
11       these other factors.
12           First of all, we understand that in Scotland the
13       practice was that four individuals, experts, would be
14       expected to proceed through an independent verification
15       process, so to arrive independently at a conclusion on
16       identification, but once that was done, then what the
17       prosecution expected of them underwritten by statute was
18       one joint report.
19   A.  Right.
20   Q.  First of all, that was not something you were aware of?
21   A.  No, no.
22   Q.  And it was common practice for the four individuals to,
23       in fact, sign one joint report.
24   A.  Right.
25   Q.  So you weren't aware of that?
page  29
 1   A.  No, no.
 2   Q.  Secondly, it was common practice for the officers to
 3       produce for court illustrations that we have here.
 4       Those illustrations were no more than illustrations.
 5       They were not saying they had reached their opinion by
 6       reference to these chartings.  They were simply
 7       producing for the court a demonstration item so that
 8       they could say to the jury, "This is the type of way we
 9       go about the exercise.  Yes, these are 16 genuine points
10       of identity as far as we're concerned but they are not
11       necessarily the 16 that each of us found, we might have
12       a different combination"?
13   A.  I wasn't aware of that.
14   Q.  The final piece of explanation is that these images were
15       produced on a computer so they were digital images and
16       we are, after all, talking about 1997, not so long ago
17       but at an early stage of this type of technology?
18   A.  Oh yes.
19   Q.  That the technology was recognised as producing poor
20       quality images.  That is what the officers had available
21       to them for this demonstration purpose.  You understand
22       that.  That is not something you were aware of?
23   A.  No.
24   Q.  In addition, the technology, because of presumably the
25       limited capacity of the software, would only produce a
page  30
 1       small area so that we would highlight an area, hence the
 2       cropping.  Not something that you were aware of?
 3   A.  No.  No, not at all.
 4   Q.  If I put all of that together, might that explain the
 5       factors that you were considering; namely, the fact that
 6       the photographs were poor quality?
 7   A.  Mm-hm.
 8   Q.  That they had cropped, they were cropped?
 9   A.  Yes.
10   Q.  That they were joint, signed up to by four officers?
11   A.  Yes.
12   Q.  And if I make -- I will make this quite explicit -- if I
13       make an assumption that one can take down from the
14       computer any number of copies of the same image so that
15       the two reports perhaps prepared at different times
16       would nonetheless have print-offs from the same
17       computer, hence would be identical, that could explain
18       that particular factor?
19   A.  Yes, certainly, yes.
20   Q.  All of that might suggest -- I put this to you for
21       comment -- that these ancillary factors which did cause
22       you very genuine concern might be capable, as your
23       minute had said, of explanation?
24   A.  Quite possibly, yes.
25   Q.  Therefore, leaving as the issue that would be of concern
page  31
 1       that the point I am choosing not to take up with you
 2       just now (namely, whether you are correct that there
 3       were only 3 as opposed to 16 points) that would be the
 4       one issue that would remain that requires to be debated
 5       and resolved?
 6   A.  Yes.
 7   Q.  Thank you.
 8           One final point if I may just for completeness in
 9       relation to this topic and then there is one final point
10       to ask you about, in your statement to the Inquiry at
11       paragraph 77 -- you may wish to just bring that up --
12       what I want to ask you about is the proposition that an
13       explanation for the error in relation to Y7 is that only
14       six points might have been found and the officers
15       refused to admit that later.  If I let you read the
16       context and then I will come back to my question.
17       (Pause)
18   A.  Yes.
19   Q.  Sorry, even with up-to-date technology some of us are
20       slow ... what I wanted to ask you about was really in
21       relation to paragraph 77, if I understand it, what you
22       are doing is you are taking the knowledge that you had
23       at the time that you have told us for an elimination the
24       Scottish Criminal Record Office might work as low as
25       six?
page  32
 1   A.  Yes.
 2   Q.  And would you accept this: that what you are doing is
 3       conjecturing that an explanation was that the officers
 4       looked only to the six points, found themselves in the
 5       dilemma you have described earlier, what was an
 6       elimination initially became identification later, they
 7       got themselves in a bind and they just didn't admit that
 8       that change in elimination to identification had
 9       occurred.  That is what you are assuming.
10   A.  I'm assuming that with one proviso.  When I met with
11       Scott Robinson -- Robertson, sorry, at Harpley Hall, he
12       made me aware that David Asbury's fingerprint had been
13       found on a Christmas wrapping gift label and that was
14       the way he had come into the frame, as it were.  So, as
15       far as I was aware, that was the lead information
16       provided by the Fingerprint Bureau as to any charge that
17       may be laid against David Asbury.
18           So subsequent to that we thought that anything else
19       that was being dealt with was purely and simply part of
20       the elimination process.  It might well not have been.
21   Q.  So would you accept from me, therefore, that what you
22       are doing is simply conjecturing and you have no
23       evidence yourself from what you have observed to base
24       paragraph 77 on?
25   A.  It had to be based on conjecture.  We were very limited
page  33
 1       in what we knew or were told about the processes within
 2       SCRO or other fingerprint bureaux in Scotland.
 3   Q.  If I move on again to paragraph 78, in the fourth line
 4       half way into that line you say:
 5           "My view was at least one of the officers must have
 6       had doubts about the accuracy of the identification and
 7       felt under pressure to support the identification."
 8           Do I take it that what you are saying there is,
 9       again on the hypothesis we are having these questions,
10       if there were only three points at most in sequence and
11       agreement then you would believe that any responsible
12       fingerprint officer must have had doubts about finding
13       16?
14   A.  Yes.
15   Q.  And, therefore, you are, on that basis, inferring or
16       conjecturing that one of the four Scottish Criminal
17       Record Office officer experts who signed the report must
18       have had doubts?
19   A.  Yes.
20   Q.  Again, you would accept from me, would you, that that is
21       conjecture, that you have no information on which to
22       relate any one of the four did, indeed, have doubts?
23   A.  No; pure conjecture.
24   MR MOYNIHAN:  Thank you very much, Mr Sheppard.  I have no
25       further questions.
page  34
 1   THE CHAIRMAN:  Mr Smith, have you any application?
 2   MR SMITH:  Yes, I do, sir.  I would like to ask about the
 3       following matters: the first is this witness's opinion
 4       on whether it is one touch or two touches which we heard
 5       some evidence about before; the second is his opinion
 6       relating to the mark QI2 and what his views are about
 7       that; the third is if he feels from the information
 8       provided SCRO fell below a standard expected, by what
 9       degree they fell below that standard; the fourth point
10       is a question regarding whether he considers it
11       realistic that 172 prints could be eliminated to the
12       16-point standard, which I understand was the position
13       of one of the SCRO officers; the next point relates to
14       the quality of the Internet image and the suggestion
15       that it's inferior to other images available to SCRO;
16       and, finally, to put to this witness the comments of
17       Mr Geddes relating to, notwithstanding there being a
18       difference, there can still be sufficient to identify a
19       mark.  These are the matters I would like to ask about,
20       sir.
21   THE CHAIRMAN:  Yes, very good.  Keep to those.
22                    Cross-examined by MR SMITH
23   Q.  Mr Sheppard, I would like to ask, first of all, the
24       question about whether in your opinion Y7 was a single
25       touch or more than one touch.  I am sure you understand
page  35
 1       the point I am seeking to make.
 2   A.  Yes.
 3   Q.  As far as that is concerned, perhaps you can just tell
 4       us now: do you --
 5   A.  We were of the opinion that it was one touch.
 6   Q.  You say "we".  That would be --
 7   A.  Myself and my two colleagues who worked with me on this.
 8   Q.  Did you have any difficulty in reaching that conclusion
 9       that it was a single touch?
10   A.  No.
11   Q.  You will appreciate, of course, that there has been a
12       suggestion in this matter by a number of individuals
13       that it was more than one touch that took place.
14   A.  Yes.
15   Q.  Perhaps if I just put to you a number of matters.  Your
16       position, as you have said, together with your
17       colleagues was it was one touch.
18           Was there any difference in pressure between any
19       parts of it, the lower part and the upper part, anything
20       you could give an opinion on?
21   A.  Yes, but that's inevitable in any fingerprint
22       impression.  There will always be a variance.  The skin
23       is made of quite an elastic material so it will change
24       and vary dependent on pressure applied.
25   Q.  Would that also depend on movement, if someone
page  36
 1       undertakes, if the finger is, for example, pressed and,
 2       as it were, rolled forward rather than to the side.  Is
 3       that a way in which pressure can be exerted in different
 4       ways?
 5   A.  Yes, particularly with a thumb.
 6   Q.  Particular; thank you.
 7           I think, as I have said, your position is one touch,
 8       I think you say with variable pressure.  Would you be
 9       able to say it was greater pressure at the top section
10       of it or the bottom section or is it hard to tell?
11   A.  It's hard to tell.  If I was pressed for an answer I
12       would say perhaps at the top.
13   Q.  Greater pressure at the top?
14   A.  Yes.
15   Q.  I think we will no doubt hear in due course that
16       Mr Zeelenberg -- which I'm sure is a name known to you,
17       Arie Zeelenberg?
18   A.  Yes.
19   Q.  You are smiling.  Is he well-known to you?
20   A.  Fairly well known, yes.
21   Q.  Mr Zeelenberg, I think his position is that it's one
22       touch with pressure on the top.  Mr Wertheim I think is
23       also of the impression that it's one touch with pressure
24       at the top and the Aberdeen experts' I think view it was
25       one touch with pressure at the top.
page  37
 1           Now on the other hand I think Mr Peter
 2       Swann's position -- is Peter Swann someone known to you
 3       professionally?
 4   A.  I've met him a couple of times, yes.
 5   Q.  I wonder if we could have an image please of Y7 called
 6       up.  I will try to get one that is of some use.  Perhaps
 7       while we are getting the image called up, if I suggest
 8       to you that, as I understand Mr Swann's position now
 9       relating to mark Y7, his suggestion is that there is a
10       single digit, I think his position, but the lower half
11       of it was applied or put it this way, the upper part of
12       it was applied following a 66-degree twist, if you
13       follow, not 65 or 64 but 66-degree twist which accounts
14       for, I think, his position is a difference in the
15       bifurcations at the top of Y7 and at the top of Shirley
16       McKie's mark.
17           Do you understand what I'm suggesting to you?
18   A.  I do, yes.
19   Q.  Just generally -- I don't wish to go into the detail of
20       it -- but do you have any comment on that as a possible
21       scenario, a 66-degree twist and applied at the top to
22       justify the difference in bifurcations?
23   A.  I wasn't aware of any of those opinions, to be perfectly
24       frank, but as to Mr Swann's I would have a great deal of
25       scepticism how he arrived at such an opinion.
page  38
 1   Q.  If one was to apply the lower part of that finger and
 2       then twist it in that way, are you able to assist with
 3       the probability of being able to do so without any
 4       cross-over lines resulting in the print appearing at
 5       least to be contiguous?
 6   A.  I think with a great deal of practice you might achieve
 7       it but not as an accidental mark which I believe this
 8       was.
 9   Q.  So something you think possibly could be replicated
10       let's say in a laboratory --
11   A.  With a great deal of time, patience and practice.
12   Q.  I wonder if we could have up an image, please, of
13       mark Y7, Mr Kent's photograph, which is CO0020.
14   MR MOYNIHAN:  Sir --
15   MR SMITH:  Sorry?
16   MR MOYNIHAN:  May I make a suggestion to my learned friend?
17       If we are looking at the question of one touch or two,
18       the image we used yesterday, which I think was a Mr Kent
19       one, was DB0138.
20   MR SMITH:  I am obliged.
21   MR MOYNIHAN:  Then he is speaking to the same image.
22   MR SMITH:  Absolutely, I am content with that.
23           If we flick through until we get to the image of Y7.
24       Yes, that is orientated in a slightly better position.
25           Were you able to and are you able to see any
page  39
 1       indication of cross-over ridges on that particular
 2       image?
 3   A.  No.
 4   Q.  If you were to view -- I don't know if it's possible to
 5       zoom in a little bit on the actual mark -- thank you --
 6       if one was to follow the ridges, as it were, from the
 7       left-hand side and the right-hand side and just follow
 8       them up, are you as an expert able to see that the
 9       ridges at the edge effectively continue if you were just
10       to count up to give an indication as a single image from
11       bottom to top.
12           Is that something you were able to do?
13   A.  We checked that when we first received the project
14       required of us.  We were all, after a great deal of
15       study, I can assure you, convinced it was a one-touch
16       print.
17   Q.  Is that as a result of following the ridges up the side?
18   A.  Yes, you follow the flow of ridges.
19   Q.  You see, I think the suggestion was made by Mr Kent
20       yesterday was that perhaps -- perhaps, he didn't venture
21       any finalised position as a fingerprint expert -- but
22       perhaps it could be said to be a break on the left and
23       right-hand side which would indicate two different parts
24       of the image, if you follow?
25   A.  I think one of the things it might help you to
page  40
 1       understand is this is, to all intents and purposes, a
 2       mark left accidentally, not planted or prescribed in any
 3       way, shape or form and when applying a fingerprint in an
 4       accidental manner than the pressures will change
 5       considerably in some cases within millimetres.
 6   Q.  Do you have any comment, perhaps if I just put this to
 7       you, let us imagine it was two separate dabs, if I put
 8       it that way, whether twisted or not.  I suppose it would
 9       be possible that the top part of the dab and the bottom
10       part of the dab would be somewhat out of sync.  So if
11       you followed the side of the mark up the way then you
12       would have to have a step round.  Do you follow?
13   A.  Mmm.
14   Q.  The fact that there is no such step between the top and
15       the bottom part, does that tend to support the idea that
16       this is a single impression perhaps, as you say, with
17       different pressure?
18   A.  Yes, certainly.
19   Q.  I suppose it would be a remarkable thing if there could
20       be two separate movements but you can almost draw a line
21       round the entire print in an oval shape?
22   A.  I imagine it would take years to perfect.
23   Q.  Just going through the other views, as I understand it,
24       about the quality of the top part and the bottom part, I
25       think Mr Hugh Macpherson in the course of the trial -- I
page  41
 1       don't need to go any information about it -- but in the
 2       course of Shirley McKie's trial indicated that the tip
 3       of the print is either subject to superimposition is
 4       what he said, one upon itself, upon another print or
 5       because of such severe twisting and distortion it is not
 6       an area which is conducive for comparison purposes.
 7           Do you think that has any validity?
 8   A.  No, I don't think so.
 9   Q.  Can I ask why not?
10   A.  Well, we studied -- we had heard the supposition that it
11       was a double touch when we were presented with this
12       project by Scott Robertson.  So one of the first things
13       we did when we had our photographs made was try and
14       satisfy ourselves that, yes, that opinion was correct or
15       was incorrect and there was nothing revealed within the
16       photographs that we made that led us to believe that it
17       was a double touch in any way or superimposed in any
18       way.
19   Q.  I think also for completeness Charles Stewart, one of
20       the other SCRO officers, in the course of his evidence
21       to the trial of Shirley McKie indicated likewise, that
22       the top of the print appeared to have an area of
23       distortion across it and he was uncomfortable with it
24       but you have given your position about that.  You
25       disagree with that, I think?
page  42
 1   A.  I don't disagree.  Particularly with a thumb, the
 2       pressure points when applied either accidentally or
 3       deliberately to any given surface will change the
 4       appearance, in that towards the top of the thumb, the
 5       tip of the thumb the ridges will appear broader than
 6       those at the ball of the thumb around the main pattern
 7       area.
 8   Q.  Perhaps I can put to you something that was said by
 9       Fiona McBride in the course of the trial of Shirley
10       McKie for your comment.  She said this:
11           "Because with 14-years' [experience was her level of
12       experience at that time] I know that that cannot be
13       properly interpreted [that is the top part of the
14       print].  There is too much wrong with it.  I (...read to
15       the word...) and only someone who is not an expert would
16       attempt to interpret those ridges."
17           So I suppose what she's saying is that if you were
18       trying to interpret it, you were going contrary to your
19       expertise.
20           Do you have any comment on that evidence?
21   A.  I would be intrigued to know what any expert would do if
22       that's all they had available to them, the top of that
23       fingerprint or thumb print.  You would be expected to do
24       something with it.  It is comparable.  It's a poor area,
25       I grant you, but it's certainly comparable and if that's
page  43
 1       all they've been left with what would their opinions
 2       have been at that time?
 3   THE CHAIRMAN:  Just before we -- if you are leaving this
 4       particular aspect -- is there any movement?  I can
 5       understand a single touch, if you say that's what it is,
 6       but that doesn't or does it remove the possibility of
 7       movement within the single touch.
 8   A.  Movement, perhaps it does eliminate that, but pressure
 9       is the most vital ingredient in a finger impression of
10       this sort.  The nearer the tip of the thumb you go the
11       greater the pressure.  The bone is nearer the surface of
12       the skin and so spreads, pushes the skin aside.  Whereas
13       at the fleshy part of the thumb the bone is, you know,
14       well secreted within that padded area.  Distortion or
15       change of appearance or the thickness of the ridges
16       doesn't apply in the same aspect.
17   THE CHAIRMAN:  But one could imagine if you put your thumb
18       on a surface, it's a single touch but there is a slight
19       movement if you are moving your hand to the right or
20       left.
21   A.  Absolutely.
22   THE CHAIRMAN:  But there's none of that or do you see that
23       in this --
24   A.  No, we didn't see it at all.
25   THE CHAIRMAN:  No movement?
page  44
 1   A.  No, none that we wouldn't expect -- no deliberate
 2       movement or change in that aspect.  We considered any
 3       change in appearance is purely and simply by pressure.
 4   THE CHAIRMAN:  Yes, I see.  Thank you.
 5   MR SMITH:  Can I ask you to look at another document,
 6       please.  Can we keep that particular image relatively
 7       handy because we might want to come back to it.  The
 8       other document is CO0227, please.  Can you go to the
 9       next page.  Sorry, one other page and, again, please ...
10           I think this is a document that bears your signature
11       at the bottom.  I take it you can confirm that's your
12       signature?
13   A.  Yes.
14   Q.  I would just like to read through some of this.  This
15       bears to be a fax cover sheet of 10th August 2000 to
16       Detective Chief Superintendent Robertson from yourself
17       regarding the SCRO investigation and I think what you
18       say here under the comment section is:
19           "This is a draft [and it's underlined twice] report
20       forwarded for your comments, please.  A fuller version
21       will be sent to you when Peter Ablett returns from
22       holiday ... there is so much more that we could write
23       though much of it would be conjecture on our part."
24   A.  Yes.
25   Q.  I would like to the report.  Can we go two pages into
page  45
 1       the report and, to be very clear, this is a draft we can
 2       see at the bottom but I would just like to go through
 3       this.
 4           Before I do so, can I ask was there any significant
 5       change to the content of this report between the draft
 6       and the finalised version?
 7   A.  No, very little.
 8   Q.  I think, just reading this report, you explain in the
 9       first paragraph -- I don't need to go through all of
10       this with you but you explain what the purpose of your
11       involvement was.
12   A.  Yes, as we understood it.
13   Q.  Yes, as you understood it.  In the second paragraph, you
14       explain:
15           "In order to maintain an independent view and avoid
16       any prejudice in the task, photographs of a developed
17       scene mark referred to as neg 7 on a white painted part
18       of the doorframe were taken at the NTC by conventional
19       methods ..." and you explain how that is done --
20   A.  Yes.
21   Q.  -- how they were developed, et cetera.
22           Then you say:
23           "We had been made aware that the crime scene mark Y7
24       had been damaged since the original identification but
25       on careful examination it did not impede our task or our
page  46
 1       methodology."
 2   A.  Yes.
 3   Q.  You explain that:
 4           "A classroom was closed off for use solely by the
 5       examination team [yourself], Mr Grigg and Mr Thompson
 6       all of whom are fingerprint instructors employed by the
 7       NTC and who have a combined experience in the analysis,
 8       comparison and evaluation of fingerprints exceeding
 9       80 years.  Each staff member would in turn scrutinise
10       the information, draw their conclusions totally
11       independently of each other prior to having sight of the
12       SCRO exhibits and then finally the comparison chart of
13       Mr P Wertheim, the US consultant used by defence team of
14       Shirley McKie.  When all three had reached their
15       decisions, then to sit as a group to disclose views and
16       findings, also to offer opinion of the evaluation of (a)
17       the identification itself and (b) the SCRO court
18       presentations."
19           Reading on:
20           "Our conclusions were unanimous regarding (a) the
21       scene mark Y7 was not identical to the theft thumb print
22       of McKie nor was it identical to any of the fingers or
23       thumb print on the charge set and elimination sets in
24       her name.  The reasons for examining the right thumb and
25       all the fingers being that we were not entirely
page  47
 1       convinced that the scene mark in question is that of a
 2       left thumb as is alleged."
 3           Can I pause there for a moment?  I realise this is
 4       not an exact science, but does the distribution of
 5       particularly bifurcations in a particular way to an
 6       experienced eye perhaps suggest whether a print may be a
 7       left as opposed to a thumb print without actually seeing
 8       the inked marks; is that right?
 9   A.  It's perhaps an indicator and might suggest, yes.
10   Q.  I think we heard the suggestion maybe in about 80
11       per cent of cases it could be an indicator but you
12       can't --
13   A.  I'm wouldn't like to put a numerical value on it -- I
14       really wouldn't.
15   Q.  That explains that comment, that you thought you would
16       look at the other thumb just to make sure it wasn't the
17       other one that was --
18   A.  Absolutely.  We consider that to be our role, yes.
19   Q.  Reading on you say:
20           "Regarding (b) the issue of the presentations,
21       particularly those references 92 and 102, we were
22       dumbfounded that these exhibits were ever considered
23       worthy of being put before a court and I will now
24       explain this reaction.  The enlarged photograph of the
25       mark Y7 and the left thumb print of McKie are presented
page  48
 1       in such a manner that the red exit lines indicate the
 2       supposed corresponding characteristics do not in fact
 3       indicate the features (ridge endings and bifurcations)
 4       purported to be visible in both of the photographs and
 5       missed their mark by a significant margin.  Of the 16
 6       ridge characteristics highlighted by these exit lines,
 7       we find that only in three could we find any comparable
 8       feature to be in similarity [I suppose that should be]
 9       these being numbers 1, 3 and 4.  The other 13 vary
10       markedly in that number 2 is marked a as plain ridge on
11       Y7 whereas it is indicating a bifurcation on the
12       ten-print."
13           The ten-print is the set of inked prints, isn't it?
14       Is that right, Mr Sheppard?
15   A.  Yes.
16   Q.  "Number 5 indicates a ridge end and Y7, although it is
17       clearly different on the ten-print, number 6 indicates a
18       ridge end but a similar characteristic is on the next
19       ridge ..." et cetera, et cetera.
20           You say:
21           "We find that the exhibit chart produced by Mr P
22       Wertheim demonstrates admirably the discrepancies we
23       found."
24           I don't wish to descend into looking at the detail
25       of whether it was a bifurcation or a ridge ending but,
page  49
 1       generally speaking, the charts that were produced to you
 2       I think you indicate that there were minute
 3       discrepancies between the Y7 and the inked mark.  But
 4       can I ask you for your comments as far as Pat Wertheim's
 5       demonstration is concerned: what was it you were
 6       provided with?  Was it a folder with acetate overlays in
 7       it?
 8   A.  Yes, it was.
 9   Q.  Had you ever seen a presentation like that before?
10   A.  Not on a fingerprint.  I had on an ear print, yes.
11   Q.  On a ...?
12   A.  Ear print.
13   Q.  You say it demonstrates admirably the discrepancies that
14       you found.  As a method of presentation, just the method
15       of presentation to a jury, did you consider that to be a
16       good way of trying to explain to a jury what was being
17       done?
18   A.  It wouldn't be my chosen way but I can certainly see it
19       Mr Wertheim's way.
20   Q.  As far as the charts, we have seen some evidence of them
21       before this Inquiry, as you have, and what was available
22       to you, do you consider that they are in any way
23       instructive to a jury as to what an expert is seeking to
24       do?
25   A.  No, not really.
page  50
 1   Q.  I think it's been now acknowledged that with great
 2       difficulty it's very hard to see where the lines go
 3       to --
 4   A.  Yes.
 5   Q.  -- in the lines relating to Y7 as opposed to the inked
 6       print.
 7   A.  Yes.
 8   Q.  Again, is that a concern that you have, that it really
 9       doesn't actually show you anything other than the very
10       basic theory?
11   A.  Yes, we had great concern about it.
12   Q.  Just going on with the report, you go on to say:
13           "Mention must also be made of the sizes of the
14       photographs used.  These in our view are exactly the
15       same presentations produced electronically or digitally
16       in that the exit lines are uniform down to pixel size,
17       an achievement we find incredible."
18           Before reading on, I think you explained that you
19       had understood that each of the three presentations were
20       made by different individuals?
21   A.  Yes.
22   Q.  Your concern was of course that they appeared to go to
23       exactly the same pixel and the chances of that happening
24       from three independent experts was just impossible?
25   A.  Yes.
page  51
 1   Q.  Having heard, I think, that the presentation of each of
 2       them was effectively prepared by the same individual or
 3       individuals, it is less surprising.
 4   A.  Yes.
 5   Q.  However, can you help me with this: do you have any
 6       comment on the fact that three different presentations
 7       were actually produced and what possible reason there
 8       could be for that?
 9   A.  I have no explanation for that whatsoever.
10   Q.  Going on with your report, I think what you say is this:
11           "The ten-print photographs appear fairly uniform but
12       the scene mark photographs have been reduced by savage
13       trimming or cropping to a minuscule size, for reasons
14       which we cannot condone and which cause us at this
15       centre grave concerns.  Characteristics and features
16       which a lay person might reasonably be expected to note
17       that are clearly in disagreement have been removed by
18       the reduction in size of the photographs.  The
19       resolution of the photograph of scene mark Y7 is of such
20       poor quality, displaying no meaningful contrast,
21       reducing all clarity below what we consider an
22       acceptable level, together with the focus being slightly
23       out of true, leaves us with only one view point that it
24       was produced deliberately in such a manner to negate
25       debate or meaningful cross-examination of the producing
page  52
 1       experts."
 2           Now, I think it has been explained to you that the
 3       charting machine was used --
 4   A.  Yes, subsequently it has been explained, yes.
 5   Q.  But can you see any difficulty, if there is a problem
 6       with the charting machine, first of all, that being
 7       disclosed let's say to defence counsel, there wouldn't
 8       be any problem about saying, "I'm sorry, it's not very
 9       clear but that's the machine's fault and not our fault".
10       There'd be no difficulty about that being disclosed,
11       would there?
12   A.  Perhaps not, no.
13   Q.  And indeed in any report one would perhaps expect to see
14       a rider, an explanation, "This is the best we can do
15       with the equipment we've got but it's not particularly
16       helpful"?
17   A.  Yes, but I don't see why knowing it was going to
18       produce -- this machine was going to produce something
19       less than satisfactory that it couldn't be done
20       manually.
21   Q.  Can we have -- again, I want to come back to this
22       particular document but could we have up SG0710.  If you
23       take it from me that I think we can see a date on this
24       18/02/97, I think that is probably at the top of the
25       page, produced by Hugh Macpherson.  We understand that
page  53
 1       this was produced at about or possibly just before the
 2       trial, some time about then there was a document
 3       produced.  You will not have seen it before?
 4   A.  No.
 5   Q.  We will come to some photographs in a few moments but
 6       there is a list here of 16 items that we can see.
 7       Ignore the date at the bottom, 02/02/06, it was again
 8       reproduced but I think we understand this document to
 9       have been originally produced some time previously.
10       Whether it was or wasn't we can see a list of 1 to
11       16 points with descriptions of what the various points
12       are.
13           I won't ask you to comment on them because if we
14       flick on to the next page, please, there's a photograph
15       of the mark in situ and on to the next page, please, now
16       we can see a photograph of the entire mark.  Obviously,
17       in the photocopying process we have missed some numbers
18       we see 1 to 6 then we are missing 7, 8, 9, 10 which I
19       guess are probably off somewhere to the left of the page
20       because of where the lines are.  Do you see what I mean?
21   MR MOYNIHAN:  Sir, I hesitate to interrupt but before we
22       waste too much time, one of the problems may be my
23       learned friend is looking at a photocopy.  This is a
24       photocopy of the original.  The assumption that this
25       document dates from before the trial I believe to be
page  54
 1       incorrect and perhaps by looking at an original of this
 2       item I may be able to explain the matter to my learned
 3       friend.
 4           I see what the time is.  Perhaps a better use of the
 5       time --
 6   THE CHAIRMAN:  I was going to suggest if you took a break
 7       now, you could produce the original and usually we rise
 8       for 20 minutes.  11.45 we will sit again.
 9           So will just interrupt your evidence for a few
10       minutes, if you don't mind.
11   A.  Certainly.
12   (11.25 am)
13                         (A short break)
14   (11.45 am)
15   THE CHAIRMAN:  The document has been provided, has it?
16   MR SMITH:  Yes, I have seen the original of the document.
17       Perhaps if I just explain to you, Mr Sheppard, that
18       there is some doubt as to whether or not this report was
19       prepared prior to the date 2006.  But can I ask you to
20       move on to the next page of it, please, and the next
21       page.
22           We can see the mark Y7 with a number of lines going
23       to it.  I have seen the original and, as I suspected,
24       there were more stickers to the left-hand side that have
25       not actually been copied.
page  55
 1           The next page, please.
 2           We can see what appears to be the inked mark and,
 3       again, you can see the same difficulty that some of the
 4       stickers to left have been omitted.
 5           I think you indicated before the break that if there
 6       was a problem with the charting enlargement machine
 7       there was no reason why you couldn't revert to a
 8       traditional way of presentation without the charting
 9       enlargement?
10   A.  Yes.
11   Q.  If this could be done in 2006 we presume there was no
12       reason it couldn't be done in 1997 or, indeed, done
13       yesterday?
14   A.  Absolutely -- it was done 1905, so yes.
15   Q.  So as far as your comments concerned in your report that
16       we looked at, the draft report, does the comment remain
17       true that by excluding the top part of the print we are
18       managing to exclude some differences that, I think you
19       put it, the untrained eye might be able to spot as
20       demonstrated by Mr Wertheim?
21   A.  Yes.
22   Q.  As far as the particular charting enlargements are
23       concerned, I wonder if we can have DB0011, please, which
24       was production number 180.  Can we flick through to
25       possibly the second page, next page and next again.  Are
page  56
 1       we able to put that to one side of the screen and open
 2       up ST0006.  Thank you.
 3           Now, I think we can see that the reproduction of the
 4       inked mark on the right-hand side of the page appears to
 5       be pretty well identical as between these two images.
 6       Do you see that?
 7   A.  Yes.
 8   Q.  But as far as the representation of the mark Y7 is
 9       concerned, I think we can see there is a difference
10       between the two representations, the one at the bottom
11       if I take that, first of all, we can see that there is
12       an area, possibly 25 per cent of the image at the bottom
13       of the page, that certainly doesn't have any red lines
14       going into and ending there and is somewhat lacking in
15       ridge detail in that area?
16   A.  Yes.
17   Q.  If perhaps move that if we look at the image at the top,
18       we can see what has happened is the picture, as it were,
19       has moved up the page a little bit so less irrelevance
20       at the bottom and I suppose you could say more
21       irrelevance at the top in the sense that there are no
22       red lines ending up there?
23   A.  Yes.
24   Q.  We can take from that of course one presumes that one is
25       capable of photographing any part of the mark Y7 on the
page  57
 1       charting enlargement that one wishes to do so; is that
 2       fair?
 3   A.  Yes.
 4   Q.  Therefore, if one wished to identify anything towards
 5       the top of Y7 it would be an easy exercise, either an
 6       image or a series or images to represent the top part of
 7       Y7?
 8   A.  Yes.
 9   Q.  Again, no doubt we will hear some explanation as to why
10       there were three sets of charting enlargements prepared,
11       but what we can tell is that one is capable of
12       identifying different parts of the image as one chooses
13       in that presentational exercise?
14   A.  Yes.
15   Q.  Have you personally ever used a charting enlargement
16       machine?
17   A.  No.
18   Q.  Was it anything that was ever discussed at the Training
19       Centre?
20   A.  No.  Can I just add that in the early '80s England and
21       Wales moved to a non-presentation system of provision of
22       evidence at court.  We no longer produced enlarged
23       charts of this type unless specifically required to do
24       so.
25   Q.  I think we heard some evidence possibly from Mr Kent
page  58
 1       about that but I take it the position was that the
 2       experts would prepare a report explaining how they had
 3       arrived at their conclusions?
 4   A.  Absolutely, yes.
 5   Q.  And, as you say, if anyone said, "We would really like
 6       to see the photographs how you came to this conclusion",
 7       then those would be readily made available?
 8   A.  Absolutely.
 9   Q.  Of course I take it an expert identifying differences in
10       a fingerprint would, if they were still prepared to come
11       to the conclusion it was a match between the latent and
12       the inked print, the expert would nonetheless disclose,
13       "There are differences but I can explain them as being
14       due to whatever"?
15   A.  Provided he or she felt able to explain them.
16   Q.  Can I go back to the report please just to conclude that
17       particular matter CO0227 and if we can flick through to
18       the page we stopped at.  Just pause there, please.
19           I think we were reading through the large paragraph
20       towards the top of the page, the first full paragraph,
21       and just to reiterate I think you indicate six lines in
22       towards the end of the middle of the line:
23           "Characteristics and features which a lay person
24       might reasonable be expected to note that are clearly in
25       disagreement have been removed by the reduction in size
page  59
 1       of the photographs."
 2           Can we take that as being literal, that a lay person
 3       might reasonable be expected to spot the differences?
 4   A.  Yes, certainly.
 5   Q.  To cut to the chase in this, is that the bifurcation
 6       pointing in the opposite direction as between the latent
 7       and the inked mark?
 8   A.  Yes.
 9   Q.  Are we able to discern any possible reason why a
10       fingerprint expert would, as it were, not mention these
11       apparent differences or possibly conceal them from a
12       presentation?
13   A.  I find it rather reprehensible that that appears to be
14       the situation.
15   Q.  Reading on with your conclusion you say at the bottom of
16       the page in the next paragraph:
17           "In conclusion the court exhibits referenced X92 and
18       X102 are abject in the extreme and would not have been
19       acceptable from a student at this centre.  Exhibit X105
20       fairs little better in that it also has been cropped
21       beyond reasonable levels removing characteristics and
22       features from above the core area of the scene mark, an
23       act we find indefensible.  Presentations of this type,
24       whilst not regularly produced in England and Wales, are
25       primarily a visual aid to clearly demonstrate to the
page  60
 1       court the identification process by the use of clear,
 2       sharply contrasting photographs which have been enlarged
 3       sufficiently to allay any doubts in a jury's mind as to
 4       the integrity of the oral evidence given by the expert.
 5       These presentations do not, in our opinion, even come
 6       close to the standard expected or required of a
 7       fingerprint expert.  There can be no excuse for such an
 8       exhibit when we ourselves were able to produce in
 9       July 2000 clear, contrasting photographs of scene mark
10       Y7 with no difficulty whatsoever.
11           "As to how such an erroneous identification been
12       made the only assumption we are able to draw is that
13       elimination identifications are not treated or
14       approached in the professional manner that the
15       Court(sic) Service and ultimately the courts are
16       entitled to expect with devastating consequence."
17           Strong words, Mr Sheppard.  You have had some
18       explanation about charted enlargements and so on and so
19       forth and the difficulties with the machine but against
20       a background of the ability to reproduce it in a
21       traditional sense, is there anything from these strong
22       words you retract or wish to modify?
23   A.  No.
24   Q.  One very short point of detail, I think we know in this
25       case there were 428 crime scene marks lifted but a
page  61
 1       number of these were deemed, no doubt perfectly
 2       reasonably, to be unsuitable for analysis, perhaps again
 3       a common feature, I take it, of crime scene
 4       investigation?
 5   A.  Yes.
 6   Q.  If it was suggested that there were 172 marks that were
 7       capable of analysis and all of these were analysed and
 8       eliminated to a 16-point standard, is that something
 9       that you would be surprised at, that it was capable of
10       elimination to the 16-point standard, 172?
11   A.  Perfectly feasible and acceptable, yes.
12   Q.  Now, I would like to look at another document, please,
13       about the way that the analysis took place of Y7.
14       Mr Moynihan put to you a sequence of events regarding
15       certain individuals who looked at it and the way things
16       happened.  But can we go to a document CO0005 at page 75
17       in the database and 68 of the report.
18           I think, in fact, if you go back just one page to
19       try to place this in context, just reading from the
20       bottom paragraph and this is a product of the Mackay
21       Robertson Inquiry, the sequence of events as they
22       understand it.  We can see at the bottom paragraph, 69:
23           "Witness Mackenzie is the only person, apart from
24       the four experts, who can shed light as to why an
25       elimination was signed by four experts as opposed to the
page  62
 1       normal two.  He states that Hugh Macpherson had told him
 2       the reason for this was because a police officer's
 3       fingerprints had been found.  Macpherson declined to
 4       comment on his reasons for this when interviewed by the
 5       Inquiry team.
 6           "Later that evening witness Dunbar was asked by
 7       Chief Inspector O'Neill to have other experts examine
 8       the print by way of a blind test, a procedure he again
 9       found unusual but nevertheless carried out.  He does not
10       recall where this request originated but believes it was
11       via witness Chief Inspector O'Neill.  In any event,
12       witness Dunbar set up a comparator and asked the on duty
13       experts to compare the marks, posing the question,
14       'Would you eliminate this mark?'"
15           If we pause for a moment to see the way the story is
16       developing, that the identification is made that it's
17       Shirley McKie's mark, she denies, says, "It can't be
18       mine.  I wasn't there".  They know it's a police
19       officer's and they are having to be sure about the
20       identification.  So it's against the background of
21       realising something pretty drastic may happen to Shirley
22       McKie if it turns out to be her fingerprint.
23   A.  Yes.
24   Q.  Now we have this question asked, according to this
25       investigation, "Would you eliminate this mark", appears
page  63
 1       to have been asked.  Now reading on:
 2           "Witness Bruce recalls being shown a mark and inked
 3       impression set up on a comparator in the main office.
 4       He examined the mark and found that it was very
 5       distorted around the top, which appeared to him to have
 6       been caused by movement.  As far as he can remember, he
 7       was able to find about eight points of comparison
 8       against the elimination.  His feeling at the time was
 9       that the mark was the same as the elimination, although
10       it was not sufficient for an identification for court
11       purposes.  He claims that although he would have
12       eliminated it because of the eight points of comparison
13       he did not regard this to be a sufficiency in respect of
14       an identification for court purposes."
15           Again, I think you indicated to Mr Moynihan earlier
16       that if you are going to eliminate you should do it in
17       the same standard as identification because today's
18       eliminated person may be tomorrow's prosecuted person;
19       is that right?
20   A.  Absolutely, yes.
21   Q.  So, again, I'm guessing that you would be uncomfortable
22       with the idea of a lower threshold being applied to an
23       elimination as opposed to an identification; is that
24       fair?
25   A.  Yes.
page  64
 1   Q.  So we have the witness Bruce has got eight but for
 2       elimination purposes.  The next is:
 3           "Witness Foley took part in the exercise and recalls
 4       spending 5 minutes looking at Y7 and finding ten points
 5       of comparison which was enough to eliminate same."
 6           Again, same comment I am anticipating.  You are
 7       looking a bit bemused and puzzled.
 8   A.  Yes, 5 minutes seems an incredibly short period of time
 9       to examine something of this nature.
10   Q.  Of course he is eliminating by identifying, if that's
11       the correct way of putting it.
12   A.  Mmm.
13   Q.  I take it if you were to look at a mark and look at a
14       latent and immediately see a difference you could say it
15       was definitely not that individual's.  You could do that
16       pretty quickly, couldn't you?
17   A.  Yes, quite possibly, yes.
18   Q.  Which is in contrast, I suppose, to somebody saying, "I
19       think this is that person's but I'm eliminating them
20       from the Inquiry".  You're really doing that kind of
21       positive identification and he seems to have done it
22       within 5 minutes and he's got something.
23   A.  Yes.
24   Q.  Then going on we can see:
25           "The witness Padden also recalls taking part in a
page  65
 1       similar exercise.  He felt it was a difficult mark that
 2       needed a greater amount of examination than the norm.
 3       He informed witness Dunbar he could not give a
 4       conclusion.  Witness Dunbar advised him he needed an
 5       answer there and then and the witness was not asked to
 6       view the mark again", and the author has put an
 7       exclamation mark at the end of that sentence.
 8   A.  Mmm.
 9   Q.  "Witness McLure recalls participating in a blind marking
10       exercise about that time but could not make a conclusion
11       as the mark she was viewing was a poor mark.  She
12       informed witness Dunbar that she would have to look at
13       the item through a magnifying glass and in stronger
14       light.  Witness Dunbar said that was fine and she was
15       not shown the mark again."
16           Again we have an exclamation mark at the end of it.
17   A.  Mmm.
18   Q.  Then you get to the next paragraph:
19           "Either that same evening, or more likely on the
20       morning of Tuesday 18th February witness, Chief
21       Inspector O'Neill, informed witness Ferry, the then
22       Chief Superintendent responsible for SCRO, of the nature
23       of the witness Superintendent John Thomson's telephone
24       call and resulting events.  Witness Ferry was of the
25       opinion that it would not be proper for witness Shirley
page  66
 1       McKie to view the comparison process and advised witness
 2       Thomson accordingly."
 3           You can see what appears to have been going on here
 4       appears to be a queue of people being asked to come up
 5       with some kind of identification with a view to almost
 6       peer reviewing, I suppose, the identification by
 7       Mr Macpherson first off, supported by others.  You
 8       understand what was going on here?
 9   A.  Yes.
10   Q.  Of course the question was, "Would you eliminate this
11       mark".
12   A.  Yes.
13   Q.  Do you have any comment about this idea of almost, I
14       suppose, it could be viewed as a committee being formed
15       to come up with views on the hoof?
16   A.  I personally deprecate that sort of action.
17   THE CHAIRMAN:  You need to know what the purpose was, don't
18       you?
19   A.  Absolutely, yes.
20   THE CHAIRMAN:  Do you know what the purpose was?
21   A.  No.  No idea.
22   THE CHAIRMAN:  So to deprecate it presumably you need to
23       know what was intended.
24   A.  Yes.  I wouldn't be prepared to take part in an exercise
25       of this sort without knowing some of the facts required.
page  67
 1   THE CHAIRMAN:  I think that would be so.
 2   A.  Absolutely.
 3   MR SMITH:  But against the background, of course, of this
 4       being plainly reviewed for the purposes of considering
 5       whether the mark Y7 was Shirley McKie's, do you have any
 6       comment just about the question that was being put,
 7       "Would you eliminate this mark"?  Is that a way you
 8       would approach it?
 9   A.  No, no.  If I was going to do something of this nature,
10       then the situation would be explained to them as far as
11       I thought suitable but no offer of suggested outcome
12       like elimination would be offered.  They would be asked
13       to view the mark and, "Please, let me have your opinions
14       in the fullness of time when you've had sufficient time
15       to scrutinise it".
16   Q.  I would like to look at another document please CO0032.
17       This bears to be a statement which is dated
18       20th November 2000 and judging by the date you would
19       presume this was given to Mr Bill Gilchrist, I think the
20       initials at the end of it, who was somebody at Crown
21       Office, I think.
22           Do you recall giving a statement to a Mr Gilchrist?
23       Do you remember that?
24   A.  I remember meeting Mr Gilchrist in Paisley, yes.
25   Q.  It does have written at the top of it, "Durham 20
page  68
 1       November 2000" but do you recall --
 2   A.  He might well have done but I really don't recollect
 3       that meeting.
 4   Q.  I would like to go through this with you and ask you
 5       some questions as to whether or not you adhere to any of
 6       the opinions in this.  Obviously, when someone takes a
 7       statement it may become a bit distorted, not that I am
 8       using that phrase in this particular matter, but we can
 9       see it indicates that you have examined the photograph
10       of fingerprint impression Y7 and it is initialled on the
11       back by a number of persons.  You go on to say or it
12       goes on to say here?
13         "I understand that the fingerprint impression was
14       identified by SCRO as that of the left thumb of Shirley
15       McKie.  I have compared the impression with the left
16       thumb impression of Shirley McKie from an elimination
17       fingerprint form.  I am satisfied that the fingerprint
18       was not made by the left thumb of Shirley McKie nor by
19       any of her other digit impressions."
20           Again, I think that is still your position, isn't
21       it?
22   A.  Mmm.
23   Q.  Going on:
24           "I am told that SCRO believed that this was a double
25       touch.  I consider that to be utterly remote.  It
page  69
 1       appears to me that this is a single touch with more
 2       pressure being applied to the top than to the bottom.
 3       It is a typical mark, not particularly difficult to
 4       interpret.  I found it relatively easy to say that this
 5       is not the fingerprint of Shirley McKie."
 6           I think we have covered most of that but this
 7       relative ease, do you maintain that position it was
 8       relatively easy to come to the conclusion it was not her
 9       fingerprint?
10   A.  With hindsight I don't think I would have used the word
11       "ease".
12   Q.  Or the word easy?
13   A.  No, I wouldn't have used that.
14   Q.  How would you place it then?  Was it a particularly
15       difficult mark?
16   A.  It was a difficult mark.  Yes, it certainly was.  It was
17       made more difficult by the situation that I was becoming
18       more and more aware of, which I wasn't in the initial
19       stages.  But, no, it was a difficult mark and we had
20       heard about the double touch synopsis and things of that
21       sort.  So it made you apply even greater emphasis on the
22       decisions you were making.
23   Q.  Can I ask what you mean by the situation you were
24       becoming more and more aware of?
25   A.  Within England and Wales there is a remarkable grapevine
page  70
 1       of information made available to fingerprint bureaux,
 2       second to none.  It would beat Sky News hands down and
 3       more and more information was coming out.  Little was
 4       recorded in the English press and television about the
 5       whole situation and as more people spoke with friends or
 6       colleagues or mates who had been working in Scotland or
 7       were on courses with them so more and more information
 8       came out that something totally remiss had occurred in
 9       Scotland.
10   Q.  Just going on now, I think you explain in the next
11       paragraph something of the problem with the left and
12       right thumb and you explained that.  You go on to say in
13       the next paragraph -- it's not you saying it, it's the
14       statement saying it:
15           "I accept that there is a slight interference line
16       running across the mark."
17           Is that what appears to be the brush stroke sort of
18       application to the mark?  Is that what's being described
19       there?
20   A.  It wasn't described to me in any way other than we were
21       aware that the mark had been defaced to some -- you
22       know, to an extent.  But that didn't affect my or my
23       colleagues' judgments at the time.
24   Q.  I think you go on to explain that.  You say:
25           "However, this line does not interrupt the ridge
page  71
 1       flow and, therefore, does not indicate to me that there
 2       was more than one touch.  This line could have been
 3       caused by a defect on the surface or by the way in which
 4       the powder was applied.  I accept, however, that it was
 5       not unreasonable to examine the lower section of the
 6       mark.  This is the clearest part of impression and there
 7       is an easily recognisable starting point in that there
 8       is a core pattern at the bottom left-hand corner of the
 9       mark."
10           I don't think we've heard yet, a core pattern, is
11       that really the centre of the fingerprint?
12   A.  Yes, centre of the patterned area.
13   Q.  Almost everything radiates out from that, in some
14       respects, I realise we are dealing with a very basic
15       approach here?
16   A.  Yes.  It's a feature that is found in most fingerprint
17       patterns and the eye is easily drawn to that centre or
18       core and one would invariably work from there outwards.
19   Q.  So when one can use identified core, give or take one or
20       two ridges, sometimes it might be difficult, but then
21       you use that as your reference point for counting from
22       the core to see whether you reach a bifurcation in three
23       ridges as opposed to two in another mark?
24   A.  Yes.
25   Q.  But just going on you say at the bottom of that page:
page  72
 1           "This is the most obvious feature which jumps out at
 2       you soon you look at the photograph.  Any fingerprint
 3       expert would undoubtedly start at this point."
 4           You then go on:
 5           "What you immediately see is a bifurcation ..." and
 6       you give some detail I don't wish to go through but you
 7       do a ridge count there, almost to say what the features
 8       are when you move through the analysis.  Is that
 9       correct?
10   A.  Yes.
11   Q.  You say in the second full paragraph on that page, the
12       next paragraph:
13           "The other obvious discrepancy concerns the core.
14       There is no lake at the core of Shirley McKie's thumb
15       print and yet there is clearly a lake at the core of the
16       mark."
17           So this is one difference you have identified in the
18       lower portion of the prints; is that right?
19   A.  Yes.
20   Q.  Then going on to the next paragraph:
21           "Even allowing for the fact that this was
22       originally an elimination I find it extremely difficult
23       to understand how Fingerprint Officers could have made
24       such mistakes."
25           You say:
page  73
 1           "This was either gross incompetence or pure
 2       fabrication.  If the fingerprint experts had to go back
 3       and look at this again then I find it even more
 4       difficult to understand how they could have continued to
 5       get it wrong.  I suppose you can start seeing what you
 6       want to see but I still find it difficult to understand
 7       how they could make such fundamental errors."
 8           Pausing there for the moment, is there anything in
 9       that paragraph from anything you have heard you want to
10       modify or retract?
11   A.  No.
12   Q.  I suppose what is being said here is that at the first
13       stage one looks at it comes to perhaps a hasty
14       conclusion, maybe either gross incompetence or pure
15       fabrication, but when you are alerted to the fact there
16       is a challenge here you need to go back and look at it,
17       are you saying that any Fingerprint Officer revisiting
18       the question would be inevitably drawn to the conclusion
19       that there was no match between the two.  Is that what
20       you are saying?
21   A.  Provided they approached it in that analytical method of
22       analysing, comparing, evaluating in that you look and
23       compare and analyse the scene mark.  You disregard the
24       fingerprint at that point in time.  If you do it the
25       other way round you look at the actual fingerprint form
page  74
 1       and, you know, in your mind's eye produce a series of
 2       characteristics and their position then, yes, the brain
 3       will confuse you into imagining that you can see them in
 4       the Scene of Crime mark.
 5   Q.  But you do say in that paragraph:
 6           "You can see what you want to see but I still find
 7       it difficult to understand how there could be such
 8       fundamental errors."
 9   A.  Yes.
10   Q.  I take it you do still find, even giving that slack of
11       convincing yourselves that there are points there that
12       are not, is that --
13   A.  Yes, my opinion really hasn't changed.
14   Q.  Can I ask you, to expand on this particular matter, this
15       question: of course we're not dealing with just one
16       individual who is trying to convince him or herself
17       about the match being correct, we seem to have certainly
18       four, possibly more, who are all, one would assume,
19       independently coming to this erroneous conclusion after
20       revisiting.
21           Do you have any comment about the possibility of a
22       number of individuals independently convincing
23       themselves that points are there that shouldn't be
24       there?
25   A.  I find it rather incredible even now that that sort of
page  75
 1       situation could arise without the advent of peer
 2       pressure and other things.
 3   MR SMITH:  Sir, I am conscious of the time.  I was going to
 4       move on to a slightly different matter.  I know that Mr
 5       Moynihan is anxious to --
 6   THE CHAIRMAN:  That is good of you to mention that.
 7       Obviously, the evidence of this witness is very
 8       important and I don't want it to be rushed.  I gather
 9       you have been asked if you would be good enough to allow
10       us to interpose the evidence of another witness that is
11       only available today.
12   A.  Yes.
13   THE CHAIRMAN:  I am sorry to ask you to do this but, as I
14       say, I don't want to rush your evidence but if Mr
15       Rennison is only available today then I think if you
16       wouldn't mind if we interpose his evidence and we will
17       resume yours, I hope, before too long.
18                     ANDREW RENNISON (sworn)
19   THE CHAIRMAN:  Your full name?
20   A.  Andrew Rennison.
21   THE CHAIRMAN:  Take a seat, please.
22                     Examined by MR MOYNIHAN
23   Q.  Good afternoon, Mr Rennison.  You have provided for the
24       Inquiry a report which for us has a reference EB0001.
25       It is your report dated 30th April 2009.
page  76
 1   A.  That's correct, sir, yes.
 2   Q.  Do you have a copy of that?
 3   A.  I do.
 4   Q.  In fact, I think this is written by yourself so you are
 5       quite content with the contents of it?
 6   A.  Yes, it is, yes.
 7   Q.  Because it's a background report, could you explain to
 8       us, please, what your own background is prior to your
 9       appointment as the Forensic Science Regulator?
10   A.  Yes, sir.  I did 30 years in the Police Service,
11       retiring as a senior detective, during which time I had
12       some time managing forensic science support units.  Then
13       I spent two years regulating the gambling industry and
14       then I applied for this role when they were looking for
15       someone who understood criminal justice systems,
16       understood regulatory function and had some
17       understanding of science so I was then offered a role as
18       Forensic Science Regulator for England and Wales.
19   Q.  In fact, if we are very short about it, you are
20       appointed by the Home Office?
21   A.  Yes, it's a public appointment by the Home Secretary.
22   Q.  But you don't have a statutory base?
23   A.  No, there's no statutory basis and that is something I
24       am reviewing at the moment.
25   Q.  Indeed though we will talk to you about the regulatory
page  77
 1       background, in fact you have no regulatory powers as
 2       such?
 3   A.  I have no powers as such.
 4   Q.  What I want to concentrate on -- and I am very grateful
 5       to you for agreeing to come to speak to us today -- I
 6       want to talk to you about the regulatory framework
 7       within which fingerprints operate.
 8           First of all, your jurisdiction extends primarily to
 9       England and Wales; is that correct?
10   A.  That is correct, sir, but it is abundantly obvious to
11       everybody that it would be pointless just setting
12       quality standards for forensic science for England and
13       Wales alone so from the outset we reached an agreement
14       with the authorities in Scotland and in Northern Ireland
15       that we should co-operate on this and that the standards
16       should actually be UK-wide standards.
17   Q.  In fact, you note -- and forgive me, I do tend to forget
18       about Northern Ireland as well but we will cover that.
19       You do note you have a Forensic Science Advisory Council
20       that advises you and one of those members of that
21       Council is Mr Tom Nelson who is the representative of
22       the Scottish Police Services Authority?
23   A.  That's correct, sir.  He has been on the Council from
24       the very beginning.
25   Q.  Do you also have representatives from Northern Ireland?
page  78
 1   A.  Yes, I have Stan Brown who's the Director of the
 2       Forensic Science Northern Ireland laboratory.
 3   Q.  You indicate to us also that you are in contact as far
 4       as Scotland is concerned with representatives of the
 5       Scottish Government in relation to your projects?
 6   A.  Yes, I've had meetings with the Scottish Government and
 7       I liaise with Scottish officials quite regularly.  In
 8       fact, I was here yesterday visiting the Dundee
 9       laboratory.
10   Q.  Just to update matters so that we see that, in fact,
11       these matters indeed have an international perspective,
12       since you wrote your report I understand that there has
13       been a development at the European level in relation to
14       the field of regulation of forensic science?
15   A.  That's correct, yes.  Would you like me to explain?
16   Q.  Yes, please.
17   A.  During the early part of my work, sir, I did make quite
18       an effort to liaise with European colleagues because
19       it's all well and good setting standards across the UK
20       but there is a European perspective to this as well and
21       I engaged quite early on with a network called the
22       European Network of Forensic Science Institutes, led --
23       the Quality and Competence Committee of that led by
24       Christina Bertler from the Swedish Laboratory and I met
25       with her and her director several months ago when I flew
page  79
 1       out to Sweden to explain the standards model I was
 2       proposing and to see what the ENFSI view was on that.
 3           At that point they disclosed to me that Sweden was
 4       taking the Chair of the European -- sorry, was taking
 5       the Presidency of the European Union from 1st July so
 6       they now have that post but they were then proposing or
 7       their Ministry of Justice was proposing an initiative
 8       through the European Union for mandatory accreditation
 9       of DNA and fingerprint forensic activity, which I found
10       interesting because it would actually lead to some
11       statutory underpinning of the model that I was
12       proposing.
13           Some months later, they then delivered a full paper
14       on this, a full initiative, and they hosted a conference
15       in Stockholm about four or five weeks ago which I went
16       to.  And they are now proposing through their Presidency
17       of the Union that there should be EU regulations
18       mandating the accreditation of fingerprint laboratory
19       activities, the term they use.  My understanding is that
20       that covers all analysis and interpretation of
21       fingerprint evidence and that it should be operating
22       within the international standard, which is the ISO17025
23       accreditation standard and I will just finish by saying
24       that ISO17025 is the base standard to my model.
25   Q.  So we understand then that there is currently
page  80
 1       consideration being given at the European level to
 2       mandatory requirements to apply with ISO17025?
 3   A.  That's correct.  The matter is now up for formal
 4       discussion at the first meeting of the Police
 5       Co-operation Working Group tomorrow and I am preparing
 6       an explanation memorandum for the UK authorities, for UK
 7       governments, to seek their views on this.  But I should
 8       point out also that at the Stockholm conference I did
 9       question whether this was just the start of a longer
10       term plan and the Swedes are now backed by the Spanish
11       who have the Presidency from 1st January.  They did
12       concede their long-term plan is for all forensic
13       activity, right through from the crime scene through to
14       the presentation of evidence in court, should be within
15       an accreditation framework which is exactly the model
16       I'm proposing for the UK.
17   Q.  If I can pick that up and we will develop it using, to
18       some extent, your report which is -- obviously things
19       have moved on rather rapidly since you wrote your
20       report.  If I want to look at regulation, I might look
21       at regulation at three levels, first of all, at the
22       institutional level, that's the organisations, the labs
23       that carry out the work; secondly, I could look at
24       regulation of the individual practitioners who practise
25       in the field; and then, thirdly, I would look at the
page  81
 1       regulation of the techniques that they apply in their
 2       work.
 3   A.  Yes.
 4   Q.  Do you recognise a distinction to each of these three
 5       matters in the field of regulation?
 6   A.  Very much so, sir.  They can all be independently
 7       assessed but of course they are massively interlinked
 8       and I've always been very nervous about treating them
 9       separately but they are issues that have to be
10       considered and I've always taken the view that forensic
11       science operates predominantly within an organisational
12       culture so take the Scottish Police Services Authority,
13       for example, and their forensic work.  The organisation
14       creates a culture, a quality culture, which is relevant
15       to forensic science so that has to be part of the
16       assessment.  I've always taken the view that individual
17       practitioner competence is relevant and very, very
18       necessary because albeit forensic practitioners operate
19       generally within this organisational culture, the
20       product of their work is very much up to their
21       individual competence, their training, their
22       recruitment, their development, et cetera.
23           Of course, the courts might justifiably expect that
24       the methods they employ are valid and scientifically
25       valid and fit for purpose which has been commented on in
page  82
 1       recent court cases and is the subject of a review by
 2       the English and Welsh Law Commission.
 3           So all three matters have to be considered but they
 4       have to be considered jointly but separately, if that
 5       makes sense.
 6   Q.  We will progress through those layers.  In fairness,
 7       given priorities on your time, may it be fair to say
 8       that so far as the testing at the lower level of this,
 9       namely the methodology of fingerprints, you yourself
10       have not yet carried out much detailed work in that
11       area?
12   A.  No, I haven't.  That's correct.
13   Q.  That's why I want to just look with you at the general
14       framework and then we will be conscious of that.
15           First of all, if I begin at the top, organisational,
16       discuss first; then practitioner, second; and then we
17       will come last to that question of the methodologies
18       employed in fingerprints.
19           First of all, in looking at the organisational
20       level, is that the level at which the ISO17025 operates
21       or does it cascade down through some of these other
22       levels?
23   A.  It covers all three levels and that's the attractive
24       point about this.  It holds the senior management in an
25       organisation accountable for quality, it holds the
page  83
 1       practitioners accountable and it also demands proper
 2       validation of the methods.  So it does cover all three.
 3   Q.  Just so that we're aware of another matter in which
 4       things have moved on, in paragraph 38 of your report,
 5       you indicate that ISO17025 accreditation had been sought
 6       for fingerprint development work and in March 2009 there
 7       were applications outstanding?
 8   A.  Yes.
 9   Q.  Is it the case that the Forensic Science Service in
10       England has since achieved ISO17025 accreditation for
11       its fingerprint work?
12   A.  They achieved that prior to March 2009 but they are the
13       one organisation that is accredited by UKAS for
14       fingerprint interpretation work.
15   Q.  So, accordingly, it would be possible within the United
16       Kingdom as matters currently stand for a Fingerprint
17       Service to achieve ISO17025 accreditation?
18   A.  Yes, indeed.
19   Q.  So there is nothing inherently flawed in fingerprint
20       approaches today that would mean that it would struggle
21       with accreditation?
22   A.  At a generic level that's correct but UKAS of course
23       would look how the methods were operating within each
24       organisation so that the organisation itself would have
25       to be operating the method -- UKAS would expect each
page  84
 1       organisation to be operating methods appropriately and
 2       that are valid within that organisation.  So at one
 3       level, yes, it is appropriate that UKAS, quite rightly,
 4       reserves the right to see how things are operating
 5       within an organisation.
 6   Q.  If we are regard ISO9001, the first standard you
 7       mentioned, as having been embraced within ISO170205, I
 8       take it that ISO170205 is the standard that you regard
 9       as being more directly applicable to fingerprint
10       services?
11   A.  Yes.  Certainly in the first iteration of this work,
12       17025 is entirely appropriate.  We are doing some work
13       with another standard which is ISO17020, which is much
14       more appropriate to inspection bodies rather than the
15       analytical laboratories.  In due course I think there
16       will be more room for 17020 to be applied to fingerprint
17       work but that's a year or two down the road but we do
18       know that 17025 -- and there are overlaps between 17020
19       and 17025, there's a lot of flexibility there.
20   Q.  In relation to 17025, to begin there, without asking you
21       to give an entire discourse on the contents of the
22       standard, can you indicate what the principal features
23       are of the accreditation process under 17025, what the
24       principal quality assurance hurdles are?
25   A.  I'm not quite sure what you mean, but one answer is that
page  85
 1       the accreditation is through the independent observation
 2       of the United Kingdom Accreditation Service.  They
 3       employ trained assessors and the start of the
 4       accreditation process is for the assessors to review the
 5       operating and quality manuals of the organisation.  So
 6       it's a remote paper-based review.
 7           Having understood those, they then go out to the
 8       organisation and it might be different sites or just one
 9       site and they will see whether those procedures are
10       working in practice because a big problem can be it's
11       all well and good having very good operating procedures
12       but are you working to them and are they delivering the
13       results expected?  So they will go out and undertake
14       bench observations and a series of observations to
15       assess that.
16           You might then or you might not achieve your
17       accreditation.  If you do achieve your accreditation,
18       then within the next six months they will return and
19       they will undertake the first annual surveillance visit
20       to make sure that matters are properly embedded in and
21       are continuing to deliver and from then on it's
22       an annual surveillance visit.
23   Q.  Does the accreditation process require that there be
24       prescribed management procedures, first of all?
25   A.  Yes.  They will expect the organisation to have clear
page  86
 1       quality manuals that will set out those procedures,
 2       including, for example, the audit processes, how they
 3       manage those, how they manage the results of the audits.
 4       It will require them to have clear operating procedures
 5       for all their methods.  It will require evidence of the
 6       validation of those methods, have they been properly
 7       validated, where's the documentation for that.  They
 8       will demand to see recruitment and training records of
 9       the staff.  They will demand to see -- to observe staff
10       at their work bench, undertaking work, to see that they
11       are complying with their training and their operating
12       procedures.  They will demand to see a random sample of
13       different case files and if, for example, it is a DNA
14       case they would have a DNA technical assessor with them
15       who will go through these files with a fine toothcomb
16       and check the operating procedures are complied with and
17       the interpretation at the end of it is appropriate.
18           So a typical accreditation of a laboratory with a
19       site visit would be two or three days and it's a
20       detailed examination against a whole list of criteria,
21       which includes, going back to your point, sir, the
22       management systems and are they working.
23   Q.  As you say, they will take them with a specialist
24       appropriate to the particular area that they are
25       auditing?
page  87
 1   A.  Yes.  So they will take with them a lead assessor who
 2       manages the process but in a typical laboratory visit
 3       there will be a team of half a dozen technical assessors
 4       alongside as well.
 5   Q.  Then so far as the practitioners are concerned, plainly
 6       they would look at the qualifications and training of
 7       practitioners?
 8   A.  Yes.
 9   Q.  And would the audit and the assessors be checking that,
10       in practice, the practitioners do, indeed, follow
11       through the management guidance?
12   A.  Yes, and they will select at random a number of those
13       practitioners and they will interview them and they will
14       observe them at work.
15   Q.  Would the accreditation process itself prescribe any
16       qualifications or training or is it simply a question of
17       supervision of what already exists?
18   A.  They don't prescribe that.  That's for me to set those
19       sort of standards and at the moment -- for the
20       organisations to set those questions but I am sure later
21       on you will ask me the question about what gaps there
22       are within the ISO17025 process and there are some gaps
23       around that which I am now plugging through additional
24       standards I am putting into place and I'm starting to
25       prescribe some of that.
page  88
 1   Q.  At the third tier, the methodology involved -- if I'm
 2       quite specific, we're talking about fingerprints rather
 3       than DNA -- what would the auditing process involve at
 4       the accreditation stage relating to the methodologies
 5       employed in a fingerprint examination?
 6   A.  I think there are two areas there.  In the fingerprint
 7       world there are the development methodologies, so the
 8       enhancement of the prints, so the raising of the prints
 9       in the first place, the powder methods, the glue
10       cabinets, the anhydrant methods, et cetera.  There would
11       have to be an assessment of the validation of those
12       techniques and the second area is the interpretation of
13       the results, the work by the experts, which is the
14       subjective arena and there has to be some assessment of
15       the processes around that to see that the experts are
16       experts and that their evidence can be relied on.
17           In the subjective areas that tends to be more
18       difficult than the pure sciences.  So, for example, the
19       delivery of a DNA profile is a different methodology,
20       it's done with a very exact science and you can see a
21       printout which gives you very clear outcome but that's
22       not the same when you're dealing with comparison of
23       marks where it's a subjective opinion and the same
24       applies to finger-marks, tool marks, tyre marks, shoe
25       marks so different issues apply and you are relying much
page  89
 1       more on professional judgment, which is more difficult
 2       to assess.
 3   Q.  So far as ISO17025 -- and this may be where we encounter
 4       a gap -- to what extent are they able to apply objective
 5       standards to what, as you have said for fingerprints and
 6       other marks is essentially interpretation, a subjective
 7       skill?
 8   A.  You can apply standards around, obviously, the
 9       recruitment and training and the decision-making about
10       whether somebody's an expert or not.  You can apply
11       standards around ongoing proficiency testing and that
12       can include open trials, blind trials ... far easier
13       than that is ongoing programme of dip sampling of an
14       expert's work by other experts to make sure they have
15       reached the right conclusions.  So you can put in place
16       a framework that constantly assesses that person's, that
17       individual's ability as an expert, assessed by other
18       experts and you can, if you want to, through your blind
19       trials -- I'm sorry, your declared trials -- introduce
20       tests where you know absolutely categorically the
21       original source of that fingerprint so you really can
22       assess whether somebody is able to reach the right
23       conclusion.
24   Q.  You mentioned dip sampling.
25   A.  Yes.
page  90
 1   Q.  Is that a feature of 17025 accreditation for
 2       fingerprint services?
 3   A.  It should be a feature of the quality manual within
 4       an organisation that is seeking 17025, they should put
 5       in place, in my view, a programme of dip sampling and
 6       checking of work through that.
 7   Q.  I'd asked about the Forensic Science Service in England
 8       and Wales having achieved accreditation, simply to ask
 9       you you did confirm that fingerprint services are
10       capable of satisfying the requirements of 17025.
11           So far as SPSA itself is concerned are you aware
12       that they are applying for accreditation under 17025?
13   A.  I know they have applied and it's working it's way
14       through the system.  I have to say, I think, that the
15       Scottish Police Services Authority is leading the way in
16       the UK on this.  I was questioning them in Dundee
17       yesterday on their approach to this and I'm pleased to
18       say they have the application -- they are also seeking
19       accreditation for their crime scene investigation work,
20       which overlaps significantly with the fingerprint work
21       because, of course, fingerprints are all identified
22       originally at the crime scene.  So it is pleasing to see
23       standards put in place around that as well.
24   Q.  What would 17020 add to 17025, again rather than
25       generically with particular reference to fingerprint
page  91
 1       services?
 2   A.  17020 is designed more for, as I said earlier,
 3       inspection bodies and it is much more appropriate for a
 4       function that employs professional judgment and that's
 5       where I think it would allow us to be more sophisticated
 6       in the future in the fingerprint arena.  It's
 7       particularly appropriate for the crime scene
 8       investigation.  So the model I have developed is one
 9       where we have ISO17025 at the start of the progress
10       where is the typical crime scene investigation, molding
11       through to ISO17025 once you reach the laboratory
12       function because a lot of crime scene work is based on
13       professional judgment at the crime scene.
14   Q.  Again, forgive me if I may be taking it too far, 17025
15       you have said would have manuals and management
16       requirements in relation to competence assessment of the
17       practitioners, perhaps standardised tests to check their
18       competence because there are known results that the
19       individuals are being assessed against, you would also
20       have dip sampling of their work periodically.
21   A.  Yes.
22   Q.  What would you expect 17020 to add to that regime
23       specifically in relation to fingerprints?
24   A.  Probably very little but it would add more flexibility
25       around the use of professional judgment, which is
page  92
 1       difficult to explain but we have to look at the
 2       sophistication around that.  Would you mind, sir, if I
 3       explain how the model is developing?
 4   THE CHAIRMAN:  No, please.
 5   A.  What we've identified is that at the generic level these
 6       standards are fine for forensic science but they were
 7       never written for the forensic science context.  So
 8       what's always bothered me and does bother me is that you
 9       go through some sort of mental contortions to make them
10       fit the forensic context.  And one of the early pieces
11       of work I had done was a risk assessment of that and a
12       full comparison across the standards, being ISO9001 is
13       the quality management framework, the higher level or
14       the lower level standard, 17020 and 17025 to identify
15       exactly where they overlap -- and there is considerable
16       overlap -- but more importantly to identify where the
17       gaps are for the forensic context and there were a
18       number of gaps which I have then filled with a set of
19       standards that I have published which really do mould
20       9001, 17020, 17025 into what I am calling an
21       industry-specific standard for UK forensic science,
22       which might in due course be badged as a British
23       Standard but at the moment it holds the title of a
24       publicly available specification, which in the British
25       Standard hierarchy is close to a British Standard but
page  93
 1       you have much more flexibility.
 2           I have floated that.  I have published that for
 3       consultation and I have suggested that should be the
 4       standard we work to and we are now going through that
 5       decision-making process.  But I was always very aware of
 6       the gaps left by 17025 and 17020 and perhaps I can give
 7       an example or two.
 8   MR MOYNIHAN:  Yes, please.
 9   A.  Less so in Scotland but in England and Wales we have a
10       commercial market for the provision of forensic science
11       and within 17025 and 17020 there was no requirement to
12       report your quality failings to the customer or to the
13       regulator so we put that in as a requirement because I
14       want to develop a very open quality culture where people
15       are encouraged to report their failures so you can
16       manage them and you can improve the systems.  So we've
17       put in requirements around that.
18           I was also very happy that ISO17025 did include a
19       good deal of requirements around practitioner competence
20       and that was off the back of an additional supplementary
21       document published by an organisation called the
22       International Laboratory Accreditation Co-operation, but
23       I thought we could do better so I put in a requirement
24       for all forensic practitioners and all organisations to
25       embed the National Occupational Standards for Forensic
page  94
 1       Science developed by Skills for Justice which I think
 2       will significantly enhance the competency element as
 3       well.
 4           17025 included requirements around validation of
 5       methods.  We have expanded that and we've put a much
 6       more detailed requirement in there which makes it very
 7       clear what we mean by validation and what is expected of
 8       people and the list goes on.
 9   Q.  In relation to gaps, as you have said in your report,
10       when you are addressing a particular discipline, do you
11       put together a group of specialists --
12   A.  Yes.
13   Q.  -- to advise you not just what the theoretical gaps are
14       in the standard but what the specific gaps are that
15       require to be addressed?
16   A.  Yes and forgive me, sir, that's the second part of my
17       methodology I should have explained.
18           It's all well and good having standards at the level
19       that I've published (and I call that the generic level)
20       and that does cover the vast majority of forensic
21       science activity.  But we then need to drill down to the
22       detail of different forensic disciplines.  We've done
23       some analysis around this and there are, we think, 60 to
24       65 different forensic disciplines that require some
25       finessing of the standards for that particular
page  95
 1       discipline.
 2           For example, an area that I always considered --
 3       well, I do consider to be high risk at the moment is one
 4       of digital or e-forensics.  It's an area that's used in
 5       actually most investigations nowadays, the analysis of
 6       telephone data or computer data.  But all of that is
 7       done in the absence of any standards framework at all.
 8           So we have already pulled together a specialist
 9       group to look at the additional standards required for
10       digital forensics and we have that work almost complete.
11       I'm doing the same with crime scene investigation, I'm
12       doing the same with DNA technology.
13           So I've now put in place a programme of work over
14       the next two years to complete that additional work of
15       60/65-odd appendices, which is such an ambitious
16       programme of work, and one of those will
17       be fingerprints, properly broken down into fingerprint
18       development work and, as a separate discipline, the
19       interpretation and presentation of results.
20           But also, sir, one of the gaps in ISO17025 -- I
21       think a gap -- is proper standards around the
22       interpretation and presentation of science evidence to
23       the courts.  So I'm just in the process now of creating
24       a specialist group of experts to advise on that with a
25       senior judge, members of the Bar Council, statisticians
page  96
 1       nominated by the Royal Statistical Society and others to
 2       look at how we can best present this evidence to the
 3       courts in a way that's useful to the courts and doesn't
 4       confuse the situation but also gets across some of the
 5       complexities of the science involved.
 6           So, yes, my methodology is to pull together groups
 7       of specialists where I need them who advise me, because
 8       I'm not qualified to write these standards but I know
 9       lots of people who are and they are always wiling to --
10   THE CHAIRMAN:  Can I just ask you one thing about that.  In
11       establishing standards, it may be that research needs to
12       be done to arrive at a standard and certainly the
13       indications are that it mat be necessary in this
14       particular field.  Is that something that you envisage?
15   A.  It is and where there are research needs, we will
16       identify them and we'll make a case for that.
17           But I have some concerns in that area.  Research in
18       forensic science at the moment is not driven through any
19       coherent strategy or proper oversight and I have made
20       representations to the Home Office about this and I
21       continue to push this matter because it's not an area
22       that's particularly well-funded at the moment.  However,
23       my view is that if we can achieve some proper strategic
24       thinking here we could actually make very, very
25       persuasive arguments for that research to be funded
page  97
 1       through the Research Councils and we are pursuing that
 2       avenue at the moment.
 3           Excuse me if I sort of digress slightly here, but
 4       one of the areas that does concern me is this absence of
 5       any proper strategic thinking for UK forensic science
 6       and I have written to the Home Office about this and I
 7       have taken the matter up with the Scottish authorities
 8       and Northern Irish authorities and I think we need to --
 9       we are beginning to formulate a strategic oversight
10       board that can address issues like research, can address
11       issues like Government funding, can pull in the
12       academics, can pull in the commercial providers, can
13       pool these resources and talents into the areas where
14       it's most needed and I think equally can direct where
15       that research is needed, perhaps through my office.
16   MR MOYNIHAN:  You did quite consciously and deliberately use
17       when you were talking about fingerprints as one of the
18       areas you would look at the future tense that you "will"
19       at.
20   A.  Yes.
21   Q.  So it's a matter that remains for the future for you.
22   A.  It does.
23   Q.  Nonetheless, based on your own experience -- and please
24       feel free if you have not yet done enough work to answer
25       this -- are there any, as you are just now, issues that
page  98
 1       you would see in relation to Fingerprint Service work
 2       that require attention and may benefit from research or
 3       further consideration?
 4   A.  Yes.  I was able to discuss this a week ago on Monday
 5       with a room full of experts that I pulled together with
 6       some help from Leeds Law School.  So we had academics
 7       and forensic science experts in a session we hosted at
 8       the Criminal Cases Review Commission for a day to look
 9       at where perhaps we might be vulnerable in terms of UK
10       forensic science, based on actually a recent report from
11       the United States, and the conclusion that group reached
12       it that's in the subjective subjects, in areas where
13       you're relying on subjective expertise to interpret
14       evidence, that we need to do more work and we need more
15       research to underpin the interpretation models.  It's a
16       piece of work I will be giving my interpretation group
17       to look at, but it's a piece of work I think needs some
18       work as well and to help develop though interpretation
19       models so that it can work within -- you know, I want
20       models of interpretation that work within this overall
21       quality standards framework so that where there are
22       risks, you know -- and subjective opinion is sometimes
23       not as clear as some of the other sciences we use -- but
24       where there are risks that it's within a very clear
25       framework that manages those risks and according to an
page  99
 1       interpretation model that also helps manage those risks.
 2   Q.  Again forgive me for this very simplistic approach.  In
 3       looking at something that is a subjective judgment, what
 4       you require some guidance on is what the risk factors
 5       actually are.  You begin by identifying the risk factors
 6       and then you can design quality procedures to guard
 7       against those risks?
 8   A.  That's one way of addressing it certainly.  I think we
 9       need to be clearer on how the decision-making processes
10       work.  We need to be clearer on what is influencing some
11       of these expert decisions.  We need to pick up issues
12       that have been related as risks around things like
13       contextual bias.  You know, the whole research field
14       around decision-making I think is crucially important
15       here and it's perhaps underutilised.
16           So, yes, I think there's got to be some more
17       research underpinning better interpretation models that
18       allow professionals room to use their professional
19       judgment, but within a very clear framework that manages
20       those risks.
21   Q.  In fact, if I pick up just so that I'm clear about the
22       position, in paragraph 69 of your report and 70, this
23       essentially covers what we've just been discussing, that
24       you will have appendices to provide detail within the
25       general regulatory framework put together with a field
page 100
 1       of experts, as you say, as of March a very elementary
 2       start you have made with some visits.
 3   A.  Yes.
 4   Q.  But then in paragraph 70 you say you do have initial
 5       concerns about the subjective nature of fingerprint
 6       interpretation and the absence of coherent standards
 7       framework in place to manage this, and you contrast it
 8       with DNA?
 9   A.  Yes.
10   Q.  Is there anything you would like to add to illustrate or
11       indeed to convey to us what the concerns are that you
12       have?
13   A.  Well, my concerns are that the interpretation models
14       that should be in place aren't in place for that.  I
15       think, first of all, we need to have a proper standards
16       framework in place and then we need to drill down to the
17       detail needed for fingerprint methodology.  I would like
18       to see a much clearer framework there for the
19       interpretation and presentation of fingerprint evidence.
20       That's work that I will give to both the interpretation
21       specialist group to do and, in due course, a fingerprint
22       group that I will develop.
23           But it also comes back to my earlier answer around
24       having the same concerns with the other subjective
25       sciences such as tool marks, ballistics marks or shoe
page 101
 1       marks, et cetera.  It equally applies.  I think we just
 2       need to be much clearer around the environment that
 3       professional judgment is employed in and what the
 4       controls are in place for that.  I don't have the full
 5       answers for that yet but that is work that is certainly,
 6       I think, rising up the agenda.
 7   Q.  I take the point you just mentioned.  I keep saying
 8       "fingerprints" and you are seeing it as just one of a
 9       broader range of subjective judgments and you are
10       calling it more the "interpretation of marks" area.
11   A.  Yes.
12   Q.  So perhaps I will be conscious of what I am saying is
13       simply an illustrative example obviously from our
14       perspective.
15   A.  Of course.
16   Q.  But if I'm looking at this to try to comprehend the
17       questions -- and I appreciate you say there are no
18       answers -- you were asked just to take advantage of the
19       time while you were waiting this morning to look at an
20       excerpt from the evidence we had yesterday of Mr Kent.
21   A.  Yes.
22   Q.  Now, plainly Mr Kent is primarily speaking to 1997 when
23       the events in question here occurred.  He retired, I
24       believe, in 2004 but plainly remains active in the
25       field.  What I was wanting to do was just to look at
page 102
 1       some of the concerns he expressed yesterday to see
 2       whether, from your perspective as the regulator, these
 3       are the matters that remain on the menu to be looked at
 4       in the future when time permits.
 5           Now, the passage that I gave you to look at was
 6       yesterday and at least in my manuscript notes, and you
 7       will confirm just for me because you have the
 8       typescript, it runs broadly from pages 48 to 57?
 9   A.  Yes.
10   Q.  Is that correct?
11   A.  Yes.
12   Q.  My summary is that Mr Kent raised issues under three
13       broad topics: first of all, statistical work (and you
14       have mentioned statisticians) on the recurrence of
15       particular characteristics in fingerprints and indeed
16       other marks across the population as a whole.
17           Is that an area of research that you feel merits
18       consideration?
19   A.  Yes, I think it does.  I'm not sure how much of that is
20       being done by the Forensic Science Service at the moment
21       through some of their probabilistic studies, but it is
22       clearly an area I think we should shine more light on
23       certainly.
24   Q.  We will come to the probabilistic work in a minute.  Why
25       is it from your perspective that you see merit in such
page 103
 1       research?
 2   A.  Because I think it could give a more statistical basis
 3       to some of the opinions that are given.  I think the
 4       whole thing interlinks with this probabilistic approach
 5       because that does give the expert's evidence, it
 6       underpins it by some pretty robust scientific
 7       methodology and some empirical evidence and I think
 8       where that approach is available, we should always adopt
 9       it.  So if you can underpin your opinion with empirical
10       or on an empirical basis, then we've got to go for that
11       as often as possible if that's achievable.  But you
12       don't know that until you start the research.
13   Q.  If I could just look at it just now and stopping there,
14       Mr Kent in another passage -- which may not be in the
15       passage I have given you -- had expressed back in 2000 a
16       concern at what he called the absolutist approach of the
17       presentation of fingerprint evidence, by which I think
18       he means that fingerprint experts are by training, and
19       indeed by expectation of the criminal justice system,
20       expected to express an opinion to a degree of
21       100 per cent certainty or not at all -- to express no
22       opinion; so it's zero or 100 per cent -- and that based
23       on personal experience, not on empirical data.
24   A.  Yes.
25   Q.  Do you have any concern about that as the model within
page 104
 1       which they are required to work?
 2   A.  Yes, I do.  Science generally -- and I use a very broad
 3       interpretation of science -- forensic science very
 4       rarely, if ever, gives you that absolute approach.  If
 5       you undertake the work, in my view, properly there will
 6       inevitably be error and I think you have got to where
 7       possible try and identify what the error rates are.  For
 8       example, I have seen studies in America on fingerprint
 9       interpretation where there's error rates of about 2 in a
10       thousand.
11           So I do struggle with this notion that it is
12       100 per cent absolutely categorically an identification
13       or it's not because I think you need to identify where
14       there is room for error and accept it.  You know, error
15       is a natural consequence of forensic science and you
16       manage it and we see it in every other area of science
17       and I think we need to train people to recognise that
18       and to report it accordingly.
19   Q.  But in addition to error -- if you will forgive me, I'm
20       not from a science background so I approach it more as a
21       lawyer that I perhaps might be or aspire to be -- in
22       addition to error where someone can say the answer is
23       yes or no, there also would be perhaps a gray area where
24       opinions may differ and there is no objective answer to
25       what is correct, therefore no objective reason to
page 105
 1       believe there is an error?
 2   A.  Indeed and that is often the case in trials right across
 3       the UK.  You know, experts will have a difference of
 4       opinion which is that gray area and that's what the
 5       Criminal Procedure Rules are set up to try and manage
 6       and I think we need to accept that and use it, rather
 7       than expect scientists to stand in the witness box and
 8       give very black and white evidence because invariably
 9       they can't and we shouldn't expect them to.
10   Q.  If I put to you something for comment that we had from a
11       gentleman called Mr Gilchrist, who was a senior
12       prosecutor, now a judge.  He is now Sheriff Gilchrist.
13       He had the privilege of interviewing in person in
14       relation to our particular case a range of professional
15       persons, a range of fingerprint experts who, you may
16       know or you may not know, in fact have polarised views
17       in respect of the particular mark Y7.
18           He came away, admittedly on a simplistic level, with
19       one abiding thought which was that anyone in either of
20       these two opposing camps who believed himself to be
21       100 per cent certain must be wrong at least at the level
22       of professing 100 per cent certainty.  That's obviously
23       a very glib example.
24           Do you find some sympathy with that view that there
25       is a problem here in presenting fingerprint evidence in
page 106
 1       the absolutist way it has been traditionally done?
 2   A.  Yes, I do and I think we need to be far more
 3       sophisticated than that and that's the model I'll work
 4       to in the future or work towards.
 5   Q.  The more sophisticated model would have at least the
 6       consideration of a statistical input?
 7   A.  Yes, and you would have the benefit of records around
 8       dip sampling, proficiency testing, you might have some
 9       indication of the individual error rates around experts,
10       you might have some indication around the error rates
11       from a particular organisation or laboratory, and I
12       think we need to build up that data as well.
13   Q.  The second area that Mr Kent mentioned of the three in
14       the section I was asking you to read was that he had
15       also noticed from his own perspective that the data
16       there would be in any particular image given to
17       individuals would be of variable quality?
18   A.  Yes.
19   Q.  He saw the need for some objective standards, some
20       control for the reliability of the data in an image to
21       proceed through the process.
22           Again, is that something that you recognise as
23       worthy of study?
24   A.  Very much so and it's an issue that's been brought to me
25       not just in relation to fingerprints but in many other
page 107
 1       areas where we do need to work on standards around any
 2       images that are interpreted or analysed or presented to
 3       the courts, and I do agree with that whole-heartedly.
 4   Q.  The final one, and it may be a point just to adjourn at
 5       lunch with perhaps maybe one other question, the final
 6       one was assuming an image to be of sufficient quality
 7       itself, he had himself observed variability in the
 8       particular observations by practitioners?
 9   A.  Yes.
10   Q.  On the face of it, equally qualified individuals
11       presented with the same data in the same image would
12       observe different criteria, different characteristics.
13       The way it was put to Mr Kent was even if we have
14       statistical data that would tell us, for example, the
15       chances of 10 characteristics occurring in a random
16       sample of the population, the first and most elementary
17       question is whether the practitioners can reliably
18       observe those 10 characteristics or not and he saw a
19       need for objective standards to try to test and to
20       protect that variability factor.  Is he correct --
21   A.  No, I don't think he's correct on that point.  I think
22       this goes to the heart of professional judgment and
23       throughout the standard framework that I'm setting up,
24       I'm wedded to this notion that professionals who are
25       properly trained, properly monitored and work within a
page 108
 1       proper framework have got to be allowed to use their
 2       professional judgment and consequently there will be
 3       differences and no two experts will identify exactly the
 4       same features in a mark.
 5           I think we have to perhaps build some better models
 6       and understanding of that, and I agree with that point,
 7       but accept that's the practice.  But that practice must
 8       then operate within a very tight framework that manages
 9       that as an issue.
10           To pin people down to very detailed guidelines
11       around that I think is actually exactly what we don't
12       want because what I'm not keen on is the idea in any
13       field of forensic science to give the professionals, the
14       experts, a sort of tick-box approach to their work.  I
15       think that would be counter-productive.  It's not
16       something that the experts want me to do either and the
17       independent experts I talk to in the sort of
18       non-forensic science areas, but the scientists I talk
19       to, for example, one professor of toxicology at King's
20       College said, "We can't take that approach.  You've got
21       to leave the professionals room to use their judgment"
22       but in such a way that that judgment can be questioned,
23       it can re-examined, their decision-making is recorded
24       and defensible and it's all within a quality management
25       framework that takes account of the issues or the
page 109
 1       problems with that.
 2   Q.  In other words, from your perspective it may remain
 3       ultimately a subjective judgment?
 4   A.  Yes.
 5   Q.  It would be false to assume that one could standardise
 6       that subjective judgment?
 7   A.  I think that would come real risks.
 8   Q.  But nonetheless what one should do is recognise that the
 9       factors that make it subjective and try to guard them
10       somewhere or at least acknowledge those factors are at
11       play?
12   A.  Yes, and acknowledge those factors are human factors
13       that will lead to differences of opinion and
14       possibly conclusions, and that's a risk you manage
15       within the framework.
16   MR MOYNIHAN:  Sir, that would be an appropriate point to
17       adjourn.
18   THE CHAIRMAN:  Yes.  We will sit again then at 1.50.
19   (1.00 pm)
20                      (Luncheon Adjournment)
21   (1.50 pm)
22   MR MOYNIHAN:  Mr Rennison, just before we finish that
23       particular chapter and move on to something else, you
24       have mentioned just when you have been speaking of the
25       need for strategic thinking.
page 110
 1           We've covered the areas that Mr Kent had raised and
 2       you have given us your opinion.  What do you think is
 3       required by way of a response to these?  Is it simply
 4       something isolated to any particular issue of concern in
 5       fingerprints or is it some broader concern you are
 6       referring to when you say there's a need for strategic
 7       thinking?
 8   A.  I think there's a broader issue, sir, and I've mentioned
 9       it in my report.  We are where we are with the Quality
10       Standards Framework for Forensic Science and I will
11       describe it as a sort of good old fashioned British ad
12       hoc-racy that's got us where we are and there has been a
13       sort of ad hoc approach or different approaches to
14       managing quality standards and I think the overarching
15       solution to that and other issues is for a proper
16       strategy board at senior Government official level, in
17       fact, with ministerial oversight, to really manage the
18       direction of forensic science and I think there should
19       be a subgroup below that, that manages risk.
20           I think there are a number of risks out there that
21       have not been properly assessed and managed at the
22       moment, particularly where we have a commercial market,
23       as in England and Wales, particularly in the current
24       environment would be a good example, the economic
25       environment.
page 111
 1           So I have persuaded the Home Office and senior
 2       officials there that we have to have a strategy board
 3       which they have now agreed to hold and it is beginning
 4       to meet and is able to assess issues at the highest
 5       level.  I'm now recommending that the Scottish
 6       authorities and the Northern Irish authorities should
 7       also be invited onto that so that we have a UK-wide
 8       strategy board for forensic science, and in due course
 9       I'd like to see the publication of a coherent strategy
10       for the future of forensic science.
11   Q.  If I can move from what we have been discussing about
12       the general concerns surrounding subjective opinion and
13       move into the court forum, to what extent do you feel
14       that the lawyers and the court in general has a
15       realistic expectation of practitioners in essentially a
16       subjective field?
17   A.  I think it's a very difficult area at the moment.  A
18       very common complaint brought to me through my various
19       groups is one around education of the judiciary and
20       lawyers and others around an understanding of forensic
21       science.  I have taken it up with the Judicial Studies
22       Board but I think it is an area where we could do more
23       work to really help people understand what science can
24       and can't do and what we should expect of it and how it
25       perhaps could be managed in some difficult cases.
page 112
 1   Q.  Looking specifically at fingerprint evidence, we have
 2       touched on already the absolutist proposition that a
 3       fingerprint officer is either 100 per cent certain or he
 4       does not give evidence of any degree of identity.
 5           Is that something you yourself perceive to be a
 6       realistic approach if that's what the legal system
 7       expects of a fingerprint practitioner?
 8   A.  Sir, I give my answer as somebody who is not a
 9       fingerprint expert but I come at this, I think, with a
10       sort of objective view of things and I do find it odd
11       that fingerprint experts are expected to give this
12       absolute yes or no answer and that there is no room for
13       doubt or the "gray area" I think you called it.
14           I think we should aim towards a future that allows
15       for some of that and allows an opinion to be on the
16       basis of perhaps some probabilities, and if we can get
17       the statistics behind that I think that is achievable,
18       which I think would have real benefits for the
19       investigation of cases in the future because I think one
20       risk with the absolute method is that actually you are
21       throwing out potentially good evidence on occasions or
22       useful evidence and if that evidence could be presented
23       in a way that gives it some proper weight or
24       understanding rather than this categoric yes or no, then
25       I think we have a better future.  It works in other
page 113
 1       arenas.  We use probabilistics around DNA, we're using
 2       it in more and more areas and people have grown to
 3       understand it.
 4   Q.  If we can then move into the probabilistics and just
 5       take that relatively briefly, I've an understanding that
 6       there have been some models of probabilistic
 7       presentation of fingerprint evidence that have been
 8       suggested or developed in England but are not yet being
 9       used in court.  Would that be correct?
10   A.  That is correct.  I've had one system demonstrated to me
11       twice now.  My involvement in that is to guide -- it's
12       the Forensic Science Service -- to guide them and advise
13       them on their validation plan because it got rather
14       stuck at one point and we're working our way through
15       that.
16           I think we have to open the doors to that sort of
17       methodology in the future and accept -- one argument
18       that is put to me is that using probabilistic
19       methodology we can't have that at the same time as
20       traditional fingerprint methodology.  I think there's
21       plenty of room for both and I think when you allow the
22       probabilistic route to open up, to be evaluated, to be
23       properly validated and assessed alongside perhaps
24       improvements to be made in the current methodology it
25       leaves the door open for both to be used in the future.
page 114
 1           I do like the notion of presenting evidence on the
 2       basis of a probability because it also, I think, in the
 3       future would allow us to have different sources of
 4       evidence, all based on probabilities and you can
 5       actually start comparing the probabilities and actually
 6       start adding or multiplying them together so actually
 7       evidence can build on evidence from different forensic
 8       disciplines so there are, I think, some quite exciting
 9       potential in that in the future.
10   Q.  What are the issues that currently prevent this
11       technology or methodology being applied in court?  Is it
12       simply it requires to go through a validation process?
13   A.  Yes.  It's getting it to the stage where it can be used
14       on live data and there was a slight hold-up there but we
15       are working our way through that and I think there is a
16       strategic decision to be made here whether we do allow
17       this sort of methodology and that sits outside of my
18       remit.  I think that's the sort of thing the Strategic
19       Board should be addressing.
20   Q.  If I move then to another topic: the question of
21       complaints.
22   A.  Yes.
23   Q.  You mentioned how you have yourself taken on an element
24       of the complaints function.
25   A.  Yes.
page 115
 1   Q.  Is that something that you see of relevance to forensic
 2       science disciplines?
 3   A.  Yes.  Sir, one of my roles is to investigate complaints
 4       about quality standards in forensic science and I
 5       published in my manual of regulation a chapter
 6       explaining exactly what that means and what it doesn't
 7       mean.  It doesn't mean I investigate complaints about
 8       scientists or organisations.  I investigate complaints
 9       about breakdowns in quality or concerns about the
10       validity of science being used in forensic science.
11           So I have undertaken two such investigations, one in
12       the use of low template DNA technology and that resulted
13       in the Caddy Review published last year and I've
14       undertaken one investigation into the science behind the
15       analysis of controlled drugs on currency, which will be
16       published soon.
17   Q.  Do you see that as a valuable area, as an aspect of a
18       regulatory function or regime?
19   A.  Yes.  It's a mechanism for people to raise concerns
20       about quality and for me then to decide whether we do
21       need to investigate and to perhaps report to Ministers
22       and others in due course.  It's also a methodology
23       whereby we can actually, if it works properly, deal with
24       issues before they become too ingrained or too
25       problematic.  I'm beginning to open the doors to some
page 116
 1       form of whistle-blowing methodology as well so we can
 2       raise concerns from people within the forensic science
 3       arena who might want to address issues directly with me
 4       that concern them but they can't go through the normal
 5       hierarchy to do that.
 6   Q.  The final piece I wanted to ask you about is something
 7       that I haven't touched upon so far and that's to look at
 8       practitioner regulation.
 9   A.  Yes.
10   Q.  We talked about organisation, practitioner and then
11       methodology.  I've covered organisation and I think I
12       said as much as I want to ask you about the methodology
13       of fingerprint.  What I have overlooked is the
14       practitioner level.
15           You were writing your report at the time that the
16       CRFP was about to go into terminal decline and to cease.
17       You explain in your report that it was an essential part
18       of UK Government thinking that forensic science would be
19       regulated through the accreditation of the individual
20       practitioners.
21   A.  Yes.
22   Q.  And the Council for Forensic Practitioners was the core
23       of that policy.  That Council has now ceased to operate.
24           Has the focus for regulation now shifted on to
25       organisations or is this a gap that has yet to be
page 117
 1       addressed?
 2   A.  I could -- forgive me -- I could do you an hour's
 3       presentation on the history to this and how it all came
 4       about but I will be as quick as I can.
 5           When I came into post, it was fairly clear to me --
 6       this was February last year, sir -- it was fairly clear
 7       to me that the Council for the Registration of Forensic
 8       Practitioners (CRFP, as it is commonly known) was not
 9       meeting its objectives and those objectives had been set
10       about ten years earlier as a means of assessing
11       practitioner competence and through that placing people
12       on the register.  And the original target was to
13       register the vast majority of forensic practitioners, be
14       they crime scene investigators, scientists, fingerprint
15       experts.  The original figure was set at close to 10.5
16       thousand people.
17           Back in, sort of, I guess, about 2007 -- sorry, 2004
18       they reached about 1,200 registered practitioners and by
19       then they were supposed to become self-financing as a
20       regulatory body through subscriptions and fees but they
21       were way off the mark.  So there was a detailed review
22       in 2004/2005 at which point the Home Office agreed to
23       fund them further but made it very, very clear that they
24       had to be self-financing by the end of the financial
25       year 2010.  So March end of March 2010.
page 118
 1           When I came into post they wrote a letter to me and
 2       the Home Secretary saying, "We will never achieve that.
 3       We're not going to hit our targets.  Could you extend
 4       our grant in aid, please".  So I recommended to the
 5       Minister, Meg Hillier, that she actually invited me
 6       to conduct a review because clearly they were never
 7       going to achieve their objectives and it was providing
 8       what I described as a comfort blanket around quality
 9       standards that actually gave no-one any real warmth or
10       support if you looked at it in detail because probably
11       fractionally less than 30 percent of the practitioner
12       population was registered.  By March last year they got
13       that figure up to 3,000 people.  So it left
14       enormous gaps in the number of practitioners that were
15       registered and regulated through that route.
16           The largest population within those that were
17       registered were the police practitioners, the
18       fingerprint experts and the crime scene investigators
19       and they made up about 71 per cent of the database.
20       Quite frankly, I don't think it was really set up for
21       them.  It was more set up for the scientists in the
22       laboratories but the police were propping this up
23       through their membership.
24           Then when I looked at the accreditation model
25       through United Kingdom Accreditation Service, I realised
page 119
 1       that practitioner competence as managed by the register
 2       was dealt with through accreditation anyway.  So the
 3       forensic scientists that were registered were also
 4       assessed through the accreditation process to a higher
 5       level.  One of the jobs of a regulator is to peel away
 6       unnecessary regulation.  Certainly for forensic
 7       scientists and their laboratories it was an unnecessary
 8       layer of regulation.  So I proposed the
 9       accreditation model and the Association of Chief Police
10       Officers and the Chief Executive of the National Police
11       Improvement Agency agreed with my ideas at which point
12       the police then backed away from CRFP.  So instead of
13       looking to achieve increased numbers of registration it
14       was going to rapidly decrease and the funding just
15       didn't work.  So the CRFP Board had no option, because
16       they were operating as a company limited by guarantee,
17       had no option but to wind up the company.
18           Before we allowed that to happen I did consider the
19       issue and consulted with the Crown Prosecution Service
20       and other experts that advised me and said is there a
21       risk to the criminal justice system if that happens and
22       I reached the conclusion there was no risk at all.
23           Take, for example, fingerprint experts.  On the
24       figures that CRFP gave me probably about 55 per cent of
25       the experts across the UK were actually registered and
page 120
 1       nobody ever raised a risk around those that weren't
 2       registered.  So as a regulatory mechanism it wasn't
 3       achieving anything and there was a better way of dealing
 4       with it and, in my view, it doesn't leave a gap.
 5   Q.  Sorry, in your view ...?
 6   A.  It doesn't leave a gap.
 7   Q.  Does not.
 8   A.  On one level -- there are probably about 300 people that
 9       are on the register who are what we call the occasional
10       experts, the forensic archaeologists or
11       the entomologists, usually based in universities, who do
12       gain some benefit from registration with a body like
13       that.  But I've always argued that's a job for the
14       professional body, ie the Forensic Science Society, to
15       manage and they have picked up that baton and they are
16       at my conference tomorrow presenting an area of
17       membership within their Society which would allow people
18       to register as competent practitioners.  But it's not
19       designed for the bulk of forensic practitioners who
20       would be through the accreditation route.
21   Q.  Just to be clear, as you say, subject to certain
22       specialists perhaps within universities for whom there
23       is no professional body, you would see the quality
24       assurance through organisations such as SPSA --
25   A.  Yes.
page 121
 1   Q.  -- as a better route for the regulation of practitioners
 2       than a stand-alone professional body for them?
 3   A.  Yes, accreditation is a far superior route.  It is far
 4       more testing.  It recognises those three key levels you
 5       brought out earlier, which of course is the
 6       organisation, the practitioner and the validity of
 7       methods.  It recognises the interlinks between those and
 8       it is the way forward and it is the European model as
 9       well that is now emerging.
10   MR MOYNIHAN:  Thank you very much, Mr Rennison.  I have no
11       further questions, sir.
12   THE CHAIRMAN:  Are there any applications?
13   MR SMITH:  Sir, there is one matter I would like to ask.  It
14       relates to the question of opinion being given.  The
15       witness, as I understand, has indicated that a lot of
16       matters relate to just the experts' opinion but I would
17       like to ask the difference between a positive and
18       negative opinion, whether that makes any difference.
19   THE CHAIRMAN:  Very good.
20   MR SMITH:  Thank you.
21                    Cross-examined by MR SMITH
22   Q.  Mr Rennison, I think you indicated that undoubtedly when
23       someone is giving evidence, if we take fingerprints as
24       an example, if they were to say, "This is the
25       fingerprint of Mr X", then undoubtedly that could be a
page 122
 1       matter of professional opinion.
 2   A.  Yes.
 3   Q.  Suppose that an expert says, "That is definitely not the
 4       fingerprint of Mr X", I take it you will accept that
 5       could be entirely factual?
 6   A.  Yes, it could be an opinion as well, yes.
 7   Q.  I'm just imagining if one looks at fingerprints and I
 8       recognise we possibly know a little more about the
 9       detail than you do but if it is so obviously totally and
10       utterly different, then it's not really then a matter of
11       opinion as such, it's just a question of fact, isn't it?
12   A.  It could be, yes, yes.  But I can't comment on specifics
13       but of course it would be, yes.
14   Q.  I am concerned if you were to suggest that in all
15       circumstances it's really a matter of opinion that's
16       been given.  I think an example given in the criminal
17       trial of Shirley McKie by defence counsel was that if an
18       elephant walks into the room and someone says, "Well,
19       that's an elephant", and somebody else says, "No, it's
20       not, it's a bus.  I can see a bus", there must be some
21       circumstances where it's not a matter of opinion.  It's
22       just so obvious that there is a difference you would
23       accept that that could be the position?
24   A.  That can be the position, yes.
25   Q.  Where it may be a matter of opinion is if an expert's
page 123
 1       faced with an unknown print and two possibles and one
 2       says, "I think it's Mr X", and one says, "I think it's
 3       Mr Y", we can see there could be an ongoing difference
 4       of opinion in a positive sense?
 5   A.  Yes, and you find in many other areas there
 6       are regular differences of opinion by experts and that's
 7       one for the courts to juggle with.
 8   MR SMITH:  Of course.  Thank you very much.
 9   THE CHAIRMAN:  Mr Holmes?
10   MR HOLMES:  No application, sir.
11   THE CHAIRMAN:  I should maybe ask you last, Miss Jones, in
12       case -- Miss Grahame, have you any application?
13   MISS GRAHAME:  I have no application, sir.
14   MISS JONES:  Just one question I think, sir, in relation to
15       the accreditation issue.
16   THE CHAIRMAN:  Yes.
17                   Cross-examined by MISS JONES
18   Q.  Mr Rennison, you said in evidence that you thought SPSA
19       was leading the way in relation to accreditation, I
20       think you were talking about the context of ISO17025.
21       Could you expand on that and explain in what respect you
22       meant that.
23   A.  Firstly, I was very glad to be invited up to Scotland a
24       couple of months ago to do a presentation to the SPSA
25       and a room full of their experts on my standards model
page 124
 1       and the benefits of accreditation and they used that as
 2       a means of consulting with their staff about the future
 3       of accreditation.
 4           It was a chance for me to explain the future as I
 5       saw it.  Since then I have leant they have applied for
 6       accreditation for their fingerprint work and, in fact, I
 7       was meeting with their Quality Manager yesterday to
 8       discuss that.  I'm very pleased with the progress they
 9       are making and also they have applied for accreditation
10       for their crime scene investigation work.
11           Of course, it's a different model in Scotland so the
12       SPSA have control of all of those arenas anyway so it's
13       easier for them to do it but they will be the first
14       police/forensic authority in the UK to have
15       accreditation to 17025 and 17020 for all of their
16       forensic investigations.  So in that sense they are
17       leading the way and, in fact, it's a supreme opportunity
18       for me and the United Kingdom Accreditation Service to
19       pilot some of these standards and the enhancements we
20       are making to it.
21   Q.  In relation to any of the individual laboratories are
22       you aware of whether any of the individual laboratories
23       have achieved particular levels of accreditation --
24   A.  I don't know the answer to that.
25   Q.  -- or is that something that everyone is working towards
page 125
 1       together.
 2           The only other question I wanted to ask you about
 3       was you gave you some evidence about the statistical
 4       work that's being done.
 5           Are you aware that SPSA is funding a member of staff
 6       to do an MSC on probability -- I'm not sure the exact
 7       title but in the area of probability methodology?
 8   A.  I wasn't aware of that.
 9   Q.  In your opinion, do you think that might assist dealing
10       with the concerns that have been expressed about the
11       area of statistics?
12   A.  It certainly could do, yes.
13   MISS JONES:  That was all I have.
14   MR MOYNIHAN:  No further questions, sir.
15   THE CHAIRMAN:  Just before we let you get on your way, like
16       you, I have experienced in other fields of forensic
17       science experts expressing their opinions on highly
18       probable, probable and sometimes possible in, for
19       example, fibres and evidence about items like that.
20           Have you ever discovered in the course of your work
21       why fingerprint experts were expected to express their
22       opinion in such firm terms?
23   A.  I think it's just tradition.  I think that's just the
24       way it's always been done and I think if we took a
25       proper strategic approach to these things we would
page 126
 1       actually challenge some of those traditions and those
 2       ways of doing things because, you know, proper science
 3       should always allow you to challenge things and find
 4       better ways of doing things and we shouldn't be shy of
 5       that.
 6   THE CHAIRMAN:  It's easier to blame the courts for wanting
 7       proof beyond reasonable doubt but in the examples you
 8       gave and we have just discussed the courts have accepted
 9       evidence on the terms that I just described.
10   A.  Yes.
11   THE CHAIRMAN:  Thank you very much.  I am grateful to you
12       for giving time to come and talk to us and I hope that
13       the work of the Inquiry may even assist you in return at
14       some stage.
15   A.  I look forward to your final report, sir.
16   THE CHAIRMAN:  I think I do too.  Thank you very much.
17   A.  Can I say thank you for fitting me in as well because it
18       gives me the chance to get away this afternoon so I am
19       very grateful for that.
20   THE CHAIRMAN:  Thank you.
21                      (The witness withdrew)
22   THE CHAIRMAN:  Now, Mr Sheppard, if you would like to come
23       back.
24                     GEOFFREY ARTHUR SHEPPARD
25   THE CHAIRMAN:  I am not quite sure where we got to on the
page 127
 1       points you raised that you said you wanted to deal with.
 2   MR SMITH:  Sir, I want to move on to deal with QI2.
 3   THE CHAIRMAN:  Yes, QI2.
 4              Cross-examined by MR SMITH (continued)
 5   Q.  Mr Sheppard, I would like to look at CO0032 we were
 6       looking at before we took a break from your evidence.
 7           Can we go to the second page of that document
 8       please.  We can see towards the bottom of the page in
 9       the third last paragraph we can see that what is said in
10       the statement is:
11           "I have also examined a photograph of impression
12       QI2.  I have compared this with the right forefinger of
13       Marion Ross and I am satisfied that the impression was
14       not made by this digit."
15           I would like to read on through the statement.  What
16       you say is:
17           "When you examine the photograph your eye is
18       immediately drawn to the centre where you can see the
19       core with a lake and a bifurcation immediately to the
20       right of the core."
21           You explain:
22           "I have seen the enlargement of the right fore
23       finger of Marion Ross and the enlargement of the
24       photographed impression [you give the number of it]
25       QI2 used in the David Asbury trial.  I note that SCRO
page 128
 1       claiming to have found 16 common characteristics.
 2       Points 1, 16 and 10 are 'blobs' in the core.  I do not
 3       think these are identifiable from the photograph of the
 4       impression."
 5           I take it by "blobs", you just mean a mark you can't
 6       make anything of?
 7   A.  Absolutely -- probably contamination.
 8   Q.  I see, just contamination rather than any identifiable
 9       feature?
10   A.  I think so, yes.
11   Q.  I think you then go on to say:
12           "The bifurcation immediately to the right of the
13       core on the SCRO chart is the wrong shape and is in the
14       wrong place.
15           "Characteristics numbered 3 to 9 are in an area of
16       the impression from which it is almost impossible to
17       draw any conclusions.  Characteristics 11 to 16 are in
18       an area where there is clear superimposition and from
19       which I think it is impossible to draw any conclusions.
20       Most telling of all, this clearly a ridge ending above
21       the core of the photographed impression and yet there is
22       no such ridge ending on the fingerprint of Marion Ross.
23       It is almost impossible to understand how the SCRO
24       fingerprint experts could have ignored this ridge
25       ending.  In my opinion, the 16 points are not there and
page 129
 1       have been deliberately made to fit.  The lake in the
 2       core, the bifurcation to right of the core and the ridge
 3       ending above the core are the only clear points on the
 4       photographed impression and yet the bifurcation is in
 5       the wrong place and is the wrong shape on the
 6       fingerprint of Marion Ross and the ridge ending is not
 7       present.  The lake is the only point which may be
 8       present but I do not think SCRO were entitled to count
 9       that as involving three common characteristics.  At best
10       there would only be one characteristic capable of
11       identification.
12           "Once again I find it difficult to understand how
13       the SCRO experts could have made such mistakes.  This is
14       either incompetence or they were deliberately attempting
15       to strengthen the case against David Asbury."
16           Now, I don't need to trouble you with the detail
17       but, again, they are strong words, Mr Sheppard, there,
18       particularly at the end.
19           Do you adhere to that view just now?
20   A.  Yes, I do.  Nothing to the contrary has happened or that
21       I have heard of to make me change that opinion.
22   Q.  I think just to explain I think we heard some evidence
23       that some Danish experts looked at this particular print
24       and they were also -- I think the indication was that
25       they were more than a little surprised that they had
page 130
 1       made the match.  The way you put it at the end of this
 2       report suggests perhaps deliberately, on one view
 3       deliberately, attempting to strengthen the case against
 4       David Asbury.
 5           You use the phrase, "trying to deliberately make it
 6       fit".  Again, are you sticking with that position?
 7   A.  Yes, I have to stick with that because I've heard
 8       nothing to the contrary to make me change my opinion.
 9   Q.  Could there be any possibility there was just a terrible
10       mistake made in your view by the SCRO officers?
11   A.  I think initially, yes, quite possible.  But then that
12       mistake was compounded by a series of events that really
13       are beyond description.
14   Q.  I suppose something that you have maybe taken on board
15       thus far is that you have severe criticism over the Y7
16       issue which may have been a mistake first off and then
17       been revisited?
18   A.  Yes.
19   Q.  But within the same murder case we have, to an extent,
20       the same core of people coming to an incorrect
21       conclusion about another fingerprint.
22   A.  Yes.
23   Q.  That again you are very critical of?
24   A.  Yes.
25   Q.  Do you see any significance in the combination of these
page 131
 1       two terrible mistakes perhaps arising in one case?  Is
 2       that something that you have any comment on?
 3   A.  Other than I've never experienced anything like it in
 4       40 years of fingerprint practice.
 5           I think if I might explain one of the reasons for my
 6       supposed strong language, for the last ten years of my
 7       service I was teaching best practice to all fingerprint
 8       bureaux in England and Wales, Northern Ireland and
 9       overseas and when you've taught best practice and you
10       instilled it into people, to see errors of this
11       magnitude appear, then there's no other way I could
12       explain it without using rather strong terminology.
13   Q.  Can we go to CO1318, please, and can you flick through.
14       I think we possibly looked at this earlier with
15       Mr Moynihan but didn't go into a great deal of detail
16       with it.  We can see what this is and I think it you
17       have already explained what the document is.  But in the
18       first paragraph I think we can see that you went on to
19       explain the detail, the key points, and says how you
20       demonstrated in some detail how Y7 was not the
21       fingerprint of Shirley McKie and so on and so forth and
22       you indicate the SCRO view was erroneous, I think is how
23       it was put at the end of that.
24           In the second paragraph there's a reference to what
25       is described as collective manipulation of the evidence
page 132
 1       and great concern in relation to presentation of the
 2       evidence and so on and you have covered that.
 3           Can you go on to the next page, please.  The third
 4       paragraph is:
 5           "Collective collusion to identify Shirley McKie's
 6       fingerprint.  In light of the obvious findings of
 7       Mr Sheppard and his two colleagues at Durham, they were
 8       of the view that such was the standard of evidence
 9       produced for the court and the obvious differences in
10       the fingerprint impressions that those involved in the
11       identification must have colluded to have made this
12       identification which, in his view, simply was not
13       there."
14           Going on:
15           "General discussion ensued regarding the findings of
16       Mr Sheppard and his colleagues and the implications for
17       SCRO.  Mr Sheppard was advised that as a result of the
18       report Mr Sheppard and his colleagues may be required to
19       appear as a witness in any subsequent case against
20       individuals if that was the Crown decision to do so."
21           Can I take it from that last paragraph and the stuff
22       that is above it that you understood that it was being
23       actively considered that there may be -- may be --
24       conduct verging on the criminal or criminal conduct on
25       the part of those within SCRO?
page 133
 1   A.  I was, in that when I first met Detective Chief
 2       Superintendent Robertson, Scott Robertson, he explained
 3       what was happening in Scotland, that there were two
 4       forms of inquiry.  His was a criminal inquiry really
 5       reviewing the whole criminal investigation and there was
 6       another team under, I think, Central Scotland's Deputy
 7       Chief Constable looking at procedures and practices.  So
 8       I was aware of, you know, the criminal intent right at
 9       the outset.
10   Q.  I think -- sorry to interrupt I think we have a problem
11       with the LiveNote.  (Pause)
12           I wonder if I could, if I may, go on to ask you
13       about the question of the Internet image that was being
14       used by some individuals as compared to the image used
15       originally by SCRO.
16           Now, as I understand it -- and no doubt I will be
17       corrected if I'm wrong about this -- I think a
18       suggestion has been made at some stage that because SCRO
19       had the original, as it were, they examined the
20       original.  Anyone who is coming along and looking at it
21       subsequent that had the mark across it, this possibly a
22       brush mark or something like that, that they were not
23       able effectively to comment on the original SCRO
24       examination.
25           Generally speaking, do you have a comment about
page 134
 1       that?
 2   A.  I know there was -- I personally didn't look at the
 3       Internet mark and the mark on it and the comments that
 4       were being provided from around the world, it would
 5       seem.  So I really don't know.
 6           I purposely didn't go on the Internet and look at
 7       what was being said, thought about or what was being
 8       presented.
 9   Q.  You subsequently saw Pat Wertheim's presentation, a
10       photograph that he took?
11   A.  Yes, we were given a copy of that, yes.
12   Q.  Did you have any difficulty in recognising that that was
13       Y7, the Y7 that you had looked at before?
14   A.  No.
15   Q.  I would like you to look at, really for your comment on
16       this paragraph on the statements, a statement if Fiona
17       McBride to the Inquiry, FI0039 at paragraph 137 please.
18           At 137 we can see that she comments on giving
19       evidence at the trial:
20           "As I was giving evidence in cross-examination I was
21       shown a defence production photograph that was said to
22       be of Y7.  I understand that the photograph was taken by
23       Pat Wertheim.  I did not recognise it as a photograph of
24       Y7.  There were striations or white lines across it.  It
25       was as though someone had drawn a Scene of Crime
page 135
 1       examiner's brush over the mark.  In any event, it
 2       transpired that the mark had been damaged before the
 3       photograph was taken by Pat Wertheim.  At the time when
 4       presented with the photograph I was confused.  I did not
 5       even think it was the same mark.  I know that Terry Kent
 6       had taken photographs of the mark and his photographs
 7       showed no such lines.  The question of damage to the
 8       mark was raised as an issue at Justice 1 [that's the
 9       Parliamentary Inquiry].  I understand Pat Wertheim
10       examined the mark at some time after Terry Kent.  Pat
11       Wertheim has stated to Justice 1 that it was in that
12       state when he examined it and that he did not report it
13       to the court officer.  Pat Wertheim has subsequently
14       tried to refute the extent of the damage on a website
15       known as CLPEX.  This contradicts his earlier evidence."
16           I am interested in the first part of that.  The
17       suggestion by Miss McBride seems to be that, as I
18       understand it, because of the damage to the mark she had
19       difficulty even recognising it as Y7.
20           Do you have any comment on that?
21   A.  No comment, other than I find that quite amazing.  When
22       the mark or the actual wooden doorframe came to Durham,
23       it had allegedly been damaged as you just referred to
24       but it didn't make any difference.  You could still see
25       it for what it was.  So, no, the damage as
page 136
 1       insignificant.
 2   Q.  I would like to move on to ask you a bit about some
 3       matters stated by Mr Alister Geddes in his evidence
 4       before this Inquiry.
 5           Before going to that, I would like to ask you
 6       this: suppose that you examine a mark and compare it
 7       against an inked fingerprint and you find a number of
 8       points that appear to be in agreement but you find a
 9       point that is in disagreement that cannot be explained
10       away.
11           Is there any conclusion that you could draw from
12       that?
13   A.  That it's not identical.  That would be the only
14       conclusion.
15   Q.  You see, the reason I ask this is that, as I understand
16       Mr Geddes' evidence -- and for those who have access to
17       LiveNote this is page 22, line 10 -- I asked him a
18       question:
19           "So I want to be clear -- last question on this if I
20       may -- are you saying that even if there was a
21       difference, say a ridge ending wasn't there, you think
22       there could still be a match between the known and
23       unknown is that right?"
24           And he said:
25           "Almost definitely, depending on the balance of
page 137
 1       information you have."
 2           So what he is doing is saying if there is sufficient
 3       other information, even if there is something like a
 4       ridge ending that is not there in the inked print you
 5       could still say it's a match.  Do you disagree with
 6       that?
 7   A.  I disagree with that, in that the common practice and
 8       the common application of rules, although not written
 9       down rules, is that to provide evidence in a court of
10       law you must provide 16 ridge characteristics in
11       coincident sequence with none in disagreement.
12   Q.  Have you heard of SWGFST, I think it is known as --
13       S-W-G-F-S-T?
14   A.  Yes, I've heard of it.  I don't know very much about it.
15   Q.  You don't know much about it?
16   A.  Not at all.
17   Q.  If I was to suggest to you that there are a number of
18       possible results from a fingerprint analysis, if you are
19       looking at a latent against an inked mark, one is, if
20       one puts it this way, in my opinion there is a match
21       between the two, they are of common authorship; the
22       second is they are not of common authorship; and the
23       third is there is insufficient detail for comment one
24       way or the other.  Are these broadly three acceptable
25       characteristics?
page 138
 1   A.  Yes.
 2   Q.  Would you agree with the suggestion that if there is a
 3       difference between the two, unless a valid explanation
 4       can be given, I suppose, for example, an overlay from
 5       another print or something or some kind of distortion,
 6       then the only conclusion that can reasonably be drawn is
 7       that these two fingerprints are not of common
 8       authorship?
 9   A.  Absolutely.
10   Q.  Therefore, I suppose it would be hard to imagine it
11       theoretically but if you have 16 or 17 or 18 points in
12       apparent agreement but one very clear one that is in
13       disagreement you would still have to conclude this is
14       not a match between the two?
15   A.  Absolutely.
16   MR SMITH:  Thank you very much.
17   THE CHAIRMAN:  Thank you.
18   MR HOLMES:  Thank you, sir.  There are five matters that I
19       would want to cover with Mr Sheppard.  The first relates
20       to the courses that were mentioned this morning that he
21       undertook with Mr Ashbaugh which, as I understand from
22       his evidence, included images of Y7 and the fingerprint
23       of Shirley McKie.
24           The second is his work for the Mackay team which
25       resulted in the 2001 report.
page 139
 1           The third overlaps with that but relates to the
 2       examination carried out by he and his colleagues of Y7.
 3           The fourth is his approach to fingerprint
 4       examination in general.
 5           The fifth is his understanding of practices in place
 6       at SCRO at the time.
 7   THE CHAIRMAN:  Yes.  Very good.  You may have leave to
 8       cross-examine on those points.
 9   MR HOLMES:  Thank you, sir.
10                   Cross-examined by MR HOLMES
11   Q.  Mr Sheppard, firstly if I can take you back to the
12       evidence you gave about courses that yourself and I
13       think it's Mr Ashbaugh undertook.  Paragraph 12 of your
14       statement refers to these and, in particular, to the
15       materials that you collated for those courses.  You note
16       in paragraph 12 of your statement that Y7 was part of
17       those materials.
18           How, firstly, did Y7 become part of those materials?
19   A.  I really have no idea.  I was seconded to the David
20       Ashbaugh presentations of which there would be four
21       one-week courses provided for UK experts.  He provided
22       all the photographs that were used on those four
23       courses.  So he arrived with -- I don't know -- hundreds
24       I have to say, of images and fingerprints on a laptop
25       computer.  So how he obtained it I really have no idea.
page 140
 1           At that time I wasn't aware it was even Y7.  There
 2       were no indications on any of the photographs
 3       whatsoever.  He suggested how they would be paired off
 4       and presented to the experts attending the courses and
 5       Allan Bayle and myself either concurred or disagreed and
 6       thought, well, that photograph would be a better test of
 7       the experts' abilities.
 8   Q.  And you have no idea where he obtained the photograph?
 9   A.  I've no idea whatsoever.
10   Q.  Do you recall whether the image produced was the version
11       with or without the damage to it?
12   A.  I really have no idea.  It was one of hundreds of
13       photographs that I looked at and then were compared by
14       the various experts who attended on these four courses.
15   Q.  Was there a known mark that you were comparing each
16       photograph to or a number of known marks that the
17       students were comparing each photograph to on those
18       courses?
19   A.  There was no identification on any photograph
20       whatsoever.  They were offered to Allan Bayle and myself
21       as pairs.  Did we think those suitable for an analysis
22       and comparison by the experts who were attending?  So
23       the photographs of fingerprints meant absolutely nothing
24       to me nor to Allan Bayle, I have to say, and the
25       photographs of the scene of crimes marks meant nothing
page 141
 1       to us either.
 2   Q.  So again you wouldn't know the origin of the
 3       comparison print that was paired up with Y7 --
 4   A.  I have no idea.  I don't know.
 5   Q.  Can you confirm that at some stage during these courses
 6       Mr Ashbaugh referred to Y7 in particular as "Pat's
 7       mark"?
 8   A.  He might well have done.  I don't remember it called
 9       that at all.
10   Q.  What would that mean to you if he had done?
11   A.  Pat Wertheim.
12   Q.  If it's indicating Pat Wertheim, would that perhaps mean
13       that it had been a mark that had been produced by
14       Mr Wertheim or provided by him?
15   A.  It could well be.  It really didn't register with me, if
16       he even said that.  But if he did say it then it really
17       went straight over my head.  I didn't see the
18       significance of it.
19   Q.  You go on to state in that paragraph that Y7 formed what
20       you call an insignificant part of the material for the
21       course.  How is it that one mark in particular becomes
22       less significant on that course than any others do.
23   A.  Less significant?
24   Q.  Yes.
25   A.  It was one of many.  I mean, we had four one-week
page 142
 1       courses attended by at least 20 experts from bureaux
 2       from around the United Kingdom.  We never used the same
 3       photographs twice in that we didn't want the first
 4       week's people going back wherever they were and
 5       discussing what they had seen and what conclusions they
 6       had drawn.  So we had a fantastic number or he provided
 7       a fantastic number of photographs, none of which had any
 8       relevance in an identification process.  Ashbaugh was
 9       dealing purely and simply with third level detail which
10       he believed was new to the United Kingdom.
11   Q.  Is it, therefore, an unfortunate coincidence that mark
12       Y7 made an appearance in the course that Mr Dunbar was
13       attending?
14   A.  Certainly as far as I was concerned it was purely and
15       simply a coincidence.  Now, whether David Ashbaugh had
16       engineered things in that way, then I really couldn't
17       say.
18   Q.  You have said in your evidence that you recall
19       Mr Dunbar voicing some concerns about the appearance of
20       mark Y7 in such a course?
21   A.  I became aware of it.  I wasn't party to the actual
22       conversation but I was certainly on the periphery of
23       that conversation.
24   Q.  If Mr Dunbar gives evidence that it was to you his
25       concerns were voiced, do you have reason to doubt that?
page 143
 1   A.  I wouldn't say he was lying but I certainly don't
 2       remember the incident.
 3   Q.  Moving on to the work that you did for the Mackay team,
 4       paragraph 17 of your statement first mentions that.  Did
 5       you as part of the work that you undertook for the
 6       Mackay team compare Y7 against anyone's known
 7       fingerprints other than Ms McKie?
 8   A.  We ended up comparing Y7 and QI2 with, I think,
 9       something approaching 300 sets of fingerprints.
10   Q.  It's perhaps unfair to ask then, do you recall a
11       particular individual against whom Y7 was compared by
12       the name of Gary Gray?
13   A.  No.  That name has been mentioned to me prior to my
14       arrival here and other than it was a name on a list it
15       meant absolutely nothing to me.
16   Q.  Paragraph 81 of your statement suggests that you will
17       have compared Y7 against Gary Gray?
18   A.  If his name was on the list and we had his fingerprints
19       then, yes, it would have been compared.
20   Q.  Would Mr Gray have been eliminated as a possible donor
21       of Y7?
22   A.  No, he wasn't.  Nobody was.
23   Q.  Where then did the Mackay team come up with the notion
24       that Mr Gray had been excluded as the donor of Y7?
25   A.  I have no idea.
page 144
 1   Q.  Paragraph 30 of your statement mentions the meeting on
 2       20th July 2000 at which you were instructed first to
 3       compare Y7 against Ms McKie's fingerprints.
 4           Do you recall what was discussed at that meeting?
 5   A.  Briefly, yes.
 6   Q.  Were you aware at that meeting or were you aware as a
 7       the result of the discussions that took place at that
 8       meeting that the identification of Y7 was alleged to
 9       have been in error?
10   A.  Not that I recall.
11   Q.  What were your instructions at that meeting?
12   A.  To review the whole of the SCRO applications, compare Y7
13       with a list of elimination fingerprints put forward to
14       us and I asked, purely in the preparation of this
15       exercise, how many were likely to get and I was told
16       about 30 to 35.  So in planning the work that we were
17       proposing to do which had to be done outside of our core
18       training time, it seemed very achievable and achievable
19       in a short space of time.
20           Subsequently from Scott Robertson we hear there's
21       another batch of fingerprints coming down and it felt as
22       though we were inundated with them.
23   Q.  When did you first become aware that the identification
24       of Y7 is or was alleged to have been in error?
25   A.  I held no opinion until we started our own scrutiny of
page 145
 1       Y7 and our comparison process, as we were asked to.
 2   Q.  Paragraph 34 of your statement also refers to that
 3       meeting and it contains a reference to what you refer to
 4       as a tongue in cheek comment that if SCRO had found
 5       16 points in sequence and agreement in Y7, it must be a
 6       good mark.
 7           Can you explain that comment?
 8   A.  That's the Chief Inspector who accompanied Scott
 9       Robertson.  At the end of the meeting we were all
10       breaking up to go our various ways, was it a good mark,
11       and I purely and simply said if they found 16
12       characteristics on it then I would assume it was a good
13       mark.  I hadn't studied the mark at that time or
14       examined the wooden doorframe.
15   Q.  You say that at that stage you had no idea that Y7 was
16       alleged to have been identified in error.  When did you
17       and your team first become aware of Mr Wertheim's
18       report?
19   A.  When we (1) received the doorframe and then started to
20       receive the other informations, you know, the SCRO court
21       presentations, Pat Wertheim's, the elimination
22       fingerprints, Shirley McKie's and the Marion Ross'
23       fingerprints.
24   Q.  So as you were receiving material on which you were to
25       base your findings you became aware that this was the
page 146
 1       allegation that you were investigating?
 2   A.  Yes, clearly.
 3   Q.  That was before you carried out your own examination?
 4   A.  Sorry?
 5   Q.  That was before you carried out your own examination?
 6   A.  Yes, I think so.
 7   Q.  When did you first become aware of the Frontline
 8       Scotland documentary?
 9   A.  Oh, after we had completed our work, I would say
10       probably 12 or 18 months, when a student from one of the
11       Scottish forces -- and I couldn't tell you which one --
12       asked if we had seen Scotland Tonight, I think it was,
13       something like that anyway, and I said we've seen
14       nothing and we were quite happy with that.
15           She had recorded the programme on presumably the BBC
16       and would we like a copy.  I said, well, yes.  As far as
17       I was concerned at this time our involvement with the
18       whole thing was completed, finalised.  We would have no
19       more involvement in it.  So I felt perfectly happy to
20       look and view that and see what the BBC were presenting
21       because up to that time our information on what was
22       happening and what had happened was scant at best.
23   Q.  So are you saying it is somewhere around 2002/2003 --
24   A.  Oh I would imagine so, yes.  Certainly long after we
25       completed our investigation.
page 147
 1   Q.  You had contact with the journalist that was responsible
 2       for that documentary long before that though, didn't
 3       you?
 4   A.  I had sorry?
 5   Q.  Contact with the journalist responsible for that
 6       documentary long before that.
 7   A.  Who, Shirley Jofre?
 8   Q.  Yes.
 9   A.  I can't tell you.  I've got no idea.
10   Q.  Well, at one stage during your evidence you said that
11       Miss Jofre contacted you frequently which seemed to
12       cause you some consternation?
13   A.  No, that was after 2005 when I'd retired.
14   Q.  I see.
15           Was the starting point by the Mackay team not the
16       assumption that SCRO had made a mistake here?
17   A.  I really don't know what their thoughts or opinions
18       were.
19   Q.  There was a further meeting on 2nd August and I think
20       you have already been referred to the minutes of that
21       meeting.  They are CO1318.  Those are the minutes of the
22       meeting on 2nd August 2000; is that correct?
23   A.  It is.
24   Q.  Now, you have already come to some conclusions as to
25       collective manipulation of evidence which we will
page 148
 1       discuss in due course.  That is in paragraph 2 but I
 2       wonder if we could move on to the second page, please.
 3           The particular entry I'm interested in is just the
 4       second from the end there which says that at 3.45
 5       Mr Mackay joined the meeting and the meeting then ended
 6       at 5.00.  Nothing is minuted in between.  What occurred
 7       in that hour and a quarter?
 8   A.  Sorry, can you repeat the question?
 9   Q.  Well, there are minutes of the meeting extending to 3.45
10       in the afternoon and Mr Mackay arrives at about that
11       time and the meeting concludes an hour and a quarter
12       later.  What was discussed during that hour and a
13       quarter?
14   A.  Purely and simply looking at what he was attempting to
15       ascertain, in that he or he and his team were looking at
16       procedures and practices, what was happening at that
17       time in England and Wales, rather than any definitive
18       points about the Scotland procedures.
19           But he'd called in at Harpley Hall on his way -- if
20       I'm not mistaken -- to either Manchester or Merseyside
21       seeking further information regarding the procedures and
22       practices.
23           He wanted to know what we taught to fingerprint
24       people, be they trainees or experts, in England and
25       Wales.
page 149
 1   Q.  So were you made aware at that stage that the allegation
 2       was that Y7 had been mis-identified?
 3   A.  Becoming aware, yes.
 4   Q.  You were becoming aware.  What was causing you to become
 5       aware at that stage?
 6   A.  Purely the general tone of what they were looking for
 7       and what they were seeking to find out and, hopefully,
 8       what their conclusions were likely to be, whether they
 9       would affect England and Wales as well as Scotland.
10   Q.  So by, at the latest, August 2003 the general tone of
11       your instructions was indicating to you that what was
12       being looked for was evidence of a mis-identification;
13       is that right?
14   A.  Yes, possibly, yes.
15   Q.  You already had access to Mr Wertheim's report and that
16       was the conclusion of that report.
17   A.  We didn't have access to Wertheim's report.  We had his
18       court comparisons; his presentation with his overlays.
19   Q.  I am sorry, I asked earlier on when you first received
20       Mr Wertheim's report and you had said that it had come
21       in alongside some of the other items that you had --
22   A.  No, no, we didn't receive his report, as far as I can
23       remember.  We had his core presentation with the
24       overlays.
25   Q.  Was it clear from that what Mr Wertheim's views on Y7
page 150
 1       were?
 2   A.  We didn't look at that or study it until we completed
 3       our work.  Having completed our work, made our report
 4       and then looked how he had presented his evidence,
 5       purely out of curiosity then, yes, it became apparent.
 6   Q.  The final version of your report wasn't made available
 7       until mid-2001.  At what stage did you review
 8       Mr Wertheim's material?
 9   A.  When we completed our comparison work.  I couldn't tell
10       you what day it was.  I've no idea.
11   Q.  So your position is that you were not starting from a
12       point of having been instructed that this was a
13       mis-identification?
14   A.  Not directly, no.  But the mere fact of what we were
15       being asked to do made all of us very, very aware that
16       some mishap or some mis-identification had taken place;
17       otherwise we wouldn't be asked to do the work we were
18       doing.
19   Q.  So from the very fact that you were asked you were aware
20       that this was what you were looking for?
21   A.  No, we weren't looking to see if there was a
22       mis-identification, we were applying the principles of
23       ACE-V from Y7 and QI2 to the fingerprint forms that we
24       were provided with.
25   Q.  Let us come to your examination of Y7.  Paragraph 38 in
page 151
 1       your statement refers to what has been spoken about as
 2       the damage to the mark.  You have already said I think
 3       that it didn't affect your comparison.
 4           When you're looking at a mark that has been damaged
 5       in some way, how can you tell if any detail has been
 6       obscured by that damage?
 7   A.  Purely and simply by the depth or the width or whatever
 8       it is of that damage and the significance of that
 9       damage.
10   Q.  Damage in this case was in the lower part of the mark;
11       is that correct?
12   A.  Yes, and if I remember correctly it was just a very
13       fine, white line.
14   Q.  One of the things that yourself and the SCRO
15       practitioners agree on is that the logical place to
16       start this examination was in the lower part of the
17       mark.
18   A.  Yes.
19   Q.  But, as far as you are concerned, the damage to that
20       part of the mark is insignificant?
21   A.  To me certainly, yes.
22   Q.  My question though was how do you know that when you are
23       looking at a mark that is already damaged?
24   A.  If the damage is insignificant then it is a relatively
25       low-key concept.  All of us, the three of us that were
page 152
 1       working on this, started on our own particular way and
 2       started from our own chosen starting point.
 3   Q.  How is it that you are able to assess whether damage is
 4       significant or not when you do not know what detail has
 5       been damaged?
 6   A.  But from starting at the point I started at, which was
 7       towards or near what I thought to be the core, my
 8       opinion had been formulated before I even got to any
 9       damaged area.
10   Q.  Were the photographs that you had of the mark
11       unsatisfactory, in your view?
12   A.  No, I arranged for our own photographs to be taken.
13   Q.  That's what I was going to ask.  Again, when you have
14       the mark rephotographed the mark has already been
15       damaged.
16   A.  Yes.
17   Q.  So my question has to be what value is there in having a
18       high quality photograph of a damaged mark?
19   A.  But the damage was insignificant.
20   Q.  You have said already today that you were not aware of
21       the system of illustrating independent findings of four
22       officers by way of a joint report in Scotland.
23   A.  No, we weren't.
24   Q.  Is that not something of which you ought to have been
25       aware before you began to come to your conclusions about
page 153
 1       collusion or, as you have put it, collective
 2       manipulation of evidence?
 3   A.  Not really.  Perhaps in hindsight, yes, it might have
 4       been wise to ask but at the time our main body of work
 5       was doing the comparison work of Y7 and QI2 against all
 6       the named fingerprint forms that we received.
 7           At the end of that when we decided that it wasn't
 8       it, then you were asked for what conclusions can you
 9       draw and the only conclusion we draw, in ignorance I
10       admit, were the ones that are in our report.
11   Q.  Well, a good many of the conclusions that you come to
12       seem to have been drawn from the fact that charting PC
13       enlargements were used, that identical enlargements were
14       signed by different officers and that on the enlargement
15       that was used for illustrative purposes only the top
16       part of the mark was not apparent.
17           Now, all of these things take place after the
18       analysis by the examiners, do they not?
19   A.  Yes, but I certainly wasn't aware that -- I assumed,
20       rightly or wrongly, I assumed that the four individuals,
21       the officers that you're referring to, had produced
22       their own enlargements for court.  It's only here that
23       I've recently found out that it was one production used
24       by two or three other people with their signatures on.
25   Q.  Does the final report, the 2001 report that you
page 154
 1       produced, contain enlargements separately prepared by
 2       yourself and your two colleagues?
 3   A.  No, I don't think we produced enlargements to that
 4       extent -- not for a court presentation view point.
 5   Q.  Why is it that you assumed that separate enlargements
 6       would be produced by the SCRO officers for court
 7       purposes?
 8   A.  Because that would have been the practice in England and
 9       Wales.
10   Q.  In addition to that assumption, have you assumed that
11       this took place at some stage where it would have
12       affected their opinion as to the identity of the donor
13       of the mark?
14   A.  I don't think my opinion would have changed in any way,
15       shape or form.  What I really believed was -- and my
16       colleagues agreed with me -- that each of those officers
17       had produced their own presentation and our concern was
18       that the indications and the exit lines and things of
19       that sort were drawn or exited from the exact pixel in
20       each of those four and that's where we drew our thoughts
21       and conclusions that they had colluded in some way
22       because there was no way, if four people had
23       independently prepared and presented those exhibits,
24       that the exit lines would be from exactly the same pixel
25       in each and every one.
page 155
 1   Q.  So now that you are aware that the practice was for each
 2       of these officers to carry out their own independent
 3       assessment of the mark, albeit for illustration purposes
 4       enlargements were produced for court thereafter on which
 5       all these officers signed off, is that not something
 6       that you perhaps ought to have been aware of before you
 7       assumed that they had collaborated and came to the
 8       conclusion that there was, as you put it, collective
 9       manipulation of the evidence?
10   A.  Perhaps in hindsight but at that time we weren't
11       encouraged to ask too many questions.  Our role was
12       purely and simply to examine what had been done by SCRO,
13       find our own conclusions and then a long way after that,
14       well, certainly weeks after that, offer explanations as
15       to why that had happened.
16           That final part, offering explanations as to why
17       certain things had happened, was not part of our initial
18       remit.
19   Q.  Why is it you say you weren't encouraged to ask too many
20       questions?
21   THE CHAIRMAN:  My LiveNote has stopped again.  I am sorry to
22       interrupt you, Mr Holmes.
23           It might be wise if we took the ten minute break now
24       and that would allow them an opportunity to cure the
25       problem.  I think others have the same.  So we will stop
page 156
 1       now until 3.10 or as soon as it is fixed thereafter.
 2   (3.00 pm)
 3                         (A short break)
 4   (3.12 pm)
 5   THE CHAIRMAN:  Normal service is resumed.
 6   MR HOLMES:  Thank you, sir.
 7           I think before the break, Mr Sheppard, my last
 8       question was why is it that you say you were encouraged
 9       not to ask too many questions by the Mackay team?
10   A.  Purely from the inference that I took that Scott
11       Robertson's Inquiry was in its infancy and our role was
12       purely and simply to compare the mark on the wooden
13       doorframe with whatever number of fingerprint forms that
14       were put in our or sent to our possession.
15   Q.  Who was it who encouraged you not to ask too many
16       questions about what you were doing?
17   A.  Well, there weren't many questions I would want to ask
18       anyway, if I'd known I was ask to free to ask any.  At
19       that time it appeared we had a very simplistic task:
20       compare the mark on the wooden doorframe with the given
21       number of fingerprint forms that we were going to
22       receive.
23   Q.  So aside from Mr Wertheim's productions and your own
24       conclusion that you were being asked to look into
25       something where there had clearly been some kind of
page 157
 1       problem, you had no indication that you were looking
 2       into an alleged error?
 3   A.  Yes.  Obviously, I mean, that came into my mind and the
 4       minds of my colleagues that something remiss had taken
 5       place.  What it was was of no concern to me, quite
 6       honestly.
 7   Q.  But you had no indication other than those items that I
 8       have mentioned that that's what you were doing?
 9   A.  No, no indication.
10   Q.  There is a letter that you mention in your statement
11       that was written by Harry Bell, who was, at the time,
12       head of SCRO, in response to Mr Wertheim distributing
13       photographs and he was quite critical of that and he has
14       explained why.
15           When is it you saw that letter?
16   A.  I saw a copy of it that had been sent to the Durham
17       Constabulary Fingerprint Bureau and visiting that Bureau
18       on one occasion I was asked had I seen this letter from
19       SCRO.  I said, no, I hadn't.  Would I like to see it and
20       I literally glanced through it very, very quickly and my
21       recollection of the letter was that SCRO were standing
22       by the decision that they had made and that was all the
23       significance I added to it.
24   Q.  When was it you saw that letter?
25   A.  I've no idea.  I couldn't tell you the date.
page 158
 1   Q.  Again, was it before or after you began work on Y7?
 2   A.  I really don't know; I don't know.
 3   Q.  You included in your analysis of Y7 an area in the top
 4       part of the mark.  Now, yesterday we heard Mr Kent say
 5       that Mr Wertheim's approach, which was the same (he also
 6       used some of the top part of the mark), was a simplistic
 7       approach and was potentially, according to Mr Kent's
 8       statement, was misleading to the jury in that he
 9       identified three or four characteristics from the top
10       part of the mark and said that as a result of those
11       characteristics not being present in the known mark it
12       could not be an identification.
13           What comment do you have to make on Mr Kent's
14       characterisation of that approach as simplistic and
15       potentially misleading?
16   A.  I don't really have any comments.  I never studied Pat
17       Wertheim's court presentation in any great depth or, I
18       have to say, with any particular great interest and my
19       colleagues didn't either.  That was something that
20       Wertheim had presented.  We hadn't -- I hadn't seen
21       presentations in that manner before, not applying to
22       fingerprints anyway.  So it really wasn't of great
23       relevance to us.
24   Q.  The context in which Mr Kent was being asked that
25       question was his own view that Y7 was the result of a
page 159
 1       double touch.  You've made your opinion on that clear,
 2       that you believe the mark to be a single touch.
 3   A.  I do.
 4   Q.  And you account for the distortion in the top part of
 5       the mark by pressure?
 6   A.  Yes.
 7   Q.  Rather than movement?
 8   A.  Yes.
 9   Q.  Mr Kent's answer, as I understand it, where he described
10       Mr Wertheim's approach as simplistic and potentially
11       misleading was critical of the fact that Mr Wertheim too
12       is of the opinion that this is a simple single touch.
13           I take it you refute anything that Mr Kent has to
14       say on the matter?
15   A.  I presume so.  I didn't hear Mr Kent's evidence and I've
16       no idea of what his true opinions are.
17   Q.  His opinion was given yesterday, which is that to view
18       this as a simple, single touch and to present that as
19       evidence in court is, as he put it, simplistic and
20       potentially misleading to the jury.
21           What do you have to say about that?
22   A.  I don't have very much to say and I don't see why it is
23       potentially misleading to a jury.  If your opinion is
24       that it is a single touch, then fine, unless somebody
25       else comes along and disagrees with you and can prove to
page 160
 1       you that it is more than just a single touch.
 2           Pressure distortions can be quite effective to a lay
 3       person or somebody not particularly trained in
 4       fingerprints and can vary opinions quite widely.  But
 5       once you're trained to look for these aspects, then I
 6       believe they are very easily recognisable.
 7   Q.  I take it you would agree that Mr Kent's not a lay
 8       person for these purposes?
 9   A.  I don't know.  I know Mr Kent does an awful lot of
10       research into the digital photography, the chemical
11       procedures applied to developing fingerprints, but what
12       actual fingerprint training he has I'm totally ignorant
13       of.
14   Q.  You were asked earlier on by my learned friend,
15       Mr Smith, about some of the SCRO officers' examination
16       of the mark and one of the answers you gave when it was
17       put to you that one of these officers took five minutes
18       to look at the mark is that five minutes seems like an
19       incredibly short period of time to examine something of
20       this nature.
21   A.  Yes.
22   Q.  I take it since it's perhaps a difficult mark you would
23       imagine a longer period would be justified in examining
24       it?
25   A.  If you are going to do the process properly and
page 161
 1       professionally then, yes, five minutes is certainly not
 2       long enough.  You can spend 5 or 6 minutes easily with a
 3       mark like this, in a situation like this, on a wooden
 4       doorframe, purely and simply analysing what you are
 5       going to look for, what is visible in that mark.
 6   Q.  So it would be improper and unprofessional to take such
 7       a short period of time analysing the mark?
 8   A.  Yes, really, yes.  Although that individual was
 9       obviously quite satisfied that they had given it due
10       regard in that timescale.
11   Q.  If an individual were to be satisfied in perhaps 60 or
12       90 seconds they were capable properly to analyse this
13       mark I take it, therefore, your view would also be that
14       that is an improper and unprofessional approach?
15   A.  It's certainly not an approach I would take or would
16       recommend.
17   Q.  I know it may sound facetious but if you add to those
18       circumstances the fact that an individual may admit to
19       having looked at the mark in poor light having had a
20       couple of drinks, again, that would be a rather improper
21       and unprofessional approach to analysing this mark?
22   A.  Yes.
23   Q.  How long did it take you to look at it?
24   A.  I've no idea.  I mean, I didn't time it but a
25       considerable amount of time in that if you apply a
page 162
 1       proper analysis to something, then you're not just
 2       looking at the fingerprint that is revealed in the
 3       photograph, you're looking at the type of photograph,
 4       the developing agent, contamination that may have taken
 5       place, its position on whatever the article might be.
 6       So that there are a great many factors that I would want
 7       to be satisfied I could reach a conclusion on or
 8       certainly a hypothesis, then it would take as long as it
 9       took and I really couldn't tell you.  But it was some
10       considerable time.
11   Q.  At the end of that analysis, you offered an opinion not
12       only on the mark itself but on the approach taken by the
13       officers of SCRO?
14   A.  Yes.
15   Q.  Eventually you offered an opinion on that.
16           You offered the opinion that there had been
17       collective manipulation and you offered the opinion that
18       there had been gross incompetence or pure fabrication.
19           Now in relation to the first of these will you
20       accept now that was done on the assumption that the
21       officers had done their work collectively because the
22       images were prepared collectively?
23   A.  Yes.  I assume that they had all individually analysed,
24       compared and made their own evaluations.
25   Q.  If that were the case, your opinion that there had been
page 163
 1       collective manipulation of the evidence would be
 2       ill-founded?
 3   A.  Knowing what I know now, that it had been produced on a
 4       computer of some sort and only one copy was made or one
 5       original and then three copies with names added to it,
 6       then I would perhaps change my opinion on that.  I would
 7       have to.
 8   Q.  The other comment that was made was that there would
 9       either be gross incompetence or pure fabrication.
10       Again, I take it the fact that the charting PC was
11       something that was used to produce enlargements and
12       these images weren't something that were used in the
13       course of analysis is something that might now change
14       your opinion?
15   A.  My opinion on the original identification made either
16       with photographs or a comparator will stand.  I really
17       don't understand or comprehend how four individuals
18       could arrive at what I consider to be an erroneous
19       identification.
20   Q.  Then do you understand how not only those four
21       individuals but the defence experts employed by both
22       Mr Asbury and Ms McKie came to the same conclusion?
23   A.  I have no explanation for that.  I'm not aware of any
24       opinions that those people, whoever they might be,
25       formulated.
page 164
 1   Q.  But were you aware that Mr Asbury employed in his
 2       defence a fingerprint expert by the name of Mr Graham?
 3   A.  I wasn't, no.
 4   Q.  And if there is evidence, in due course, that Mr Graham
 5       supported the findings of SCRO in relation to Y7 you've
 6       no reason to suggest that that was as a result of any
 7       kind of collusion?
 8   A.  I've no idea.  I've never heard of the name "Graham".
 9   Q.  If you are told that Mr Swann was employed, in fact, I
10       think you are aware that Mr Swann was originally
11       employed by Ms McKie as part of her defence and again
12       agreed with SCRO's analysis of Y7, clearly that can't be
13       part of any kind of arrangement on their part either,
14       can it?
15   A.  No.
16   Q.  So how do you account for the fact that two original
17       defence experts in this case agreed with the finding of
18       SCRO?
19   A.  I can't offer an explanation, I'm afraid.  One, Graham I
20       didn't know and Peter Swann I've met very briefly on two
21       occasions.  As to their competence I have no idea
22       whatsoever.
23   Q.  In relation to your approach to fingerprint examination
24       in general, you state that there were only in this
25       particular mark three characteristics in sequence and
page 165
 1       agreement.
 2           How few characteristics in sequence and agreement
 3       can you identify a fingerprint on?
 4   A.  I don't think you can play the numbers game at that
 5       particular time.  I think I mentioned yesterday very
 6       briefly that you make your evaluation that it is
 7       identical or it is not identical and only then do you
 8       consider the number of points that you've found, really
 9       supporting your evaluation.  So numbers really don't
10       come into it until right at the end of the evaluation
11       process.
12   Q.  So is it fair to say on the basis of that answer that
13       the non-numeric system should make absolutely no
14       difference to the number of identifications made, they
15       should all be the same.  It's just they might be perhaps
16       explained to the jury differently than they would have
17       done under the 16-point system?
18   A.  Absolutely.
19   Q.  In fact, is it fair to say that under the non-numeric
20       system that the lowest or the fewest number of points in
21       sequence and agreement that one could identify a
22       fingerprint on is none?
23   A.  I really can't -- I don't see how you could possibly
24       make an identification or a conclusion with no
25       characteristics.
page 166
 1   Q.  Is it possible to make an identification on third level
 2       detail alone?
 3   A.  Yes, we do it or the service does it now.  Certainly not
 4       me.
 5   Q.  So is it possible for sufficient third level detail to
 6       be apparent in a mark without necessarily having any
 7       second level characteristics in sequence and agreement?
 8   A.  No, I think you'd need the second level detail to
 9       determine that you are actually looking at a
10       fingerprint.
11   Q.  Paragraph 68 in your statement refers to officers
12       preparing enlargements together.  I think I have already
13       asked you about that.  I will move on.
14           Paragraph 71 states that you would often be told by
15       SCRO students that they would pass very difficult marks
16       to senior officers.
17   A.  Yes.
18   Q.  Once again in relation to your conclusions that there
19       had been some kind of collective manipulation, how does
20       that square with the fact that junior officers would
21       seek advice on particularly difficult marks from senior
22       officers?
23   A.  Purely and simply that at the National Training Centre
24       we practised and preached good practice in all
25       situations.  One of the criteria of students attending
page 167
 1       that Centre was they had to demonstrate their
 2       decision-making abilities and we would not accept a
 3       little note detached to a comparison that had taken
 4       place, "Insufficient detail for me to make a decision.
 5       Would pass this to a senior level", the reason being
 6       that when they become experts that procedure might not
 7       be available to them.  If they are the only expert there
 8       on duty at 10.00 at night and a decision has to be made
 9       whether somebody is released or kept in custody, then
10       they have to have and to have demonstrated that ability
11       that they can to make decisions.  So we reprocated(sic)
12       the fact that students from Scotland would put a note on
13       things and we'd say, "No, sorry, not sufficient, not
14       satisfactory.  Go away, make a decision".
15   Q.  In fact, you would perhaps encourage junior experts to,
16       where appropriate, question the findings of senior
17       experts; is that right?
18   A.  Certainly, yes.
19   Q.  Mr Bell has given evidence already that that was the
20       approach that was taken within the Glasgow Bureau.  Is
21       that something that you're aware of?
22   A.  I don't know what their procedures were, quite honestly.
23   Q.  Paragraph 76 and 77 in your statement mention a
24       six-point standard or a minimum of six points being
25       acceptable to officers in the Glasgow Bureau.  Where did
page 168
 1       you get this information from?
 2   A.  From the students.  We were moving in England and Wales
 3       towards a nonnumerical system from -- when -- the '90s
 4       and it took an absolute eternity.  Scotland still
 5       maintained a 16-point standard and that's really what we
 6       were trying to import to students, both England and
 7       Wales and Scotland, that eventually Scotland might go
 8       the same way as we were south of the border and that
 9       numbers no longer applied and then we started leading
10       into that with various courses that we ran.  Well,
11       right, what sort of numbers do you use now?  What's
12       relevant to you?  What is the number you require to make
13       an identification?  And then you would hear various
14       things from various bureaux in England and Wales at the
15       time as well, eight or ten, and then that would be
16       considered to be an identification -- not satisfactory
17       to present at court.
18           But then, you know, the comments were made, Ah, but
19       if it's an elimination then we don't apply those same
20       standards, six will do.
21   Q.  So these are anecdotal accounts from people who were, at
22       the time, in training?
23   A.  Yes.
24   Q.  And there's nothing more concrete than that that you are
25       basing --
page 169
 1   A.  No, certainly nothing more concrete.
 2   Q.  There was a letter produced to one witness this week
 3       which has purportedly been authored by a Mr Luckcraft.
 4       Are you aware of this individual?
 5   A.  Yes, I am.
 6   Q.  Do you know where he is now?
 7   A.  Sorry?
 8   Q.  Do you know where he is now?
 9   MR MOYNIHAN:  I can give the answer to that.  We have an
10       address for Mr Luckcraft, so I won't invade
11       Mr Sheppard's privacy.
12   A.  No, I haven't met or communicated with Mr Luckcraft for
13       5/6 years.  He came to Durham on a computer course.
14       That was the only time I'd met him for, I don't know,
15       15 years.
16   MR HOLMES:  Thank you very much.
17   THE CHAIRMAN:  Mr Macpherson?
18   MR MACPHERSON:  No, thank you, sir.
19   THE CHAIRMAN:  Miss Grahame?
20   MISS GRAHAME:  No, thank you, sir.
21                    Re-examined by MR MOYNIHAN
22   Q.  I have three points, Mr Sheppard, just on that last
23       point whether Mr Luckcraft was the individual you
24       mentioned in paragraph 73 and 74 of your statement.  I
25       understand he was because a telephone call was placed to
page 170
 1       you earlier this week when Mr Bell was giving evidence.
 2   A.  Yes, he was.  We were colleagues in Manchester before I
 3       left Manchester in 1990.  I don't think he'd qualified
 4       as an expert at that time.
 5   Q.  It's okay.  I was just wanting the name because we can
 6       take up the matters that you mention in paragraph 73 and
 7       74 with him in due course.
 8           There are two other points that I wanted to ask you
 9       about, please.  One was to resolve perhaps an ambiguity
10       in a question that led to an answer that you may not
11       have intended.
12           If I can take you back, at least for my purposes to
13       page 136 of the transcript -- you will just have to bear
14       with me -- you were being asked by Mr Holmes, who is the
15       gentleman who last asked you some questions, about
16       having checked Y7 against a number of other individuals
17       and I will just tidy up this point on the way.
18           You mentioned that you had compared Y7 against some
19       300 or so other individuals.
20   A.  I'm not sure of the exact number but I know there were a
21       considerable number of fingerprint forms to compare by
22       the time that we were looking to complete our remit.
23   Q.  Were those elimination print forms provided to you by
24       Mr Robertson and his colleagues on the Tayside Police
25       investigation?
page 171
 1   A.  They were indeed, yes.
 2   Q.  The particular question that you were asked -- and I
 3       just wonder if there was an ambiguity in it --
 4       specifically out of that total population of 300 we
 5       have, for our own reasons, had an interest in a Mr Gray,
 6       a Gary Gray.  You don't now remember whether Mr Gray was
 7       in that 300 or not?
 8   A.  He was on the -- when the person came to my home to take
 9       a statement from me, the name was mentioned then and I
10       looked through the paperwork that had been sent to me
11       and that name was on that list.  But when we were doing
12       the exercise, that name meant absolutely nothing to me
13       whatsoever.  It was just one of many.
14   Q.  So Mr Gray was one of the 300 or so on the list?
15   A.  Yes, and no more significant than that to me.
16   Q.  In fact, the ambiguity was that Mr Holmes asked you in
17       this connection about you having compared the list.  He
18       asked you:
19           "Would Mr Gray have been eliminated as a possible
20       donor of Y7?"
21           To which you answered:
22           "No, he wasn't; nobody was."
23           I suppose the ambiguity is what was intended by the
24       word "eliminated".
25           This is the ambiguity: if Mr Holmes had meant
page 172
 1       eliminated in the sense of matched or identified as the
 2       donor, then you would say, no, he was not?
 3   A.  He was not, no.
 4   Q.  If Mr Holmes had intended to use "eliminated" in a sort
 5       of legal sense in this respect: Mr Gray was someone who
 6       you discounted as not matching and therefore --
 7   A.  We matched nobody from an identification process out of
 8       that whole vast number of fingerprints.
 9   Q.  So if I use the word "eliminated", just in the sense of
10       you excluded him from an investigation because he was
11       not a possible match --
12   A.  Absolutely.
13   Q.  -- that would explain the answer that you gave?
14   A.  Yes.
15   Q.  I am grateful.
16           The final point is just for completeness.  Mr Holmes
17       asked you about your own report (that is the National
18       Training Centre report) and the enlargements that were
19       attached to it.  If I can just bring up CO2003; do you
20       recognise that?
21   A.  Yes.
22   Q.  As the cover sheet of your report in June 2001?
23   A.  Yes, I have a copy of it here, yes.
24   Q.  In fact, since I have no criticism at all of joint
25       reports, can you confirm what was lodged as the final
page 173
 1       report was indeed a joint report of yourself plus your
 2       three colleagues?
 3   A.  Two colleagues.
 4   Q.  That would be Mr Thomson and Mr Gregg.
 5   A.  Yes.
 6   Q.  And, in fact, to illustrate your conclusions you
 7       produced a number of appendices which would be
 8       enlargements with chartings of markings.  I'm looking,
 9       for my purposes, at appendix 1.  On the PDF it's page 9.
10       It will be just brought up for you on the screen so you
11       can see.
12   A.  Thank you.
13   Q.  Appendix 1 is a mark Y7 showing the first level detail
14       ridge flow and second level detail of the actual ridge
15       features.  So if I understand it correctly appendix 1 is
16       the first part of the ACE-V process marking up on the
17       print Y7 the features that you regarded as significant
18       potential characteristics?
19   A.  Yes.
20   Q.  In fact, would it be correct if I look through the
21       appendices, in the joint report what you and your
22       colleagues have done is produce one illustration common
23       to all three of you of the points that are being
24       discussed in the report?
25   A.  Yes.  It was Mr Thomson who produced it.
page 174
 1   Q.  So Mr Thomson produced it and you as a co-signatory of
 2       the report were happy to agree with the production he,
 3       Mr Thomson, had prepared?
 4   A.  Yes, absolutely.
 5   Q.  That would be true of the other appendices in the
 6       report?
 7   A.  Yes.
 8   MR MOYNIHAN:  Sir, I have no further questions.
 9   THE CHAIRMAN:  There are a couple of things I wanted to ask
10       you about.
11           At paragraph 71 of your report or your statement you
12       referred to the culture of the SCRO and how you noticed
13       that, with a difficult mark, the SCRO students would
14       often say they wouldn't draw their own conclusions but
15       would pass it to a more experienced officer.
16           Where we speak of students, of course, am I right in
17       understanding that these are people who have actually
18       done quite a bit of work on fingerprints?  They don't
19       come as novices, so to speak?
20   A.  They do come as novices, sir, yes.
21   THE CHAIRMAN:  But have they not -- I mean, some people come
22       and do a week's training or a course --
23   A.  If I can explain, the foundation course is of four
24       weeks' duration and we had or I had people attending who
25       had been inside a bureau for three, four, five months
page 175
 1       waiting for an opportunity to attend a course and other
 2       students who had never even seen the fingerprint bureau
 3       that they were going to be working in.  So, you know,
 4       quite a variety and range of knowledge really and
 5       understanding of what they were going to be doing.
 6   THE CHAIRMAN:  Then would some people come back under your
 7       tuition, others would come back to do courses, more
 8       advanced courses?
 9   A.  Yes, certainly.  I mean, there is an intermediate course
10       which we would recommend somebody had at least two
11       years, possibly three years within a Fingerprint Bureau
12       and they would come back to us for three weeks and then,
13       finally, an advanced course where it is all about court
14       presentation and decision-making.  That was three weeks
15       but I think it's now been reduced to two.
16   THE CHAIRMAN:  If my recollection is right, the SCRO
17       fingerprint experts, they might come and do the
18       intermediate course.
19   A.  Yes, never the advanced.
20   THE CHAIRMAN:  Never the advanced?
21   A.  No.
22   THE CHAIRMAN:  Did you notice anything, any difference in
23       their ability when it came to the intermediate course
24       from other sources of student?
25   A.  No.  In general terms, I considered them to be
page 176
 1       well-versed and well-trained at that stage of their
 2       career.
 3   THE CHAIRMAN:  That really leads me on to the next question
 4       which is that it appears that after this problem had
 5       arisen, that all the fingerprints that had been examined
 6       and reported on that were still coming before the courts
 7       or had recently I think come before the courts, a great
 8       number of them were examined by others, not within SCRO.
 9   A.  Yes.
10   THE CHAIRMAN:  And that none of them were found to be
11       incorrect or inaccurate, the findings?
12   A.  I heard that it a team from Northern Ireland was
13       assessing and looking at other cases that had been
14       prepared and presented by SCRO but I'm not aware of
15       whatever their findings might have been.
16   THE CHAIRMAN:  No, if you assume for a moment that I'm
17       correct and the finding was that none of them were found
18       to be lacking, that would, would it not, seem to suggest
19       that there wasn't any general incompetence if they got a
20       very large number scrutinised by another an outside body
21       and found to be accurate?
22   A.  I don't believe there was incompetence there, really.  I
23       saw no suggestion of it.
24   THE CHAIRMAN:  What I'm anxious about is when you described
25       it as gross incompetence, whether one is speaking of an
page 177
 1       isolated -- now isolated, of course, has to include in
 2       your view two cases, but, other than that, the
 3       suggestion would be that there was no widespread
 4       incompetence?
 5   A.  No.
 6   THE CHAIRMAN:  -- and that would accord with your own
 7       impression.
 8   A.  I found most of the students, if not all of the students
 9       from SCRO, were well-trained, well-versed and looking
10       forward to demonstrating their abilities to the training
11       team in Durham.
12   THE CHAIRMAN:  The other topic which is quite different that
13       I just wanted your assistance with, was the comparator
14       something that was used at all at Durham?
15   A.  Comparators were made available to students and we, as
16       instructors, often used them, certainly up until 2003
17       when we came into the digital age and had had the
18       ability to use a camera and blow a fingerprint up on a
19       large screen.  Prior to that, the only way we could
20       really demonstrate to a student was by them sitting next
21       to us, pointing out what they think they saw and what
22       was in agreement and then us offering opinions and
23       demonstrating, perhaps, why it wasn't or offering more
24       characteristics to say why it was.
25   THE CHAIRMAN:  It seemed to me that the comparator, it's
page 178
 1       introduction -- whether it was successful or not -- was
 2       quite a step because up to then it was what you saw
 3       through the lens, whereas --
 4   A.  Yes or from a photographic enlargement, sir.
 5   THE CHAIRMAN:  Or an enlargement.
 6   A.  Oh, yes.
 7   THE CHAIRMAN:  But this was something where you could see
 8       the two sitting there and --
 9   A.  Absolutely, side-by-side.
10   THE CHAIRMAN:  Was there any protocol about how it should be
11       used?
12   A.  Not that I'm aware of, no -- within a Fingerprint
13       Bureau, you mean?
14   THE CHAIRMAN:  Within a bureau, yes.
15   A.  No, not that I'm aware of.  It was an ideal training
16       tool.  How it was applied in a Fingerprint Bureau I
17       really have no idea.
18   THE CHAIRMAN:  I was going to ask you whether in the
19       training school there would also have been advice about
20       the correct procedure with it; in other words, you
21       should wipe off everything that anybody else had seen?
22   A.  That went -- yes, absolutely -- yes, part of best
23       practice.
24   THE CHAIRMAN:  That's the way it would have been taught in
25       the school?
page 179
 1   A.  Yes, you don't do it this way when you go back to
 2       bureau.  If you are going to demonstrate to somebody
 3       what your opinion is and how you have evaluated
 4       something, you put it on a comparator if that is the way
 5       you wanted to demonstrate it when you satisfied
 6       yourself, you wipe everything off and then ask somebody
 7       else to come and view it.
 8   THE CHAIRMAN:  But the comparator should be the last -- the
 9       first way is to look at it through the glass or a lens
10       and then if you were doing an examination, the
11       comparator would not be used as the first step?
12   A.  No, certainly not, no, no.  The comparator only offered
13       you a limited amount of information, you know, from what
14       could go on to a very, very small aperture at the top of
15       the screen to have a light shown through it.  So it was
16       very limiting in that respect.
17   THE CHAIRMAN:  So it had limited value really.
18   A.  Yes.  Yes, certainly.
19   THE CHAIRMAN:  Thank you very much.  I am obliged to you for
20       accommodating us and I hope we haven't kept you so late
21       you can't get home now.
22   A.  I'm going home tonight.  That's the main thing.  Thank
23       you very much indeed.
24   THE CHAIRMAN:  Thank you.
25                     (The witness withdrew)
page 180
 1   MR MOYNIHAN:  I apologise; we may have to finish early.  We
 2       have no further witnesses today.
 3   THE CHAIRMAN:  I think we can live with that.
 4           Now, the programme for tomorrow if you could just --
 5   MR MOYNIHAN:  If you will allow me just a second.
 6           Sir, the programme for tomorrow is two of three
 7       witnesses who I would have called are available.
 8       Mr Shields, who I think holds the record for having been
 9       called to hold most often and sent away again --
10   THE CHAIRMAN:  I think we will definitely get to him.
11   MR MOYNIHAN:  -- first thing before we're arrested and taken
12       in custody in Hamilton, and then after him Malcolm
13       Graham.  So those are the only two witnesses and I have
14       a number of loose ends to complete of witnesses whose
15       statements I propose to take as read but not call and,
16       of course, there is of course the great revelation about
17       Gary Gray's fingerprints having been checked yet again
18       with negative result to deal with.
19           So I have some loose ends to tidy up tomorrow
20       morning and two witnesses.
21   THE CHAIRMAN:  Well, we will assume that we will sit to 4.30
22       tomorrow unless we finish earlier; in other words, keep
23       the option open because we might be able to complete
24       this week's evidence tomorrow.
25   MR MOYNIHAN:  Given that there are only two witnesses, I
page 181
 1       would very much hope that we could complete the evidence
 2       tomorrow.  It is obviously dependent on the
 3       cross-examination of Malcolm Graham, who is an important
 4       witness.
 5   THE CHAIRMAN:  We will see how that works out.  So 10.00.
 6   (3.50 pm)
 7        (Adjourned until 10.00 am the following morning)
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