page   1
 1                                        Thursday, 9th July 2009
 2   (10.00 am)
 3   THE CHAIRMAN:  Do you wish to take an oath or affirm?
 4                     WILLIAM SHIELDS (sworn)
 5   THE CHAIRMAN:  Could we have your full name for the record,
 6       please.
 7   A.  William Shields.
 8   THE CHAIRMAN:  Take a seat, please, Mr Shields.
 9                     Examined by MR MOYNIHAN
10   Q.  Good morning, Mr Shields.
11   A.  Morning.
12   Q.  You have available to you a copy of your statement?
13   A.  Yes, I do.
14   Q.  I think just for the record I will do, as I have done to
15       you on a number of occasions, just apologise to you for
16       the inconvenience you have endured in being brought to
17       this hall and not used before.
18   A.  That's fine.
19   Q.  I think today we will complete your evidence.
20           I want to ask you some specific points in your
21       statement but one point I want to take up I think we
22       have made an error in completing your statement.  You
23       have had an opportunity to read your own statement and
24       you are generally satisfied what is set out is the
25       truth?
page   2
 1   A.  Yes.
 2   Q.  What I want to begin with was correct a gremlin but
 3       perhaps more importantly take a little bit of time over
 4       something.  If I take you to paragraph 34 of your
 5       statement, we can see that in line one of paragraph 34
 6       there's a reference to a statement from Norman Gibb to
 7       the Mackay team and then, thereafter, some references
 8       for others to Norman Gibb and I want to look at the
 9       principal documents this passage is concerned with
10       because the reference to Norman Gibb may indeed be a
11       mistake.
12           But perhaps if I look more importantly on the point
13       that you were being asked about, if I could bring up
14       please two documents side-by-side CO0288 and CO0292.  It
15       will probably be the third page of each of these
16       documents, I suspect -- second page.
17           I think what you are being asked about in this
18       section are statements by yourself and a statement by
19       Mrs Cardwell, Detective Constable Cardwell, as she was
20       then.  I have brought up on the screen on the left-hand
21       side CO0288 which bears to be a statement by Shirley
22       Cardwell dated 17th January 199 and the last digit is
23       missing but it will be 1997 and on the right-hand side a
24       statement by yourself of the same date.  The point that
25       was being put to you was that these statements appear to
page   3
 1       be not only the same in their text but indeed the
 2       handwriting is the same.
 3   A.  Yes.
 4   Q.  I understand that in fact you are the writer of both of
 5       these statements?
 6   A.  I'm the author, yes.
 7   Q.  We will come back to that pair just in a moment but the
 8       other two documents which are of the same type to be put
 9       up side-by-side CO0287 -- again, presumably if we go to
10       page 2 -- and then CO0291.  Again, do we see bearing to
11       be statements by DC Cardwell and yourself dated 21st
12       January 1997.  In fact, the text is the same and you
13       again are the author of both statements?
14   A.  Yes.
15   Q.  The first point I wanted to ask you about just generally
16       is how it would come about that you would be the author
17       of statements for not only yourself but for one of your
18       colleagues?
19   A.  That was just a matter of expediency.  What happens is
20       at a major inquiry you get a HOLMES action to submit a
21       statement.  I know these look important now but then
22       these were mere administrative matters.  The first
23       statement was covering the fact that our names appeared
24       in the log and it was just a statement to cover why you
25       had been at the house and the second statement was just
page   4
 1       a preliminary statement of your actions up to that
 2       certain point in that inquiry.
 3   Q.  Sometimes we have been familiar in seeing papers from
 4       the police where there are two officers, one
 5       corroborating the other.  One officer will write a full
 6       statement and the second one will write, "I corroborate
 7       Mr Shields' statement".  Why was this done just as, in
 8       effect, it would seem almost photocopying the narrative?
 9   A.  What you referred to, the other officer saying, "I
10       corroborate in full", that's matter of or then was
11       matters of a summary procedure.  In matters of solemn
12       procedure, that wasn't acceptable.  It had to be a full
13       corroborative statement, if you like, rather than just
14       that notation that I could corroborate in full.
15   Q.  Go back to the first pair which are CO0288 and CO0292,
16       page 2 in each case.  By Friday 17th January 1997, we
17       know Constable Cardwell to have left the Marion Ross
18       murder inquiry?
19   A.  Yes.
20   Q.  May it be that she would have no knowledge of a
21       statement in relation to the visit on 9th January, to
22       which this relates, having been requested from her?
23   A.  When the action comes out, although the action for that
24       would be to Shirley, it would actually come to me
25       because I was still on the inquiry and she wasn't so it
page   5
 1       would be, what we call, on my board, if you like, be on
 2       my clipboard along with other actions.  It was just to
 3       get it off the board.  That statement took about two
 4       minutes to write.  So it's just as easy to, if you like,
 5       batter out another one at the same time.
 6   Q.  So it may be that she was not aware of this statement
 7       having been created in her name?
 8   A.  I'm sure I'd have let her know.  In fact, she'd probably
 9       get a photocopy of it but I would have -- by the time
10       she knew I'd have done it, if you know what I mean.  I
11       would have said, "I've done that statement for you and
12       there's your copy".
13   Q.  It doesn't matter which one I take but if I perhaps take
14       the one on the right which is in your own name -- they
15       are in fact both the same -- what I'm interested in is a
16       particular passage in this note.
17           Now, as you say, at the time, on Friday
18       17th January, do I take it that since you've completed
19       this you said it was self dictated at a time 09.50 on
20       Friday 17th that one can assume that this is written by
21       you at approximately that time on that day?
22   A.  Yes.
23   Q.  You regarded it as a matter, at that time, it was of an
24       administrative nature?
25   A.  Yes.
page   6
 1   Q.  You were explaining the fact that you would have been
 2       logged as attending the house on 9th January 1997?
 3   A.  Yes.
 4   Q.  And you were explaining the circumstances in which you
 5       came to be at the house on that occasion?
 6   A.  Yes.
 7   Q.  You explain that that was after you had spoken to
 8       Mr Kinnaird and what you were trying to understand is
 9       how the doors were arranged in the porch area because
10       there was, as I understand it, a query that in fact one
11       of the three doors was found locked immediately when
12       people first attended the scene and Miss Ross' body was
13       found and the puzzle was how could the doors be locked.
14   A.  Yes.  My understanding was there was no forced entry and
15       Mr Kinnaird to gain entry to the house had to unlock
16       certain doors.  The way the house was, there was three
17       doors, if you like, you had to get through before you
18       actually got into the hall and it was just to
19       determine -- if the doors were locked, no forced entry,
20       then whoever killed Miss Ross had obviously locked the
21       doors after them and had taken the keys with them and it
22       was to determine what type of keys for the locks, if you
23       like, you would have to go through to gain entry to the
24       house.
25   Q.  So you were looking to see if it was simply a Yale and a
page   7
 1       mortice --
 2   A.  A Yale and a mortice and how many.
 3   Q.  Sorry?
 4   A.  And how many, whether there was two mortice and one Yale
 5       or what have you.
 6   Q.  What I want to do is on the one that is on the screen
 7       just now, which is the 0292, bring up the third page of
 8       that document and if we could put that just to the
 9       right-hand side and if we could highlight on the
10       left-hand screen, you will see that you have written:
11           "As part of the inquiry I was instructed to
12       re-interview the witness Alan Kinnaird in particular in
13       relation to which door he unlocked on entering
14       Miss Ross' house.  After obtaining a further statement
15       from this witness about 19.45 hours that evening I
16       returned to the porch area of the dwelling-house at 43
17       Irvine Road, Kilmarnock, in order to clearly establish
18       the doors referred to by the witness.  During the visit,
19       I remained within the porch area, touched no surfaces
20       within the house, and stood on the metal plates placed
21       within the area by officers of the identification
22       branch."
23           You left at 19.47 hours.
24   A.  Yes.
25   Q.  First of all, to be clear, on that visit on 9th January
page   8
 1       you did not proceed beyond the porch?
 2   A.  No.
 3   Q.  You didn't proceed into the house itself?
 4   A.  No.
 5   Q.  And Constable Cardwell, now Ms McKie, was with you?
 6   A.  Yes, she was.
 7   Q.  And she did not proceed any further into the house than
 8       you did?
 9   A.  I was in fact further in than she was.  She was on the
10       kind of plate behind me, if you like.
11   Q.  What I'm interested in, in what is otherwise, as you
12       say, an administrative statement to explain the fact
13       that you were at the locus on the 9th and what you were
14       doing is why you saw reason to write that you touched no
15       surfaces.
16   A.  My assumption for being asked to submit a statement in
17       the first place was the fact that our names appeared in
18       the log and my assumption was that (a) to cover that and
19       (b) to cover if, for example, your print -- we didn't
20       realise that then but should your print actually be
21       found in the locus, if you know what I mean.
22   Q.  The reason I am asking is there has been some question
23       raised in the Inquiry about whether senior officers
24       were, from an early date, interested in the possibility
25       that a police officer or someone involved in the police
page   9
 1       investigation may have left a print at the scene.  This
 2       is a very early date.  This is 17th January and you were
 3       actually writing positively you did not touch any
 4       surface.
 5           Were you aware when you wrote this statement of
 6       senior officers being interested in the possibility of a
 7       police officer's print being at the scene?
 8   A.  No, not at all.  In fact, I was totally unaware and I'd
 9       forgotten completely I'd written this statement until I
10       was precognosced for this inquiry and all the inquiries
11       subsequent to what's happened I've not seen these
12       statements.  That was a complete surprise to me.  I'd no
13       recollection that I'd actually written one for Shirley,
14       but it's definitely my writing and I have done it.  But,
15       no, at that time I knew nothing about anybody
16       considering that a police officer may have left
17       anything, any print or any other trace in the house or
18       whatever.
19   THE CHAIRMAN:  Would an officer normally sign a statement or
20       is that not the practice?
21   A.  We do now, sir, but things have changed over the years,
22       if you know what I mean.  To be honest, I'm not sure
23       what we did then in 1990 ... if we've signed the
24       statements then we would have.  If we've not then, no,
25       it wasn't a matter of course.
page  10
 1   THE CHAIRMAN:  I don't think we have seen the end of your
 2       own statement as to whether you've signed it.
 3   A.  Well, I've seen the bottom of that page and it's not
 4       been signed, so ...
 5   THE CHAIRMAN:  Yes, but that's Shirley Cardwell's statement
 6       so you wouldn't have signed it.
 7   A.  No, I wouldn't have signed that.
 8   THE CHAIRMAN:  But your own, I'm not sure whether you signed
 9       it.  Do we have that?
10   MR MOYNIHAN:  We have brought up the two pages of
11       17th January statement and, as far as we can see, you've
12       not signed it.
13   A.  I've not signed it, no.
14   Q.  But, in fact, it is in your own handwriting?
15   A.  Yes.
16   Q.  And if we look also at the Ms McKie statement, 0288, we
17       will find that it's also not signed by her.
18   A.  Yes.
19   Q.  In fact, indeed as I've said to you about the photocopy,
20       if we bring up 0288, the last page of it and keep up --
21       in fact it may well be there just now -- do we have on
22       the right-hand side 0292 and on the left-hand side 0288?
23   A.  Yes.
24   Q.  You see, in fact, why I find it confusing they are in
25       fact identical --
page  11
 1   A.  Yes, they are.
 2   Q.  -- it would seem.
 3           Also to answer the Chairman's question, if I bring
 4       up CO087 and CO291 and go to the last page of each of
 5       these, again we see that they're identical down to the
 6       point where the label is mentioned halfway down the
 7       text, there's the interlineation of one word on each of
 8       the two and neither is signed?
 9   A.  No.  I believe they are signed now -- if you submit a
10       statement now, you sign it.  But obviously in 1990(sic)
11       you didn't need to.
12   Q.  If I move on, because there's another occasion I want to
13       ask you about, a separate visit.  You have talked about
14       9th January.  I want to move 11th January and if I could
15       bring up for that purpose a statement CO0289, and if we
16       just move to the first page of the statement.
17           Mr Shields, do we see that this is a statement
18       written by you?  Is it a statement in your handwriting?
19   A.  Yes, and that's signed.
20   Q.  And on this occasion it is signed.
21   A.  Yes.
22   Q.  If I assist I also have a typed statement, if you could
23       put this to the right or left as is convenient, a typed
24       version of the same, CO0285, and perhaps just go to the
25       first text, you will see that what is now brought up on
page  12
 1       the right-hand side, 0285, if you simply look at some of
 2       the beginning of the text I will read the typed and you
 3       just read the manuscript and we will see that they are
 4       the same.  It begins:
 5           "I have completed 20 years Police Service.  I have
 6       previously supplied statements to the incident room.
 7       About 18.10 on Wednesday 8th the body of Marion Ross was
 8       found ...", et cetera.
 9           So it seems to be just a typed version of the same
10       statement.
11   A.  Yes.
12   Q.  The only reason I have brought up the typed version is
13       that the typed version gives us what is missing from the
14       manuscript, namely the date.  This is the statement you
15       prepared on 14th February 1997.
16   A.  Right, yes.
17   Q.  I think from your statement you will be aware that by
18       14th February 1997, there was an allegation that -- if I
19       call her now the name I refer to her as -- Ms McKie had
20       been in the house and had touched the door surface at
21       the bathroom?
22   A.  Yes.
23   Q.  You were tasked with writing a statement by senior
24       officers, in fact, relating to your whole involvement in
25       this matter?
page  13
 1   A.  Yes.
 2   Q.  Plainly by this stage you had had some involvement with
 3       senior officers visiting the locus, visiting the house?
 4   A.  Yes, I did, yes.
 5   Q.  And you knew by now it was extremely serious?
 6   A.  Yes, I did.
 7   Q.  In fact, the very fact you were signing a statement
 8       would support the view it was extremely serious?
 9   A.  Well, as I say, not signing the other ones, I think I
10       was probably told to sign it, write it and sign it, I
11       think -- probably.  That's why that one's signed and the
12       other ones haven't been.
13   Q.  When you say you were told to you mean you were
14       instructed?
15   A.  Yes.
16   Q.  And you would understand by that that senior officers
17       were saying to you, "Mr Shields, this is serious"?
18   A.  Yes, this was an extremely grave matter.
19   Q.  If I turn to page 5 of that manuscript document, I just
20       want to look at it in the way you wrote it and, indeed,
21       signed the document.  It says 11th February.  If I look
22       halfway down it's written that:
23           "I returned to 43 Irvine Road, Kilmarnock, on
24       Saturday 11th February 1997.  At the request of the
25       office manager Inspector Thomson.  DC Cardwell and I
page  14
 1       attended to uplift the log of persons attending the
 2       locus ..."
 3           What I want to do is ask you about the attendance at
 4       the house to uplift the log?
 5   A.  That must be an error, actually.  It should be 11th
 6       January.
 7   Q.  So it's just an error.  It should be 11th January not
 8       11th February but it's a Saturday?
 9   A.  Yes.
10   Q.  What I want to do is to look at what you actually wrote.
11       So you.
12           "... attended to uplift the log of persons attending
13       the locus in order that it may be photocopied.  The time
14       of our attendance would have been about 17.45."
15           That is what you yourself have written?
16   A.  That's what I've written, yes.
17   Q.  If I can then bring up just the next section:
18           "On this occasion, I drove to the locus, parked
19       outside, and remained in the police vehicle, while
20       DC Cardwell uplifted the log.  I watched DC Cardwell
21       enter the porch area and within seconds reappear with
22       the log.  I returned to Kilmarnock Police Office where
23       the log was photocopied."
24           I understand you were in a police vehicle parked
25       outside the house?
page  15
 1   A.  Yes.
 2   Q.  But do you now have a recollection of this or are you
 3       dependent on the statement that you wrote at the time?
 4   A.  I've been asked about this, obviously, on many occasions
 5       and I see I've written -- my recollection is that
 6       Shirley took the length of time I would have expected
 7       her to take to go in, explain to the log keeper that she
 8       had to take the log from him, why, and that she would
 9       return it and come back out.  When I say "seconds" --
10       I've obviously said "seconds" there.  It would obviously
11       take more than 20 seconds to explain that to the officer
12       at the scene.  So I've been asked on many occasions but
13       my recollection is it never took any longer than I would
14       have considered it normal to do that.  I don't recall
15       saying to her when she returned, "What kept you", or
16       words to that effect, if you know what I mean.
17   Q.  One of the other reasons, forgive me, there's been a
18       dispute in detail amongst some officers about quite how
19       far she progressed even on that day, whether she entered
20       the porch or remained on the step outside.
21           Do you have today a recollection of whether you saw
22       her enter the porch or are you dependent on what you
23       wrote in this statement?
24   A.  I'm dependent again, I see I've said there I watched her
25       enter the porch area but I would imagine -- I mean, if
page  16
 1       my timing's right there, it's quarter to six at night on
 2       a January day.  I would imagine the officer taking a log
 3       isn't going to be standing outside when there's a porch
 4       area for him or her to challenge anybody who enters the
 5       property, if you like.
 6   Q.  I'm grateful to you because that's rationalising what
 7       you written there, but as to what you actually recall
 8       seeing --
 9   A.  As to what I recall, I understand this is a very
10       important thing now but then it was a favour, it wasn't
11       even an action, it was, "If you're passing the locus
12       could you nip in and get us the log to get it
13       photocopied and start putting it through the HOLMES
14       system".  It was done as a favour.  Then you never
15       thought anything of it, that it was going to be an
16       important visit, if you like, to that locus.
17   Q.  It continues because plainly she uplifted the log, took
18       it to Kilmarnock Police Office and then you drove her
19       back to the house to drop it off again?
20   A.  Yes.
21   Q.  You will see in relation to the last five lines or so
22       that again what you wrote was that you thereafter
23       returned to 43 Irvine Road Kilmarnock and DC Cardwell
24       returned the original log to the officer within the
25       porch area.
page  17
 1           "Again, she was within the porch area for only a
 2       matter of seconds."
 3           Then these were the only occasions you were at 43
 4       Irvine Road, presumably the statement carries on?
 5   A.  Yes.
 6   Q.  Again, if I'm asking for your recollection do I take it
 7       from what you said earlier you don't have a precise
 8       recollection of the sequence of events on the return?
 9   A.  No.  Again, that's what I've written at that time but
10       you've got to remember you're writing that on
11       14th February from that manuscript, which is the date
12       that it's all blown up, if you like, and it's as much a
13       shock to me as it is anyone else that Shirley's
14       fingerprint has allegedly been found inside that
15       location because I couldn't think of a time when that
16       could have happened.
17   Q.  What I am trying to take are two different points.
18       First of all, the most important point is the one that
19       is obviously uppermost in your mind.  You were with her
20       throughout this investigation down to 14th January and I
21       take it, as far as you are concerned, first of all, when
22       you were at the house she did not proceed beyond the
23       porch?
24   A.  No.  No, in fact, as I said, I was further in than
25       Shirley was.  We were on the metal tread plates and
page  18
 1       there's only room for one on them and she's behind me,
 2       she's on the tread plate behind me.  At no time did she
 3       get in front of me to the porch.
 4   Q.  So far as the Saturday 11th January you wrote at the
 5       time that she did enter the porch area?
 6   A.  Yes.
 7   Q.  But from the timings you would not assume that she had
 8       had an opportunity to do anything other than collect the
 9       log which was her task that day?
10   A.  Yes.
11   Q.  That's fine.
12           In addition, therefore, to signing that police
13       statement, just for completeness, if I take you to an
14       account of the trial of Mr Asbury, it is CO0215, PDF
15       page 82.
16           Just before I ask you to look at any particular
17       passage you plainly gave evidence as a witness at the
18       Asbury trial?
19   A.  I did, yes.
20   Q.  And you were asked in the course of that trial about the
21       matters I have just discovered?
22   A.  Yes.
23   Q.  In fact, this is an account recorded at the time by
24       Inspector Carroll who was a police observer at the
25       trial.  Section 109 deals with your own evidence.  You
page  19
 1       were then Detective Sergeant Shields and we're going to
 2       look at 109.1 and 109.2.  109.1 relates to the first
 3       attendance on 9th January.
 4   A.  Yes.
 5   Q.  When it would seem that you said under oath as recorded
 6       here what you have told us today, namely that on
 7       9th January you and Constable Cardwell entered the
 8       porch, checked the doors, a process that took
 9       approximately four minutes.
10   A.  Yes.
11   Q.  Then in 109.2 you were asked about the second visit to
12       collect the log.
13   A.  Yes.
14   Q.  What you told the court under oath was that you uplifted
15       the log with Constable Cardwell, you saw her enter the
16       porch, uplift the log and return to the vehicle.  You
17       were certain the log was away no more than 20 to 25
18       minutes and you drove Constable Cardwell back, who again
19       entered the porch, handed over the log and returned to
20       the police vehicle?
21   A.  Yes.
22   Q.  So again consistent with what you have written in your
23       manuscript note.
24   A.  Yes.
25   Q.  If I can just be quite clear about this, in paragraph 60
page  20
 1       to 61 of your statement to this Inquiry, you do
 2       record -- I will give you a chance just to read it
 3       again.  (Pause)
 4   A.  Yes.
 5   Q.  You do record that you fell out with Constable Cardwell
 6       at a stage in the course of this investigation.
 7   A.  Probably a disagreement, yes.
 8   Q.  Of course if I can put it this way: it's in a sense
 9       natural, is it, that if -- if -- it was her fingerprint
10       on the doorframe she was now suggesting, as an
11       explanation, that colleagues in the police force had
12       planted her fingerprint.
13   A.  Yes.  Her stance had moved -- her initial stance was it
14       wasn't her print, it couldn't be her print, she couldn't
15       possibly have left it to then, if it was her print, it
16       had been somehow planted.  She didn't say by whom but it
17       had somehow been planted in that location.
18   Q.  Presumably the allegation that a print had been
19       deliberately planted in the context of a murder
20       investigation, it would be an extremely serious matter?
21   A.  Being planted in any investigation it would be extremely
22       serious.  I wasn't sure even if it could physically be
23       done, as I said there, but I did ask, "Why would anybody
24       jeopardise any inquiry to plant your print".
25   Q.  The reason I want to just come to that end position is
page  21
 1       you were the colleague with Constable Cardwell during
 2       her period from --
 3   A.  On the inquiry.
 4   Q.  And the police terminology was her neighbour?
 5   A.  Yes.
 6   Q.  By this stage, it might be thought that this is placing
 7       you, personally, in a rather awkward position if you are
 8       supporting her in saying she had not been as far as the
 9       door into the bathroom, you are at least indirectly, not
10       intentionally but indirectly, putting the emphasis on
11       the possibility that somebody else may indeed have
12       planted the fingerprint.
13           Do you see that point?
14   A.  No.  I'm supporting her contention that when I was there
15       she could not possibly have left that print but I wasn't
16       supporting any contention that it somehow got there by
17       any other means other than physically being left there
18       by the person who's print it was.
19   Q.  I think I may have been causing you undue anxiety.  What
20       I was suggesting was despite knowing that you had fallen
21       out with her and despite knowing an extremely serious
22       allegation was being made that if it was indeed her
23       print it was planted, you have consistently adopted the
24       position that Ms McKie did not proceed beyond the porch
25       to your knowledge?
page  22
 1   A.  Yes.
 2   Q.  And as far as you are aware she did not have the
 3       opportunity to proceed beyond the porch?
 4   A.  Well, I don't know about that.
 5   THE CHAIRMAN:  You can only speak to your own --
 6   A.  When I was there, yes --
 7   THE CHAIRMAN:  -- when you were present.
 8   A.  When I was there, no.
 9   MR MOYNIHAN:  That's fine.  That is the position you adopt
10       even though you fell out with her due to the
11       implications of that.
12   A.  Yes.
13   Q.  If I can then just ask you a couple of other details
14       please, one is a detail and the other is a more
15       important matter of substance.  At paragraph 46 you
16       refer to the fact of double gloving of officers.
17   A.  Yes.
18   Q.  Please, I don't want to stretch your memory beyond what
19       is there.  Do you recollect that by the time of the
20       Marion Ross investigation it was known that there was a
21       possibility of fingerprints being left through latex
22       gloves and, therefore, the advice was to double glove at
23       the scene of a crime?
24   A.  I remember the memo coming out about double gloving.
25       When exactly, I'm not too sure.  If I was guessing I
page  23
 1       would say it would be prior to '97, prior to this
 2       murder.
 3   Q.  You are saying it is guessing so I can take it this way
 4       then: that your best recollection would be that it would
 5       be before 1997 but you're not certain?
 6   A.  Yes.
 7   Q.  The final point I want to do is I want to take you to
 8       paragraph 54 on page 18 of your statement.
 9   A.  Yes.
10   Q.  This is really taking you to the point after you have
11       written your statement on 14th February, by the time
12       that you realise it's very serious, there had been a
13       number of attempts to check the fingerprint, you
14       yourself had been with Constable Cardwell back at the
15       house to see if some explanation could be found.
16           What you write in paragraph 54, if I just take it
17       through, you referred to a statement that you gave to
18       the Mackay team and the statement has you recorded as
19       saying:
20           "DCI Heath remarked that if our position [that's you
21       and Constable Cardwell's position] in relation to the
22       fingerprint did not change both Constable Cardwell and
23       [you] would be finished."
24           Do you recollect, even today do you recollect
25       Detective Chief Inspector Heath having said that to you?
page  24
 1   A.  Yes, yes.
 2   Q.  As I've said, we have covered it in a different angle,
 3       but you have not changed your position despite that
 4       having been said to you?
 5   A.  No, I've not, no.
 6   Q.  You then say your recollection in that statement would
 7       be correct and it's the next sentence I would like you
 8       to explain.  You say:
 9           "I believe at the time I was one of the few
10       individuals who was seeing the whole picture in relation
11       to this issue, not only for the individuals concerned
12       but also for the murder trial."
13           What do you mean by the "whole picture"?  What was
14       it you were seeing as the implications of what by then
15       had occurred?
16   A.  Where we are now, here.  Obviously, there was a
17       dispute -- the whole trial hinged on fingerprint
18       evidence, if you were going to throw doubt about the
19       fingerprint evidence then that was potentially fatal for
20       that trial and for any conviction and, obviously, the
21       fall-out from that would have led to dire consequences,
22       I think, for all involved.
23   Q.  Dire consequences would include dire consequences for
24       you as one of the officers, perhaps?
25   A.  Oh, yes.
page  25
 1   MR MOYNIHAN:  I have no further questions.  Thank you, Mr
 2       Shields.
 3   THE CHAIRMAN:  I will ask you first, Mr Smith?
 4   MR SMITH:  I have no questions, sir, thank you.
 5   THE CHAIRMAN:  Mr Holmes?
 6   MR HOLMES:  There are two matters that I would like to
 7       expand on, sir.  The first is access or potential access
 8       by Ms McKie to the house at Irvine Road and the second
 9       relates to the discussions that Ms McKie and Mr Shields
10       had following the accusation that she had left her
11       fingerprint there.
12   THE CHAIRMAN:  Yes, you can touch on both of them.
13                   Cross-examined by MR HOLMES
14   Q.  Mr Shields, the first part of the question on access I
15       would like to ask about relates to Saturday 11th
16       January.  That's the occasion on which you attended with
17       Ms McKie to collect the log.
18   A.  Yes.
19   Q.  You said that you had taken her there and you had parked
20       the car on Irvine Road itself.  Is that right?
21   A.  Yes.
22   Q.  But you don't remember how long you were there for?
23   A.  I don't remember exactly how long we were there for.
24   Q.  Whilst you were parked in the car you could not see
25       Ms McKie within the house; is that right?
page  26
 1   A.  I've obviously said at the time I saw her enter the
 2       porch but my recollection now, as I said, it's an
 3       important matter now but then it's a mere favour, if you
 4       like, so ...
 5   Q.  Do you remember how far from the house you managed to
 6       get parked?
 7   A.  I think directly outside, I would think.
 8   Q.  Is Irvine Road a busy road?
 9   A.  It's a main thoroughfare from, obviously -- well it's
10       the old road, if you like, from Kilmarnock to Irvine but
11       it's the main thoroughfare from Kilmarnock through to
12       Crosshouse.
13   Q.  So there was traffic running in both directions?
14   A.  Yes.
15   Q.  Are there cars parked on both sides of the road on any
16       given day?
17   A.  Mainly -- there's more houses on the odd number side, if
18       you like, where Marion Ross resided so more often
19       there's cars parked there than the other side.
20   Q.  It's been suggested perhaps that it's a place that's
21       used to park cars if there happens to be football on?
22   A.  Yes, it would be handy for Rugby Park.
23   Q.  Do you recall if there were cars parked on that
24       Saturday?
25   A.  No, I don't actually.
page  27
 1   Q.  Do you recall if there was football on that Saturday?
 2   A.  Yes, if there was football on -- I don't even know if
 3       Kilmarnock were in the Premier League then.  I'm not
 4       sure.
 5   Q.  Do you recall having to drive around for any length of
 6       time before you found a space to park?
 7   A.  No.
 8   Q.  The second part that I would like to ask you about
 9       access is in relation to the keys to Irvine Road.  If
10       you could have a look at document CO1419 for me, please,
11       and move on a page, this is the record of a particular
12       production of the keys for Irvine Road being signed out
13       and you will see that on 9th January they were signed
14       out to DC Cardwell (Ms McKie) and signed back in ten
15       minutes later and, again, on 12th January they were
16       signed out to DC Cardwell (Ms McKie) and again signed
17       back in later.
18           The only question I want to ask about that is there
19       any good reason that Ms McKie would have to have keys
20       tor Irvine Road at any point during this inquiry?
21   A.  I wasn't aware of the ones on the 9th, the signing out,
22       to be honest.  I know about the other ones and Shirley
23       had come to me she'd been given an action to again go
24       and see Mr Kinnaird, to return him to 43 Irvine Road
25       with the keys and have him physically go through the act
page  28
 1       of unlocking the doors.  I didn't think that was a good
 2       idea.  Mr Kinnaird at that time -- he wasn't a suspect
 3       but he was what we call a TIE (trace, interview and
 4       eliminate), eliminate him from the inquiry.  I didn't
 5       think it was a good idea to reintroduce him before he
 6       had been eliminated, if you like, to the locus.  So I
 7       went to DCI Heath, raised my concerns and he agreed with
 8       me, so that action was rescinded.
 9   Q.  You yourself say that you thought that was not a good
10       idea.  Was it you that put a stop to the idea of going
11       to see Mr Kinnaird with the keys?
12   A.  Well, I'd already spoken to Mr Kinnaird and had him
13       mentally go through that scene and that's the reason we
14       went to the porch and looked at the doors.  (a) I didn't
15       see the value of having him physically go through that
16       and (b) he wasn't eliminated at that point from the
17       inquiry.  There was no forced entry to the house and he
18       had possession of a set of keys.  Although he wasn't a
19       suspect he still had yet to be eliminated from the
20       inquiry and I didn't consider it a good idea to
21       reintroduce him, if you like, to the locus at that
22       point.
23   Q.  But it's not something that was done in the event?
24   A.  No.
25   Q.  I think you've said that you don't know of any reason
page  29
 1       why Ms McKie would have had the keys on the other
 2       occasion that they were signed out.
 3   A.  No, I'm unaware of that.
 4   Q.  The second matter I would like to ask you about is the
 5       discussion you had with Ms McKie following the point at
 6       which you were asked about her fingerprint being found.
 7           You have said that you recollect that being on, I
 8       think, 12th February you had a discussion?
 9   A.  It was definitely a Wednesday, yes.
10   Q.  What was said between you at that point in time?
11   A.  It was actually our days off and we'd been asked to come
12       in because DCI Heath was wanting to change the shift
13       pattern of the CID and wanted everyone to come in for a
14       discussion.  So afterwards I'd went across to a local
15       pub with a couple of others.  Shirley joined us later
16       and had explained that, subsequent to the meeting about
17       the shift pattern and coming to the pub, she'd been told
18       by DI McAllister, he was a DI at that time, that her
19       print had been found in 43 Irvine Road and she had said
20       that, obviously, that was impossible, you'll need to
21       check again and that was the discussion.
22   Q.  Was there some speculation about a tin that you and
23       Ms McKie had seized elsewhere?
24   A.  Yes.  During the course of the inquiry we had occasion
25       to attend at a house in Kilbirnie and there we found
page  30
 1       like a Marks & Spencer's Penny Bazaar tin, if you know
 2       what I mean, containing a substantial amount of money.
 3       Obviously, we didn't realise the significance of that
 4       tin at that time and we weren't gloved and had touched
 5       that.  Later in the inquiry that tin became far more
 6       significant so our initial theory then was that if her
 7       print had been found, somehow had been found on the tin
 8       but -- I didn't know what SCRO did -- but somehow
 9       mis-catalogued, if you know what I mean, and they'd got
10       it mixed up on where it had been found.  That was your
11       theory, was it probably had come from the tin and
12       through some administrative error it had been logged as
13       being found in the locus rather than on the tin.  That
14       was our great theory at that point.
15   Q.  Do you recall when you found that tin?
16   A.  I think it was the Tuesday, which would have been
17       14th January.
18   Q.  And you yourself don't know when the fingerprint Y7 was
19       found, of course?
20   A.  No, I don't, no.
21   Q.  Whose suggestion was it that Ms McKie's fingerprint
22       might have been found on the tin rather than in the
23       house?
24   A.  That might have been my theory.
25   Q.  Standing what's gone on, how do you feel about that?
page  31
 1   A.  No very clever actually.
 2   Q.  There was an action generated in relation to that tin on
 3       the HOLMES system.  You have said initially that you
 4       hadn't realised the significance of the tin.  If I show
 5       you the action it's on CO1688 and it's on page 10 of
 6       that document.  It is the top entry there and I think it
 7       is dated 29th January.  It relates to -- sorry, it's the
 8       one above that.  It relates to various matters but there
 9       is an entry there that says:
10           "Subject report to PF -- re parade, money and shape
11       in dust ..."
12           Is that something you recall relating to that tin?
13   A.  No.
14   Q.  It's not something that caused you to realise the
15       significance of the tin?
16   A.  No, I've never seen that action.
17   Q.  Okay, I won't ask you any further about that.
18           One further question and it's something that I
19       didn't ask you in relation to access to the house.  You
20       said that you don't recall it taking any particularly
21       great length of time to find a space outside the house
22       to park and that you don't recall Ms McKie taking any
23       longer than you would have expected to retrieve the log
24       in the house.
25           That having been said, you weren't asked about how
page  32
 1       long it took until some time after the event, were you?
 2   A.  That's right, yes.
 3   Q.  So is it possible that your recollection of that is not
 4       entirely clear?
 5   A.  Yes, as I said, it really wasn't an important thing at
 6       the time we done it.  Obviously, it's got real
 7       significance now but you have to understand at the time
 8       it was really a favour rather than an action that you
 9       actually took notes of, when you attended, when you
10       left, things like that.  It was really -- it was a
11       really a favour from the office manager Jim Thompson who
12       says, "If you're passing could you call in, get the log,
13       bring it back".  So, as I say, it wasn't even an action
14       that come out from the HOLMES that you had to complete,
15       if you know what I mean.
16   MR HOLMES:  I've no further questions.  Thank you.
17   THE CHAIRMAN:  Are there any other applications?
18   MISS GRAHAME:  No, thank you, sir.
19   THE CHAIRMAN:  Mr Macpherson?
20   MR MACPHERSON:  No, thank you, sir.
21                    Re-examined by MR MOYNIHAN
22   Q.  There's a point of detail.  If you allow me just a
23       second. (Pause)
24           Just to take up one point where the suggestion is
25       that what we at least at present see on the screen of
page  33
 1       your evidence may not, in fact, have been what you said
 2       so just to avoid any difficulty about it.
 3           Mr Holmes who has just been asking you some
 4       questions, asked you about Ms Cardwell having had access
 5       to keys on a number of occasions.
 6   A.  Yes.
 7   Q.  It may be that you recollect her having access to keys
 8       only once and not on the second occasion, on the 12th?
 9   A.  No, on the 12th, yes -- on the 9th no.
10   Q.  So you recollect her having access to the keys on the
11       12th but not on the 9th?
12   A.  Yes.
13   MR MOYNIHAN:  Thank you very much.
14   THE CHAIRMAN:  Just one question: you of course in the
15       course of your enquiries came on this connection with
16       Mr Asbury so you would have been particularly interested
17       in that aspect of it.
18   A.  Yes.
19   THE CHAIRMAN:  You came on the tin which you've described,
20       that's the Marks & Spencer's tin with the London omnibus
21       on it.
22           When you went subsequently to the house, which you
23       did do, at Irvine Road were you looking for any
24       connection between that tin that you had found and
25       anywhere it might have come from in that house.
page  34
 1   A.  At Irvine Road, sir?
 2   THE CHAIRMAN:  Yes.
 3   A.  We didn't -- which visit, sir?
 4   THE CHAIRMAN:  My understanding is that you went to Irvine
 5       Road on 21st January.
 6   A.  Yes.
 7   THE CHAIRMAN:  And you had found the tin prior to that?
 8   A.  Yes, we had, yes.
 9   THE CHAIRMAN:  So what I'm wondering is, having found the
10       tin at Mr Asbury's address, whether you were trying at
11       all to connect it with address at 43 Irvine Road?
12   A.  Not at that time, sir.  The visit on 21st January was we
13       were going to detain a suspect the following day and it
14       was to familiarise ourselves -- I was going to be the
15       detaining and interviewing officer -- it was to
16       familiarise myself with the layout for the house at
17       43 Irvine Road should anything be said during the
18       interview which you could then challenge, if you like.
19           At that stage we weren't trying to place -- look for
20       the tin, if you like, where it could possibly have come
21       from.
22   THE CHAIRMAN:  That's what I was wondering, were you, but
23       you weren't, in fact.
24   A.  No, no.  It was just a familiarisation visit.
25   THE CHAIRMAN:  Thank you very much and I apologise again.
page  35
 1       We've put you to a lot of inconvenience coming here.
 2       You have been very helpful.  Thank you very much.
 3                      (The witness withdrew)
 4   MR MOYNIHAN:  Before I call the next witness, who is
 5       Mr Malcolm Graham who is in the hall, I have been passed
 6       a note myself that says that Mr Bruce who is the final
 7       witness I had at the blind test who I thought was absent
 8       through illness may in fact be available after all to
 9       give evidence.
10   THE CHAIRMAN:  Today?
11   MR MOYNIHAN:  Today and, accordingly, what I have asked is
12       that he come for 1.50 this afternoon.  I apologise to
13       all concerned they've not had any notice of his
14       attendance.  No doubt we can deal with the implications
15       of this a little later but I have just been passed a
16       note that he may be available after all.
17   THE CHAIRMAN:  Well, he was on the agenda originally.
18   MR MOYNIHAN:  But I had announced yesterday afternoon he was
19       not available but apparently he may be available after
20       all.
21   THE CHAIRMAN:  Unless there is some real difficulty, if we
22       can take him, I would prefer to complete that part of
23       the evidence.  If it causes any real problem then that
24       can be explained to you maybe at the break.
25           Mr Graham next.
page  36
 1   MR MOYNIHAN:  Yes.
 2                      MALCOLM GRAHAM (sworn)
 3   THE CHAIRMAN:  Your full names please.
 4   A.  Malcolm Graham.
 5   THE CHAIRMAN:  Take a seat, please.
 6                     Examined by MR MOYNIHAN
 7   Q.  You may need to keep the microphone just a little bit
 8       closer to you.  We will find out as we progress but we
 9       find it's not quite so sensitive so you always need to
10       be speaking directly into it.
11           Mr Graham, you provided a statement to the Inquiry?
12   A.  I did, yes.
13   Q.  And you have a copy of that with you?
14   A.  I have.
15   Q.  If you would bring it out because you may actually need
16       to refer to it from time to time.  This is a statement
17       that you signed and that you were happy when you signed
18       it was an accurate recollection of your involvement in
19       this matter?
20   A.  I was happy when I signed it and sent it off.  I wasn't
21       so happy after I read the transcript of this hearing,
22       that there's quite, in my opinion, quite an error in the
23       transcript and it made my -- just correcting my
24       statement wouldn't have corrected the transcript.
25   Q.  If we start there then, what I was going to say then, as
page  37
 1       I generally say to witnesses is as we proceed through
 2       your statement if there are any matters that you would
 3       wish to correct in your statement please feel free to do
 4       so because what we want is your best evidence rather
 5       than worrying about the accuracy or any error in the
 6       original statement so you can correct your statement as
 7       we proceed.
 8           If it is a matter that's giving you some concern,
 9       what is the matter?
10   A.  Correcting my statement would not correct the --
11   Q.  I appreciate that.  Sorry, I will start again.  I am
12       quite happy, as we proceed and we will look at some of
13       the paragraphs.  I say this to all the other witnesses.
14       If there's anything in your statement you wish to
15       change, then feel free to do so.
16           The separate matter is a reference in the transcript
17       that you wish to comment on.  Can you tell me which
18       witness it is and which transcript that you want us to
19       look at.  Do you have a note.
20   A.  The transcript of the evidence page 14/59 afternoon
21       session on 3rd June.
22   Q.  If you allow me just a second, please.  Did you say day
23       14?
24   A.  Page 14.
25   Q.  What day of --
page  38
 1   A.  3rd June.
 2   THE CHAIRMAN:  Could you repeat the reference again, please.
 3       Page --
 4   A.  Page 14/59, my Lord, the afternoon session.
 5   MR MOYNIHAN:  What is the point, Mr Graham?
 6   A.  The particular point is it starts off dealing with
 7       expert reports by Graham, Rokkjaer and Rasmusson.  The
 8       Lord Advocate had said the Crown would commission an
 9       independent review of the fingerprint.  Sheriff Crowe
10       says this: under reference to his letter of
11       6th July 2000 he stated that the Crown instructed
12       Mr Graham, that's me I take it, to carry out a review
13       and obtain a report from him dated 23rd June 2000.
14       Sheriff Crowe is not sure if it was appreciated at that
15       time that I had a previously involvement.  However, he
16       says the report was not of great quality.
17           The points arising from this passage is that I was
18       never instructed to carry out the review by the Crown
19       Office Appeals Unit.  I do not recall sending a report
20       dated 23rd June 2000 to the Crown Office.  The Crown
21       Office really wouldn't need a copy of my report because
22       they would already have a copy from the trial papers and
23       the defence team.
24           The matter about the review and Sheriff Crowe's
25       comment on my report was discussed at the Crown Office
page  39
 1       sometime between June and July.  I was interviewed by
 2       Tayside officers on 17th July --
 3   Q.  If I can just stop you for a second, it's only the speed
 4       at which you are speaking just now.
 5   THE CHAIRMAN:  It's just make sure that we can record what
 6       you are saying accurately.
 7   A.  Sorry.
 8   MR MOYNIHAN:  That's okay.  If I can just stop.  We will
 9       work back and I will let you read out -- because you
10       have obviously written something that it would be easier
11       for you to read out.  So if I understand it correctly
12       what you have read is from the opening statement and
13       what the opening statement is doing is giving an
14       account.  It's simply repeating the evidence that we
15       understood would be given by the now Sheriff Crowe and
16       you are saying that that summary of his evidence is
17       inaccurate --
18   A.  Yes.
19   Q.  -- from your recollection.
20           So the point which Sheriff Crowe had made in very
21       loose terms was that at some stage the Crown Office
22       instructed you to provide a report on the fingerprints
23       for the benefit of the Crown Office and you are
24       indicating that you did not prepare a report for the
25       Crown Office.  Is that correct?
page  40
 1   A.  That's absolutely correct.  I did not carry out a review
 2       of the evidence.
 3   Q.  I will go back and let you read what you prepared but
 4       let us just be clear: do you have no recollection of
 5       providing any copy of your report to the Crown Office?
 6   A.  I've no recollection of that.
 7   Q.  Is it possible that you did provide a copy of your
 8       report to the Crown Office?
 9   A.  It is possible, yes, but that would be my original
10       report drafted in 1997, certainly not a report of a
11       review.  It would be my original report, if I supplied
12       any to them.
13   Q.  That's fine.  So if you supplied anything it would be a
14       copy of your original report dated from your involvement
15       in the Asbury case?
16   A.  Yes, that's correct.
17   Q.  And would not have been the basis of a subsequent
18       re-examination of the material?
19   A.  It certainly was not a review of any material.
20   Q.  With that, if you wish just to read out what you had
21       started, please just feel free to do so but if you
22       could, for our benefit, read it a little bit more
23       slowly.
24   A.  I certainly would like to make a comment because I was
25       interviewed by Tayside officers for the Mackay Inquiry.
page  41
 1       I was interviewed by them on 17th July and, again, in
 2       September 2000.  If I had carried out a report of a
 3       review at the time I was interviewed by these people I
 4       would have known about it, I would have had a clear
 5       memory of that.  The Tayside officers did not ask me for
 6       a copy of this report that Sheriff Crowe thought I had
 7       provided.
 8           Mr Crowe states in his spiel that my report was not
 9       of great quality.  If he had a copy of my first 1997
10       draft I would agree that there were several errors in
11       that draft and that it would be termed poor, but in the
12       transcript as he does not matter factual errors in my
13       report I assume he had a copy of the second draft
14       prepared a week or two after the original draft.
15   Q.  It's not necessary to go quite so slowly.  Are you
16       finished?
17   A.  No, not quite.  I would just like to make one small
18       amendment that I don't like people saying things that
19       people can't back to on them and Mr Crowe or Sheriff
20       Crowe's comment that my report was not of great
21       quality -- that must be legal jargon, I think, and I'm
22       not just quite sure what it means -- but bad, poor or
23       useless do not prefix "not of great quality" but good,
24       very good and useful do and I would like to find out
25       just what his meaning of "not of great quality" was.
page  42
 1           That's me finished, apart from just pointing out
 2       just editing my statement will not delete this Crown
 3       Office Appeals Unit record that we've got.
 4   Q.  If you allow me just a moment.  (Pause)
 5           What I, in fact, want to do Mr Graham is to look at
 6       copies of your report to pick up some of the
 7       differences.  In fact, I have available to me four
 8       copies of your reports with different dates and if I
 9       come to the last one that I have just to show you what
10       we have, if I begin with a document CO2753.  You may not
11       have this.  It will come up on the screen just to your
12       left-hand side.
13           CO2753 is a copy of a statement that you gave to the
14       Tayside Police, that's to Detective Chief Constable
15       Mackay's Inquiry.
16   A.  Yes.
17   Q.  You may not have seen this at the time.  I don't know,
18       it may be something that we showed you in asking you to
19       prepare your statement, but if I go to the end of that
20       document you will see that this is a statement that was
21       noted from you apparently on 17th July 2000.
22   A.  Yes.
23   Q.  I think you may recollect that you did indeed see the
24       officers from the Tayside Police on that day?
25   A.  That's correct, yes.
page  43
 1   Q.  If I then go back in this document to page 2 of that
 2       document, this is a statement that a police officer
 3       noted from you on 17th July 2000 and you will see the
 4       last line of text has "prod no" -- so production
 5       number -- copy of written report.  Do you see that?
 6   A.  Yes.
 7   Q.  Immediately above that what the officer has written as
 8       recording what you have said is:
 9           "I have subsequently supplied copies of this report
10       to the Crown Office Appeals Unit, in relation to David
11       Asbury and to the HMCIC in relation to Shirley McKie."
12           Then it says:
13           "I also supplied a production copy written report
14       [and then if we go over the page] to CID officers on
15       17th July 2000."
16           So it refers to you having given a copy of the
17       report on 17th July 2000 to CID.  Here it is recorded by
18       the police in July 2000 that you had given a copy of
19       your report --
20   A.  I did, yes.
21   Q.  -- not only to them but to the Crown Office Appeals
22       Unit.
23   A.  That's the part I couldn't remember.  I certainly gave
24       one to the HMCIC and I gave one to the Tayside Police.
25       I don't recall the Appeals Unit, but I may have done.  I
page  44
 1       may have posted them a copy.
 2           But the point I was making is they were talking
 3       about a separate review report.  I certainly did not do
 4       a review and I didn't send them a report on a review.
 5   Q.  That is fine.  This may in fact be where the two
 6       different accounts come together.  You are saying you
 7       did not do a separate review for the Crown Office unit
 8       but it may be -- it may be and I will show you
 9       something -- it may be that you in fact did provide a
10       copy of your original report to the Crown Office?
11   A.  If I was asked for one, I would have sent one, yes.
12   Q.  If we just go back through the documents, the one of
13       17th July 2000, if I could have brought up on screen
14       SG0368, and if you proceed to page 2, do you recognise
15       what is on the screen as the first page of a report by
16       you?
17   A.  Yes, it is, yes.
18   Q.  And we will see just in the bottom right-hand corner a
19       date of 17th July 2000?
20   A.  Yes.
21   Q.  So this would be a copy of a report by you with the date
22       in the footer of 17th July 2000?
23   A.  Yes, I would assume that, yes.
24   Q.  Which would tie in with you having given a copy of your
25       report to the CID for the Tayside inquiry on that date?
page  45
 1   A.  Yes.
 2   Q.  Can you explain how the dates come to be in the footers
 3       of your reports, because we will look at various
 4       different copies with different dates.
 5   A.  Well, I would put it there.
 6   Q.  And do you actually insert the date on the day that
 7       you're printing it or did the software do that
 8       automatically?
 9   A.  Possibly not.  The software probably does that.  In
10       fact, I'm sure the software does that.
11   Q.  So you would simply be copying off for the
12       police -- sorry, printing off a copy of your report on
13       that day?
14   A.  Yes.
15   Q.  The earlier one, if I bring up CO2755, again it would
16       bear to be a copy of your report?
17   A.  Yes.
18   Q.  On this occasion, in the bottom right-hand side -- I
19       think it is probably clearer as it stands just now --
20       the date is 23rd June 2000?
21   A.  Yes.
22   Q.  You are not aware of this but, by coincidence, the date
23       that Sheriff Crowe mentions as having received a report
24       from you is 23rd June 2000.  So if that's correct, or if
25       he's correct about the date, then it would be consistent
page  46
 1       with you having sent to (then) Mr Crowe at Crown
 2       Office --
 3   A.  It would, yes.
 4   Q.  -- a copy of the report with that date?
 5   A.  Yes.
 6   Q.  On the point that you were also mentioning about the
 7       Crown Office knowledge of you as having been involved in
 8       the Asbury case for the defence, if we look at the
 9       second page of this particular version, you quite fully
10       narrate on the second page that you had been instructed
11       by the defence in the case against Mr Asbury and
12       provided a report.
13   A.  Yes.
14   Q.  That is what the first paragraph says.  Is that correct?
15   A.  Yes.
16   Q.  What I want to do then -- and we will come back to these
17       two later versions -- is actually to look at the report
18       because you do mention and you are aware that there are
19       differences between at least two versions of your report
20       and an error in one of them relating to the right thumb
21       as opposed to the left thumb?
22   A.  That's right, yes.
23   Q.  Can I bring up, please, the two earliest versions of
24       your report.  These are the slides we prepared earlier,
25       if we begin with DB0201 and bring up also DB0202, I had
page  47
 1       them prepared earlier set up side-by-side so we can
 2       follow this.
 3           The one on the left, DB0201, I believe the
 4       highlighting at the foot is a date which I believe
 5       is 8th -- it's not come up very well if we highlight it
 6       to that magnification --
 7   A.  It is, yes.  It's an earlier --
 8   Q.  It's 8th May?
 9   A.  Yes.
10   Q.  And the one on the right-hand side that's more easy to
11       read is 17th May?
12   A.  Yes.
13   Q.  These you describe in your statement as two drafts that
14       you prepared.
15   A.  Yes.
16   Q.  In fact, I have looked at the two documents: neither of
17       them is signed.  Was it your practice to sign reports or
18       did you sign covering letters?
19   A.  I'm would normally sign my reports but I possibly didn't
20       on this occasion.  I don't know.
21   Q.  If we look at it, in that case we will look to the last
22       page of each of these two documents.  This is the last
23       page of each of the two reports.  Neither contains a
24       signature.  Would that be -- is it possible, therefore,
25       that both remained as drafts if neither's got a
page  48
 1       signature?
 2   A.  I would normally sign my reports but I am afraid I don't
 3       know.  I can't explain the reason for it not being
 4       signed.
 5   Q.  If we go back then and we will look at the contrast
 6       between the two different texts, if we go back to the
 7       first page of each of the two documents, so far as the
 8       first page is concerned the only difference that I'm
 9       aware of and you have not commented on anything else,
10       the only difference is in relation to the footer date.
11   A.  That's right.  If I make a point that the one on the
12       left-hand side, the first one, that was the day after I
13       attended at Kilmarnock so it would be quite a rushed
14       thing if I had done it at that time, one day after my
15       examination.
16   Q.  If we bring up the second page of each of the two
17       reports, what I've actually done on the second page on
18       each of the two reports is highlighted the difference
19       that you mention in your own statement?
20   A.  Yes.
21   Q.  On the left-hand one that's the first version, the
22       earlier version, you refer to the deceased as Marion
23       McRae whereas in the later version you refer to the
24       deceased by her correct name Marion Ross?
25   A.  Yes.
page  49
 1   Q.  If we then proceed to the third page, you have
 2       highlighted two particular matters for us on the third
 3       page.  It so happens both in the same line, line 7.  In
 4       the one on the left you refer to a right thumb.
 5   A.  Yes.
 6   Q.  That's in the context of Y7.  We see that in the fourth
 7       line, whereas in the one on the right-hand side Y7 again
 8       is on the fourth line but on this occasion Y7 refers to
 9       it as a left thumb?
10   A.  Yes.
11   Q.  Then again you highlight another change in line 7.  The
12       earlier version says, "I compared it, the fingerprint,
13       with the fingerprints of DC Cardwell", where as in the
14       later version you simply said, "I compared it with the
15       fingerprints of DC Cardwell".  So you have deleted a
16       double reference to the fingerprints?
17   A.  That's correct, yes.
18   Q.  Finally, as far as the changes that you mention in your
19       statement, if I go to the last page, again in the last
20       page do we see that the original error as to the name of
21       the deceased as Marion McRae is carried forward in the
22       left-hand page but been corrected on the right?
23   A.  That's correct.
24   Q.  What I want just to be clear about is your best
25       recollection now of 17th May.  That is the second of the
page  50
 1       two.
 2           Do you recollect having sent that, the second of the
 3       two, to the defence solicitors McIntosh & Wyllie or do
 4       you not know?
 5   A.  I'm sure I would have.  I really -- I wouldn't do it for
 6       anyone other than them.
 7   Q.  The reason I ask you is reasonably straight forward in
 8       relation to this if I bring up a letter which is DB0203
 9       and I will need the two pages of the letter --
10   A.  Oh, yes, I got this from the solicitors.
11   Q.  In fact, this I understand is a copy, a file copy, of a
12       letter from Mr Gordon Dalyell of Digby Brown to the
13       Convener of the Justice 1 Committee in September 2006
14       relating to the evidence you have given or supplied to
15       the Scottish Parliament?
16   A.  He was good enough to send me a copy of this letter,
17       yes.
18   Q.  What I have done is highlighted the second last
19       paragraph where Mr Dalyell is making it clear to the
20       Justice Committee that he has looked at the file of
21       McIntosh & Wyllie and cannot find on the file a copy of
22       your report dated 17th May 1997.  Plainly, I personally
23       know no more than was written by Mr Dalyell so don't
24       misunderstand me but I put that to you for comment.  Is
25       it possible that the later version, the one that was
page  51
 1       corrected with the footer of 17th May, in fact, was not
 2       sent to the defence solicitors?
 3   A.  I wouldn't think so.  That would be the only reason I
 4       would do it.  I can't imagine my not sending it to them
 5       but they say they didn't receive it.  I can't explain
 6       that.  I don't know their filing system.  I really don't
 7       know.
 8   Q.  The other part of this I am interested in is if I go
 9       back to the first report, that is DB0201, and if I can
10       bring that up on one side of the screen, we have looked
11       at it compared with 17th May and I want to contrast it
12       with one that has the footer date 23rd June 2000, which
13       is CO2755.
14           We have already covered -- the one I have just
15       brought up, CO2755, is the one dated 23rd June 2000 and
16       is, therefore, consistent with the evidence of Sheriff
17       Crowe that a copy was sent to Crown Office?
18   A.  Yes.
19   Q.  We can see now looking at them side-by-side just at this
20       page that they do indeed seem to be one a copy of the
21       other?
22   A.  Yes.
23   Q.  I will proceed as we did before just again with
24       highlighted versions to page 2.  So keep on the
25       left-hand side DB0201 and bring up on the right-hand
page  52
 1       side CO2755.  What I have on the left-hand side is
 2       DB0201, that's the earlier first draft, 8th May 1997.
 3       Do you see that?
 4   A.  Yes.
 5   Q.  With on the right-hand side the copy dated
 6       23rd June 2000.  Do you see that?
 7   A.  Yes.
 8   Q.  In fact, highlighted for us very helpfully on the screen
 9       is that it would seem the version sent to Crown Office,
10       the version dated 23rd June, would appear to be a copy
11       of the original, that is 8th May, because it contains
12       the reference to Marion McRae?
13   A.  Yes.
14   Q.  If I proceed to -- again, if I keep the left screen
15       DB0201 there -- and proceed to the next page of that
16       document, page 3, and bring up page 3 of CO2755, we're
17       interested again in the seventh line and the same?
18   A.  Yes.
19   Q.  Again, just looking at the two documents it would seem,
20       again, what was sent to the Crown Office was a copy of
21       8th May, again with "right thumb" and the additional
22       words "the fingerprint" that were superfluous?
23   A.  Yes.
24   Q.  Finally, just for completeness, if we bring up the last
25       page, page 4, of each of the two again we see in the
page  53
 1       fourth line of each of the two it contains the same name
 2       Marion McRae?
 3   A.  Yes.
 4   Q.  And I will complete the exercise by looking at the one
 5       that was given to Tayside Police on 17th July 2000, so
 6       if I keep DB0201 on the left and go on the right to
 7       SG0368, again just looking at the first page, they
 8       appear to be the same?
 9   A.  Yes.
10   Q.  But, again, there's no clue ever in the first page.  Can
11       we look at the second page then, please, of each of the
12       two documents.  Do we again see that at the end of the
13       penultimate paragraph again Marion McRae as you would
14       expect on the left as we've seen before but then Marion
15       McRae on the right as well?
16   A.  Yes.
17   Q.  Then page 3 of the text, again, the seventh line on both
18       we see that the one given to Tayside Police again is a
19       version of 8th May because it contains "right thumb" and
20       the additional two words "the fingerprint"?
21   A.  Yes.
22   Q.  Just for completeness, if we bring up the last page of
23       both documents, we again see in both the name Marion
24       McRae?
25   A.  Yes.
page  54
 1   Q.  Those are the four copies of the report that I'm aware
 2       that I have access to.  I may have others but certainly
 3       those are the four that I have access to and the way
 4       therefore it works, Mr Graham, having looked at it, is
 5       that three of the copies are that the text is the same
 6       with one different.
 7   A.  Yes.
 8   Q.  And the three where the text are the same are
 9       8th May 1997, 23rd June 2000 and 17th July 2000.  Those
10       three are the same.  Do you accept that?
11   A.  Yes.
12   Q.  And the one that is different is dated 17th May 1997,
13       the one that Mr Dalyell has questioned went to the
14       defence solicitors?
15   A.  Yes.
16   Q.  Can you explain to me how it would be that in printing
17       off copies of your reports to give to Crown Office and
18       to Tayside Police it would be the earlier version, the
19       one with the errors, 8th May, that you would have
20       printed off.
21   A.  I've given it some thought.  Obviously, I've not got the
22       same computer and so on as I had several years ago but I
23       must have had both reports saved on my machine and I've
24       recalled the wrong one to print out to send to people.
25       That's the only thing I can think about.
page  55
 1   Q.  So it must be that you had two copies on your computer
 2       because --
 3   A.  Yes, I must have my original one and the amended one on
 4       the computer and when I went to send out reports I've
 5       printed the first copy.
 6   Q.  Because if you had taken the first draft and amended it
 7       on the computer and, therefore, saved only the corrected
 8       version the later print-offs could only have been of the
 9       corrected version?
10   A.  Yes.
11   Q.  So it must be that you had two different versions on
12       your computer?
13   A.  I must have had both versions on my computer, yes.
14   MR MOYNIHAN:  Sir, that would be as convenient a point to
15       stop.
16   THE CHAIRMAN:  We normally take a short break in the
17       evidence from now until 11.50.  So we will do that now.
18       We will depart for 20 minutes because we started early
19       at 10.00.
20   (11.30 am)
21                         (A short break)
22   (11.50 am)
23   MR MOYNIHAN:  Mr Graham, just one final point on what we
24       discussed before the break.  You plainly have been asked
25       by us to comment on the differences between the two
page  56
 1       different versions of your report.
 2           When were you first yourself aware that there were
 3       two different versions of your report available outwith
 4       your own house.
 5   A.  The first indication I got was by Tayside officers when
 6       I was interviewed in the year 2000 that there was this
 7       copy of my report showing errors and I gave them a copy
 8       of it.  Now, I found it surprising that the Asbury team
 9       and the strength of the Asbury team, when I sent them a
10       report that was obviously faulty, they didn't contact me
11       to mention it.  I think it's quite clear that I sent
12       them a corrected copy but I can't be sure.  I don't
13       know.  I don't remember that far back.
14           So I gave evidence in the Asbury trial and at no
15       time did anyone suggest to me that I'd identified the
16       wrong finger, that I'd identified the right finger
17       instead of the left finger.  I've not seen the
18       transcript of the trial but I would be very surprised if
19       that wasn't picked up by anyone in the trial.
20           The McKie trial: I would have thought that they
21       would have had a copy of my report and if it was a
22       faulty report I would have been an excellent defence
23       witness for them if I'm saying it's a right thumb and
24       everybody else is saying it's a left thumb.  So I think
25       there must have been a lot of copies of my corrected
page  57
 1       report circulating.  Evidently, it's my fault that I
 2       must have put other or the uncorrected one into
 3       circulation but I feel that almost everyone that
 4       required the correct one had the correct one.
 5   Q.  You may want to just move the microphone from your
 6       right-hand side centrally making it a more comfortable
 7       position for you to sit.  As long as you are
 8       comfortable?
 9   A.  That's the only comment I've got to make.
10   Q.  I think even having moved the microphone you are still
11       having to lean to one side.  Move the microphone to a
12       position that means you are comfortable sitting.
13           What I want to do is to move to a completely
14       separate topic and ask you about your recollection now
15       of what you observed in Y7.
16   A.  Yes.
17   Q.  Can I begin by asking you to look please at paragraph 36
18       of your statement?
19   A.  Sorry, I was waiting for it coming up on the screen.
20   Q.  Your statement won't necessarily come up on the screen.
21       If it helps you, I can bring it up on the screen?
22   A.  It doesn't matter.
23   Q.  It probably helps if you have your paper version of your
24       report in front of you and we will bring up other
25       documents on the screen as we require.
page  58
 1           At paragraph 36 what I am going to take you to is
 2       your meeting with Mr Gilchrist?
 3   A.  Yes.
 4   Q.  Mr Gilchrist was at that time a Procurator Fiscal in
 5       Paisley.
 6   A.  He was.
 7   Q.  This is June 2001 and you met him and you are giving an
 8       account of your meeting with him.
 9   A.  Yes.
10   Q.  If I bring up on screen a copy of Mr Gilchrist's report,
11       which is CO0003 and go to page 18, what I'm asking you
12       about is the middle paragraph on that page:
13           "Malcolm Graham still maintains ..."
14           I will give you a chance just to read what
15       Mr Gilchrist has written.
16   A.  Yes.
17   Q.  What you are able to add -- if you tell me when you have
18       read it.  I should have given you a chance to tell me
19       when you have read the paragraph.  (Pause)
20           Have you read both paragraphs?
21   A.  Yes.
22   Q.  What you are able to tell us in your statement is that
23       Mr Gilchrist will have got the number of seven
24       characteristics identified by you because you recollect
25       having marked up a copy of Y7 for him with seven
page  59
 1       characteristics on it?
 2   A.  Yes.  When I went to see Mr Gilchrist I'd already
 3       downloaded a copy of the fingerprint that was on the
 4       web, Mr Wertheim's fingerprint.  On that I had marked up
 5       seven characteristics.  I couldn't see any more on that
 6       particular enlargement.
 7           I'm pretty sure that when we spoke about it that I
 8       told him that I saw more characteristics in the original
 9       fingerprint that I examined at Kilmarnock and, again, in
10       his library at Paisley, that there were more than seven
11       but a figure I can't give.
12   Q.  You very helpfully told us that the seven
13       characteristics that you marked for Mr Gilchrist were
14       marked on a copy of Y7 you had downloaded from the
15       Internet?
16   A.  Yes.
17   Q.  And it was a Mr Wertheim image of Y7?
18   A.  Yes.
19   Q.  So, first of all, can I suggest what we can take from
20       this is you had had an opportunity to reflect on the
21       image and, therefore, some time to study it and to
22       decide how many characteristics you could indeed match
23       with Mr Wertheim's image?
24   A.  Yes.
25   Q.  It wasn't a rushed job?
page  60
 1   A.  No, I had looked at that quite often.
 2   Q.  So you are able to say you may, by reference to the
 3       original police image, have been able to see more than
 4       seven --
 5   A.  Yes.
 6   Q.  -- but certainly from Mr Wertheim's image all you could
 7       pick out were seven?
 8   A.  Seven, yes.
 9   Q.  Is it your position that though you may have seen -- you
10       may have seen -- more originally, you have never been
11       able to pick out 16 points in sequential agreement
12       between the mark Y7 and the left thumb print of Shirley
13       McKie?
14   A.  I never saw 16 characteristics in the scene of crime
15       fingerprint, Y7.
16   Q.  And that is by no image you have seen have you ever seen
17       16 characteristics?
18   A.  No.
19   Q.  What I want to bring out is this difference between what
20       you saw.  We will take for sake of argument 7 and the 16
21       standard but what I want to pay particular attention to
22       is what is on the screen just now.
23           You saw 7 in the lower portion of the mark.  So you
24       were working in the lower portion?
25   A.  Yes.
page  61
 1   Q.  You were satisfied that that was sufficient to eliminate
 2       the print as being that of Shirley McKie.
 3   A.  I was, yes.
 4   Q.  We will come back to the use of the verb to eliminate.
 5       Then you say Mr Gilchrist records he accepts, that's
 6       you, however, that you cannot find 16 characteristics in
 7       common and that's always been your position.
 8           You, therefore, think that the SCRO approach was
 9       correct up to the point where they eliminated Shirley
10       McKie's fingerprint.
11           "According to Mr Graham, where SCRO went wrong was
12       in then attempting to find 16 points in common."
13           That is the point I want to just explore with you
14       and take some time.  I assume drawing a distinction
15       between eliminating the print as that of Ms McKie and
16       meeting the 16-point standard, that you regarded them as
17       two different matters.  Is that a fair position?
18   A.  They are two different matters altogether, the
19       elimination and the fingerprint for a criminal trial,
20       quite different.
21   Q.  If I use then a distinction between elimination on the
22       one hand and trial evidence on the other, if I
23       understand correctly at that time 1997 in Scotland the
24       court standards or the standard required for court
25       purposes was 16 points in sequential agreement with no
page  62
 1       unexplained differences.
 2           Is that a correct description of the standard
 3       required at that time in court?
 4   A.  I don't know where this the 16 characteristics in
 5       sequence and none -- I can't remember how you said it.
 6       If you've got 16 characteristics in sequence, there
 7       can't be any differences.  There's an explanation for
 8       any differences there might be if you have 16
 9       characteristics in sequence, that that more than enough
10       proves identity.  Irrespective of what else is on that
11       fingerprint if you have 16 characteristics in sequence
12       there can be no doubt at all that that fingerprint is an
13       identification.
14   Q.  So if I can then work back, what you are saying is if
15       you have 16 characteristics in sequence and agreement
16       you must have identity between the mark and the print?
17   A.  Yes.
18   Q.  Therefore, any difference that there be between the two
19       must be capable of explanation because the two are
20       identical?
21   A.  Maybe not capable of explanation because there may be
22       circumstances that we can't think about.  If I found 16
23       characteristics in sequence and there were some pointed
24       out to me they were wrong I know that they can't be
25       wrong so there must be an explanation but I may not be
page  63
 1       able to give the exact explanation.
 2   Q.  With that, as you would say, simply then the court
 3       standard was 16 points in sequential agreement?
 4   A.  Yes.
 5   Q.  What do you mean by there being something different in
 6       relation to the elimination of a print which is not to
 7       that 16-point standard?  What do you envisage by
 8       elimination?
 9   A.  The 16-point standard in 1953 was agreed because there
10       had been an argument between two different fingerprint
11       experts in England as to what the minimum number of
12       points were in an identification.  There was a
13       disagreement there.  So there was a meeting in 1952 -- I
14       said it was 1953, it could have been 1952 -- between
15       Fingerprint Officers, police officers and the Home
16       Office and they came up with this 16 characteristics as
17       being beyond doubt every fingerprint expert in the UK
18       agrees that 16 characteristics is an absolute
19       identification and that was the one that's persisted
20       since 1952 but it was only drawn up in criminal cases.
21       It didn't apply to the identification of the dead,
22       identification of stolen property, it didn't apply to
23       elimination fingerprints or anything of that nature.  It
24       was purely only an administrative thing for a criminal
25       trial -- nothing less.  In fact, things have changed a
page  64
 1       lot since 1952 and I don't know any fingerprint officers
 2       that would agree 16 characteristics was necessary on any
 3       fingerprint to identify it.
 4   Q.  What standard if any do you say would be required for an
 5       elimination?
 6   A.  What standard?  Two Fingerprint Officers forming the
 7       opinion that it's an identification and a third one,
 8       third independent person examining it and agreeing,
 9       that's all you require.  There's no set number.
10       Provided the people that examine it have got in their
11       own mind that this is an identification, that's
12       sufficient.
13   Q.  So, in other words, sufficient detail observed by a
14       collection of fingerprint experts?
15   A.  Well, at least two.
16   Q.  At least two?
17   A.  Yes.
18   Q.  Therefore, at the stage of an elimination, that's,
19       therefore, at least two fingerprint experts seeing
20       sufficient detail to persuade them of identity, are you
21       assuming by an elimination that each of those two
22       officers is 100 per cent certain of the identity between
23       the mark and the print?
24   A.  If the two officers are 100 per cent certain, yes.
25   Q.  But they are unable perhaps to count the 16
page  65
 1       characteristics that would be required for court
 2       purposes?
 3   A.  Yes.
 4   Q.  There's one other point I just wanted to ask you about
 5       that we can pick up in relation to this is at what
 6       point -- what would you say is the minimum number of
 7       points that would be in sequence and agreement
 8       consistent with a unique identification?
 9   A.  That's always been the problem.  That's why they had to
10       have a committee meeting because Fingerprint Officers
11       can't agree on the minimum number of characteristics.
12       In my experience, I don't think I've ever seen two
13       fingerprints made by different fingers with seven, even
14       six good characteristics on it and eight would be an
15       absolute certainty.
16   Q.  Can I bring up just while we are talking about this
17       minimum number a document SG0256.  If I assist, it is a
18       copy of a precognition by you that was given to the
19       Scottish Executive solicitors and I understand that this
20       is a version that you have revised and you are
21       comfortable with.  Is that correct?
22   A.  There was three altogether, if that was the one that ...
23   Q.  If I help you, if you look at the foot of page 8 of your
24       statement to the Inquiry, paragraph 38 you say:
25           "I'm shown two precognitions given by me to the
page  66
 1       Scottish Executive.  One is SG0105 (i) and SG0256 (ii)."
 2   A.  Yes.
 3   Q.  Then you say:
 4           "The first precognition 0105 was provided to me as a
 5       draft and I corrected the draft.  The second
 6       precognition 0256 is a copy of the corrected version."
 7   A.  Yes.
 8   Q.  It is accurate.
 9   A.  Yes.
10   Q.  So that is why I want to look at 0256 as a document that
11       you have seen before and you are satisfied is accurate.
12   A.  Yes.
13   Q.  If within that I turn to page 3, and I am looking at the
14       penultimate paragraph, you are covering material we have
15       just been covering in your explanation before:
16           "The recommendation [that's the 16-point standard]
17       only applied to criminal cases.  It does not apply to
18       the identification of the dead or elimination
19       fingerprints or for the identification of property.  I
20       would be satisfied if I found 10 matching points."
21           You have just told us anything above eight.
22           "Depending on the circumstances I think that an
23       identification with a very high degree of probability
24       could be made with six or seven matching
25       characteristics.  In my experience I have never found
page  67
 1       fingerprints made by different people to have a sequence
 2       of eight matching points, and it is unusual to see five
 3       or six matching, although with current computerised
 4       systems it may be possible to set a minimum limit."
 5   A.  Yes.
 6   Q.  That is what you have obviously written or you have
 7       obviously agreed back at the time of the civil action
 8       with the Scottish Government and thought it accurate?
 9   A.  Yes.
10   Q.  What I want to do is look at some of these numbers and
11       to begin at the lower number, five or six matching.  You
12       say:
13           "It's unusual to see five or six matching ..."
14   A.  Yes.
15   Q.  That would be the position, it's unusual to see five or
16       six?
17   A.  Very, yes.
18   Q.  May I take it, therefore, that by implication since you
19       say it is very unusual, may I take it that you yourself
20       have had experience of seeing five or six matching
21       characteristics?
22   A.  I doubt it but I've never seen eight.  Five or six
23       possibly.  I doubt if I've seen -- I think once you've
24       seen five or six you are pretty near an identification
25       although there's no fixed figure but I doubt really if
page  68
 1       I've seen five or six but I might have done.  But it's
 2       something that you would certainly show to people if you
 3       did find one in the department you would say, "Have a
 4       look at that".  You would be very, very surprised at
 5       five or six even.
 6   Q.  In a sense what I am trying to explore is this hint of
 7       hesitation in your evidence about five or six.  You are
 8       not quite convinced at five or six, can I take it?
 9   A.  No -- when you have looked at a fingerprint -- I can't
10       explain exactly when you mind comes from it might or it
11       might not be to you are absolutely certain, there's not
12       a figure you can put to it.  It's looking at it as a
13       whole --
14   Q.  I think if I interrupt you, I think you have got the
15       microphone too far the other side.  This is important
16       and others may not be able to hear you.
17           If we just go back, I had asked you about the hint
18       of hesitation in your evidence about five or six.  So if
19       you could just explain to me what the basis is for that
20       hesitation at five or six points?
21   A.  Because I think that out there somewhere is a
22       probability that there could be a fingerprint with that
23       number, although I've not necessarily seen it but there
24       could be one.  It's quite difficult when you are dealing
25       with very low figures.  At no stage when you are examine
page  69
 1       fingerprints do you say, "There's five or it might be
 2       six, oh, that is it then".  It's a fluid thing that
 3       you're doing, that you're just constantly trying to
 4       satisfy yourself that you've got enough here.  Once you
 5       are absolutely satisfied then count the number of
 6       characteristics you've got.  Five or six I don't think
 7       would be enough to make me satisfied but I think that
 8       there's a fair degree of probability that it would be
 9       correct.
10   Q.  That is a very helpful phrase because if we move up from
11       the lower number, five or six, the next number or range
12       is six or seven.  At six or seven you say a very high
13       degree of probability at six or seven.
14   A.  Yes.
15   Q.  Can you explain why you are of that view?  Why is there
16       a very high degree of probability at six or seven?
17   A.  Because I'm saying that at five or six there's a
18       probability but not as high as six or seven.  It's very
19       difficult to start talking about figures and numbers and
20       things.  What I regard as a point might not be regarded
21       as a point by another fingerprint expert.  So I might
22       see five or six and they might only see three or four,
23       or five -- or four or five.  We all think differently.
24       We all do our examination differently and it's when
25       you're absolutely sure that's when we all come together.
page  70
 1       But when you're dealing with lower numbers some
 2       characteristics aren't so clear and there is an
 3       interpretation and analysis involved in what you're
 4       seeing.  So it's not always possible to say there's
 5       definitely five or six points there.  I might think
 6       that; someone else might see seven or eight, somebody
 7       else might see three or four.  I don't know.
 8   Q.  So if I understand it correctly there's really a
 9       combination of two factors: first of all there's the
10       possibility that you can't quantify if, in fact, there
11       may be somebody else out there sharing this same number
12       of characteristics.  That's a possibility?
13   A.  Yes.
14   Q.  And, secondly, the added complication is you are trying
15       to interpret the image and you are conscious that
16       something you regard as a significant characteristic
17       might be regarded by an expert of equal standing as not
18       being a significant characteristic at all?
19   A.  That's correct, yes.
20   Q.  Therefore, at these lower, relatively lower numbers you
21       are entertaining a degree of doubt?
22   A.  Yes.
23   Q.  What we have heard a number of witnesses saying is that
24       when they reach the point of opinion of identity,
25       whether it's elimination or for court -- elimination or
page  71
 1       for court -- they are 100 per cent certain and if they
 2       are not 100 per cent certain they don't give any opinion
 3       as to identity.
 4           Are you of that frame of mind or do you have take a
 5       different view?
 6   A.  Certainly not.  If I was 100 per cent certain and there
 7       were 16 characteristics I would go to court.  If there
 8       were 5 or 6 characteristics and I wasn't absolutely sure
 9       I would notify the detective officer and tell them that
10       we have a very strong suspicion that they might be on
11       the right track.  The 16 characteristics you -- they
12       really don't come into the practical aspect of
13       fingerprint work, the 16 characteristics.  They play no
14       part other than presenting the evidence in court.
15   Q.  Let us leave the 16 points out and assume you are
16       looking at something that is a lower number.
17   A.  Yes.
18   Q.  So we're in the range, let's say, from five to ten.
19       Plainly the higher up that range the more certain you
20       would be and if I understand you correctly, from eight
21       to ten -- eight to ten -- you would be certain 100
22       per cent of unique identity, a unique match between the
23       mark and the print?
24   A.  That's correct, yes.
25   Q.  Between five and eight you're entertaining a degree of
page  72
 1       doubt?
 2   A.  Very difficult to draw a line here.  Five or six a
 3       degree of doubt, seven very little doubt, eight no doubt
 4       whatsoever.  As I say, it's a fluid thing.  It's
 5       something that you're examining and after you have seen
 6       sufficient to satisfy you that that's it then you count.
 7       Five or six, we've identified many people on five or six
 8       characteristics -- dead bodies.  We've identified many
 9       of them on five or six.
10   Q.  I will come back to the dead bodies just in a second.
11       Leaving that to the side, first of all, it's what you
12       understand by a strong suspicion to report it to the
13       police because we have heard Fingerprint Officers can
14       report strong suspicion to the police.
15           Are you indicating that you would have reported as a
16       strong suspicion someone who, in your judgment, had a
17       number that made it more likely than not that he was the
18       donor of the print but you had not yet reached the
19       conclusion yourself that he was uniquely identified with
20       that print so you still admitted of a possibly that
21       someone else might be there?
22   A.  Yes, very much so.  If I can give you an analogy, if we
23       have a footprint, these are never 100 per cent certain,
24       but you tell the officer that you think you've got an
25       identification and it guides them.  It's a guide as
page  73
 1       well.  You can link several different scenes of crime by
 2       fragments of fingerprints that none of them reach 16
 3       characteristics but you can -- it's a tool,
 4       fingerprints.  It's not just a 16 thing and an absolute
 5       identity.  You don't throw away fingerprints because you
 6       don't have the 16 or even the 14 or the 12.  If they are
 7       worth keeping you keep them in the hope of identifying
 8       the person subsequently.
 9   Q.  In relation to the dead bodies you mentioned that you
10       yourself had used, for the Lockerbie case you were able
11       to identify some of the bodies with less than this eight
12       to ten range.  In fact, you were working in the five to
13       six range?
14   A.  Probably there'd be a few in the five to six range, yes.
15   Q.  Please forgive me if you don't wish to enter this
16       particular debate, but entering the realms of the
17       possible and the probable, if I have a crime that could
18       have been committed by anyone in the world then I'd have
19       as a very much large doubt in my mind what you're
20       talking about, the fact that a number of
21       characteristics, five, six or seven, might just be by
22       chance matched by somebody else in the world, not just
23       the suspect.  Correct?
24   A.  Yes.
25   Q.  Whereas if I have a restricted pool of people, such as
page  74
 1       the passengers on the jet, so I'm looking at a
 2       restricted number of however many hundred unfortunate
 3       people were killed in that incident, and I'm simply
 4       trying to differentiate one body from another, the
 5       chances of two people on that plane having matching
 6       fingerprints to five or six would be very much less?
 7   A.  Certainly.
 8   Q.  And you're not worried about somebody else in the world
 9       sharing those --
10   A.  That's correct.  It makes quite a difference when you've
11       got a restricted number of people that you're working
12       with, yes.
13   Q.  So, in fact, that's indicating that there is a degree of
14       sophistication to this, that what you are actually
15       looking at are the chances of recurrence of that
16       combination of characteristics in, if I may call it
17       this, the target population?
18   A.  Yes.
19   Q.  With the aircraft incident your target population is
20       very much restricted?
21   A.  270.
22   Q.  Whereas with a crime that could potentially have been
23       committed by anyone in the world your target population
24       is the population of the world?
25   A.  Yes.
page  75
 1   Q.  If I can then come back with what you had observed and
 2       this is just for sake of argument, what you had observed
 3       with Mr Gilchrist on the Wertheim image of seven
 4       characteristics, were you satisfied on that combination
 5       of seven that you could eliminate that mark as the mark
 6       of Shirley McKie?
 7   A.  Yes.
 8   Q.  And to what degree of certainty were you eliminating?
 9       Was that 100 per cent certain or were you entertaining a
10       degree of doubt?
11   A.  I was certain.
12   Q.  However, what you tell us, both in this statement and
13       what you told Mr Gilchrist, was that though you were
14       certain you would not have taken that identification to
15       court in the context of a perjury trial against
16       Ms McKie?
17   A.  No, but I would have notified the Fiscal the quandary we
18       had.
19   Q.  So you would have notified the Fiscal that you were
20       certain of the identification but you would not have
21       been prepared to give evidence in a perjury trial to the
22       16-point standard?
23   A.  No, I would have been happy to give evidence in a
24       perjury trial on the number of characteristics I found.
25       I would not be permitted to give it because of the
page  76
 1       standard that we've got but I would have been more than
 2       happy to give it in the court.
 3   Q.  So what you are saying is consistent, therefore, with
 4       this: if the lawyers for the prosecution were standing
 5       by the national standard of 16 points in a prosecution
 6       for perjury, you would not expect that to have
 7       proceeded?
 8   A.  Yes, that's correct.
 9   Q.  There is, however, coming back to this point about the
10       elimination, a difference from that, the perjury trial,
11       coming back to the Asbury case because you were able to
12       give evidence in the Asbury case and did give an opinion
13       of identity in the Asbury case to this lower number?
14   A.  Yes.
15   Q.  What's the difference between the two, the Asbury case
16       and the perjury case?
17   A.  I didn't give evidence in the perjury case.
18   Q.  I appreciate that.  What I am meaning -- sorry --
19   A.  At that stage we were only dealing with an elimination
20       fingerprint and never expected it to go to a criminal
21       trial but even had we known it was going to a criminal
22       trial we would still have been happy with the
23       identification.  Well, I'm saying "we", I would be happy
24       with identification.
25   Q.  Maybe I will just try one more time because there comes
page  77
 1       a point when I will move on.
 2           What is the difference in your understanding of
 3       fingerprint evidence that means that you are able to
 4       give evidence of identity to an elimination standard in
 5       the murder case of Asbury but you would not have
 6       expected a prosecution to proceed in the perjury trial
 7       on the same evidence?  Do you understand the point I'm
 8       making?
 9   A.  I think I am.  It's just that the elimination
10       fingerprint, in my view, didn't reach the national
11       standard that was laid down and because of that I would
12       have been happy to give evidence if permitted to do so
13       but they wouldn't normally go to trial on these less
14       than 16 characteristics.
15           Have I answered the question?
16   Q.  I think so -- at least for my purposes at any rate.  I
17       will leave it there.
18           So what, in fact, we have been talking about in
19       relation to the perjury trial is, if I take you to
20       paragraph 44, page 10 of your Inquiry statement, you
21       have had your attention drawn to a quote in another
22       statement that you gave to the Scottish Executive, as it
23       was then, on 21st October 2005 and the quote is
24       identified in italics where you are recorded as having
25       said to the Scottish Executive:
page  78
 1           "In my opinion the mark was too poor to have been
 2       used for a perjury charge."
 3           Then you give an explanation.  Do you adhere to that
 4       position, that in your view the mark was too poor to
 5       have been used in a perjury trial?
 6   A.  Yes.
 7   Q.  What I also want to look at -- and I am sorry, I took
 8       the point down, if I can go back to CO0003, page 18,
 9       it's the same paragraph that you were looking at, the
10       one in the middle of the page.  I am going to ask you
11       about the last sentence:
12           "According to Mr Graham, where SCRO went wrong was
13       in them attempting to find 16 points in common."
14           First of all, Mr Graham, you would, if I understand
15       you correctly, agree with SCRO Fingerprint Officers on
16       the identity of Y7 and Shirley McKie, you agree with
17       them?
18   A.  Yes.
19   Q.  However, do you still take the view that the SCRO
20       Fingerprint Officers, though they may have been right in
21       relation to the identity, were in your judgment wrong in
22       saying that they could make that identity to the
23       national 16-point standard?
24   A.  I really was never given the opportunity to examine the
25       fingerprints under laboratory conditions with proper
page  79
 1       equipment.  It could well be that I may have produced
 2       more characteristics had I been given the equipment to
 3       do it with.
 4           I saw the fingerprints in 1997.  At that time I was
 5       working with two glasses only.  I had no comparator.  I
 6       wasn't allowed to prick the fingers where there's -- the
 7       fingerprints because they were productions and couldn't
 8       be touched.  Normally for counting fingerprints you
 9       prick or you do something to mark them as you go along
10       and then you just count the dots up later.  So I didn't
11       get to that stage either.
12           The comparator is useful once you've identified it
13       for marking off the points as well.  I didn't have a
14       comparator but I could not see 16 characteristics in my
15       examination at that time.
16   Q.  I think the point that you make in your statement to the
17       Inquiry, picking up what you say about the circumstances
18       in which you carried out your examination, is you admit
19       of the possibility that officers under different
20       circumstances may have seen more characteristics than
21       you observed.
22   A.  That -- I understand that they had other material to
23       look at that I didn't have at the time, that may have
24       helped them as well.  I really don't know.  I was never
25       given an opportunity to look at all the material to see
page  80
 1       if I could improve the number of characteristics I got.
 2       I wasn't acting for anyone, once I had done my job for
 3       Asbury.  I wouldn't get access to the material SCRO had
 4       for a further examination.  The only time I saw the
 5       material again was when Mr Gilchrist -- when I got a
 6       chance to look at the original Y7 and the fingerprint
 7       from it.  That was the only time I got to view these and
 8       my examination then was carried out in his library and I
 9       did not have the equipment I would normally have when I
10       go to an outside examination.
11   Q.  At least we can approach it in this way: firstly, at no
12       point in looking at Y7 in the circumstances that you had
13       at no point did you see 16 points?
14   A.  That's correct.
15   Q.  Secondly, if as you expected the prosecution had been
16       working to the normal standard you yourself could not
17       have met the national standard?
18   A.  No, I could not at that time, no.
19   Q.  Therefore, does it follow, as is recorded by
20       Mr Gilchrist in that final sentence, that at least from
21       what you yourself have seen, you yourself believe that
22       there's at least a possibility the Fingerprint Officers
23       did make a mistake, not in identifying the mark as that
24       of Ms McKie but made a mistake by proposing that
25       identification to the 16-point standard?
page  81
 1   A.  That was my view at the time, yes.
 2   Q.  Does that remain your view today?
 3   A.  Yes, it does.  But, as I say, I've not had the
 4       opportunity to examine it as they examined it,
 5       so ... it's slightly filleted.
 6   Q.  It's slightly?
 7   A.  Filleted.
 8   MR MOYNIHAN:  I have no further questions.  Thank you.
 9   THE CHAIRMAN:  Mr Holmes?
10   MR HOLMES:  There are a couple of matters I would like to
11       clear up --
12   MR MOYNIHAN:  Sir, perhaps if I intervene.  I am conscious
13       of perhaps where the balance may be in relation to the
14       witnesses.  Perhaps Mr Holmes should have the
15       opportunity to --
16   THE CHAIRMAN:  I was thinking of it the other way round.  I
17       had it in mind that I tend to give the last opportunity
18       to, I think, in these circumstances Mr Smith but are you
19       ready now to?
20   MR HOLMES:  I don't think so, sir.  There are a couple of
21       matters that I would like to clear up with Mr Graham but
22       there have been a significant number of documents added
23       recently to the database and I would like to have a look
24       at those before I ask questions.
25   THE CHAIRMAN:  Are you prepared to apply now?
page  82
 1   MR SMITH:  Sir, I am ready to make the application just now,
 2       although it may be, depending on what Mr Holmes asks, I
 3       might ask to come back on one or two points.  I do think
 4       this witness is important, as I am sure you appreciate.
 5   THE CHAIRMAN:  Would you like a few minutes to decide what
 6       you wish to ask?
 7   MR HOLMES:  Sir, I understand Mr Smith's position and if it
 8       is at all of assistance I have no opposition to him
 9       coming back if there's anything I ask that is
10       controversial.
11   MR SMITH:  Sir, if I'm permitted to ask the questions I'd
12       like to ask it may take us up to lunchtime anyway and it
13       may be Mr Holmes can consider the documents over
14       lunchtime.
15   THE CHAIRMAN:  If you let me know what it is you would like
16       to ask?
17   MR SMITH:  Sir, I'd like to ask questions about, first of
18       all, whether this witness maintains the position that Y7
19       shows the tip of a thumb.  We have covered the question
20       of the importance of two separate parts of the
21       fingerprint already.
22           The second matter relate to circumstances under
23       which Mr Graham carried out the examination.  We have
24       heard some evidence about that already but I would like
25       to ask a few more questions on that.
page  83
 1           I would like to ask some more questions about the
 2       number of points that he feels are essential for
 3       examination for elimination as compared to
 4       identification.  I am not quite sure we got to the
 5       bottom of that.  I'd like to press him on that.
 6           The next matter relates to his knowledge and any
 7       familiarity with any individuals within SCRO and some
 8       comments he appears to have made regarding Mr Wertheim.
 9       I would like to ask him the basis for these comments.
10           I would also like to put to him a couple of matters
11       relating to the various dates of the reports that we've
12       touched on already.  I can deal with that fairly
13       shortly.
14   THE CHAIRMAN:  I imagine because we have gone into that
15       pretty thoroughly but certainly if there's some ... very
16       good, I will give you leave then.
17   MR SMITH:  Thank you, sir.
18                    Cross-examined by MR SMITH
19   Q.  Mr Graham, perhaps it would help if I explain at the
20       outset that I not only represent Shirley McKie but also
21       David Asbury.  That may be of some importance to the way
22       I wish to ask the questions so you understand my
23       position.
24           The first thing I would like to ask you about is
25       just dealing with the mark Y7, if I can deal with that
page  84
 1       first of all, I would like to understand just to put
 2       this in a logical order the circumstances under which
 3       you came to examine the mark.
 4           I think we can see from your reports that you
 5       examined I think in total 13 fingerprints on the given
 6       date when you went to the offices of the Procurator
 7       Fiscal in Kilmarnock.  Is that right?
 8   A.  I would have to count them but that's probably right,
 9       yes.
10   Q.  I think we have seen from statements that you have given
11       that you spent two to three hours is the period of time
12       that you indicated you spent there?
13   A.  I didn't notice it exactly but it would take about that
14       time, yes.
15   Q.  So as far as these, if you take it from me doing a count
16       and I think my arithmetic's reasonably accurate on this,
17       13 fingerprints in 2 to 3 hours, are you able to help us
18       with whether it was nearer 2 hours or nearer 3 hours or
19       can you simply not remember?
20   A.  No idea.
21   Q.  By my reckoning that give about 13/14 minutes on average
22       per fingerprint you were looking at.  Again, is that the
23       kind of timescale you are comfortable with?
24   A.  Depending on the quality of the fingerprint, yes.
25   Q.  I take it you would agree with me that, generally
page  85
 1       speaking, if one is examining a fingerprint one may come
 2       to a conclusion very quickly that the latent print and
 3       the mark are not the same.  Very obvious first level
 4       details leave patterns that are totally different.
 5   A.  If the classification pattern is wrong, it's a different
 6       fingerprint, yes.
 7   Q.  Somebody with your experienced eye and, indeed, any
 8       expert would be able to spot that in some circumstances
 9       with a very obvious difference in seconds, frankly.  Is
10       that fair?
11   A.  It would be done very quickly, yes.
12   Q.  Equally, any obvious difference that simply couldn't be
13       explained as something, that could be appreciated with
14       great speed.  That's fair, isn't it?
15   A.  Yes.
16   Q.  We contrast that of course with the position where
17       somebody is trying to look at two fingerprints to come
18       to the conclusion or is being drawn to the conclusion
19       that they might be the same they have to spend a good
20       bit more time looking at it and making sure they are the
21       same and ensuring there are no inexplicable differences;
22       that's fair, isn't it?
23   A.  That's right, yes.
24   Q.  What you were doing in these circumstances is the second
25       of these exercises, you were being drawn to the
page  86
 1       conclusion and you concluded, indeed, that in each of
 2       these 13 prints there was, in fact, a match between the
 3       latent and the mark?
 4   A.  Yes.  I get the police report and the joint report from
 5       the fingerprint experts and I work through them.
 6   Q.  I take it that there was no pressure upon you in terms
 7       of time in the Procurator Fiscal's office?  They weren't
 8       ushering you out?
 9   A.  No, I had as much time as I required.
10   Q.  Accordingly, I take it if you said, "Listen, I need to
11       come back tomorrow", you would have been able to do that
12       provided your diary --
13   A.  I would have gone the next day if I had to do that, yes.
14   Q.  So you had really as much time as you wished to examine
15       within that office the various prints that you were
16       being asked to look at?
17   A.  Yes.
18   Q.  You were instructed as an expert, as you well knew, in a
19       murder case.  You knew that, didn't you?
20   A.  I knew it was a murder case?
21   Q.  Yes.
22   A.  Yes, I knew that, yes.
23   Q.  And you would appreciate how important your evidence
24       could be in that case, in particular to the accused, my
25       client, David Asbury.  You knew that this was going to
page  87
 1       be important?
 2   A.  My evidence in all cases was important.
 3   Q.  Yes.  So if there was evidence about someone breaking
 4       into a car you would see that as being as important as
 5       someone who was charged with a brutal murder, would you?
 6   A.  If I'm given evidence on that, yes, that would be every
 7       bit as important as a murder, yes.
 8   Q.  Very well.  So you are treating this as a case of
 9       immense importance, as you have explained, as with all
10       cases that you --
11   A.  Exactly.
12   Q.  As far as the lighting, et cetera, is concerned in the
13       Procurator Fiscal's office, I think you have indicated
14       in some of your statements that the conditions you felt
15       were perhaps less than ideal.  Is that fair?
16   A.  When I started my investigation it was in the production
17       room in Kilmarnock.  I found it unsuitable.  I spoke to
18       the lady solicitor and she arranged with the Fiscal and
19       I was given the Fiscals' Office to do my examination.
20   Q.  I think, from memory, the production room at Kilmarnock
21       has no natural light in it; is that right?
22   A.  No, I don't mean natural lighting.  I carry a lamp but
23       from what I can recall there was no suitable desk and I
24       don't think there was even a plug to plug my lamp into.
25   Q.  So by the time you got to the Procurator Fiscal's actual
page  88
 1       office I take it you were as satisfied as you could be
 2       that there was no inhibition in you reaching a
 3       conclusion?  There wasn't any lack of light or lack of
 4       equipment that you felt you should say to your
 5       instructing solicitors and counsel, "Hang on a minute,
 6       I'm not happy with this.  I need to go back to my lab to
 7       do it"?
 8   A.  I had everything I needed for my examination at
 9       Kilmarnock.
10   Q.  I take it that if you felt you required any additional
11       equipment or anything of the kind it would have been
12       perfectly open to you to say to the solicitors and
13       counsel, "I need to take this away".  You could have
14       done that if you wanted to?
15   A.  I would have spoke to the Fiscal and probably been given
16       the productions.  I'm not sure, but I probably would
17       have been given them to take away but I don't know --
18       thinking about that, I wouldn't be.  I would be told to
19       call at a police station or SCRO to see the productions
20       in their -- with their facilities.
21   Q.  I think I am right in saying you didn't yourself cause
22       photographs to be taken of the mark itself, Y7?
23   A.  No.  I don't do that.  My job is to cast my eye over the
24       police evidence and if there's anything wrong with it to
25       flag it up.  If I'm happy with what I see I more or less
page  89
 1       tell the solicitors that, that I find all the police
 2       evidence sound, all the fingerprint identifications I
 3       agree with.  If I don't agree with them then I notify
 4       the defence agent and they do something about that.  But
 5       generally I'm only there to agree or disagree with what
 6       I've seen.
 7   Q.  Can I ask you, Mr Graham, have you ever in your career
 8       said that the police evidence or SCRO evidence in a case
 9       has been wrong?
10   A.  I thought there was a case in Stirling once where I
11       couldn't identify it.  I spoke to the solicitor at the
12       time, a man Tony Kelly, he saw the Fiscal and I was
13       given the facilities at Stirling to examine the one I
14       wasn't too sure about and it was an identification.
15   Q.  Sorry, it was an identification?
16   A.  It was an identification.
17   Q.  So the answer to the question is, at least in your
18       private work since you've retired, you have never come
19       to the conclusion, ultimately, that there was anything
20       wrong with a police identification or SCRO
21       identifications; is that right?
22   A.  On two or three occasions I've been critical of it but
23       not of the identification itself.  I've been critical of
24       the enlargements that have been produced, I've been --
25       there's been two or three where I didn't think it met
page  90
 1       the criteria of 16 characteristics but on the whole I've
 2       agreed with every identification.
 3   Q.  As far as the photographs are concerned, on this
 4       occasion you went to the offices in Kilmarnock, how
 5       would you describe the quality of the photographic
 6       representations of the marks?
 7   A.  The photographs of Y7, there were two of them were good,
 8       just what I would expect to find in a case of that
 9       nature.  Some of the other ones weren't so good for
10       various reasons.  The fingerprints were maybe not very
11       good, the background was difficult to see, the
12       photographs could have been done better, the
13       enlargements were appalling, the marking up of the
14       enlargements was bad.  But I agreed with all the
15       identifications.
16   Q.  I am wondering, Mr Graham, against the background that
17       you spent on average 13/14 maybe 15 minutes on each
18       photograph and you are critical of the quality of the
19       images in some respects, you are critical of the marking
20       up in some respects --
21   A.  The enlargements, yes.
22   Q.  How is it that you can actually be sitting there in the
23       office and have any degree of confidence in the analysis
24       by SCRO when you weren't comfortable with at least the
25       presentation?
page  91
 1   A.  When I do that I've no confidence in any analysis that
 2       might be put in front of me.  I've got to look at that
 3       myself.  But I'm making the point that the fingerprint
 4       enlargements that I saw and I've never, ever used the
 5       fingerprint enlargements as a means of identification.
 6       The identification of every mark was carried out using
 7       two linen provers and that was it.  Nothing more than
 8       two linen provers.  I would never have found any
 9       identification on the enlargements.  They just were not
10       good.
11   Q.  I think your position is what were described as the
12       charting enlargements are really not --
13   A.  No, not just the charting the actual -- well, the
14       general photography was poor.
15   Q.  Had you ever seen photography as poor as that before?
16       Was this exceptionally bad, this photography?
17   A.  SCRO's were always exceptionally bad.
18   Q.  When you examined Y7 -- we will concentrate on Y7 for
19       the moment, if I may --
20   A.  Can I just make one point?
21   Q.  Yes, of course.
22   A.  Because you're talking about an average of the time I
23       spent on each fingerprint.  I spent longer on Y7 than I
24       did on any of the other fingerprints there.
25   Q.  Why was that?
page  92
 1   A.  Because it was a very, very poor fingerprint.
 2   Q.  Did you see any differences within the mark Y7 as
 3       compared with Shirley McKie's inked mark?
 4   A.  There's always differences in every fingerprint that you
 5       look at compared to the ones that are taken on a
 6       fingerprint form.  This one had evidently a second
 7       touch, that there was distortion, it was a fragmented
 8       fingerprint.  The ones on the fingerprint form weren't
 9       fragmented.  There were no second touches on any on the
10       fingerprint form images that I saw.  So, yes, there was
11       a lot of differences.
12   Q.  These differences you have told us why there were
13       differences, by being a second touch, et cetera,
14       et cetera.  Did you see any bifurcations on the inked
15       mark that went in the opposite direction to the
16       bifurcations on Y7?
17   A.  Did I see any bifurcations going in the wrong direction?
18   Q.  Yes.
19   A.  Is this what you're saying?
20   Q.  Yes.
21   A.  If I had, I would have rejected the fingerprint probably
22       unless there was a reason for them being there.
23   Q.  I don't wish to descend into showing you various images
24       being flashed up before you, but we have heard evidence
25       already from one witness that there appeared to be
page  93
 1       bifurcations that one goes right to left on one of the
 2       fingerprints but going in the opposite direction on the
 3       other.  We have heard the evidence to that effect.  Is
 4       that something you recall seeing?
 5   A.  I think I would have flagged that up as a problem if I
 6       had seen that.  But I'm glad you're not putting them up
 7       on the screen.  I've not looked at fingerprints for many
 8       years and I really am not in a position to comment on
 9       other people's work.  If there had been a bifurcation
10       that was different to the one on the form, and a clear
11       bifurcation, then I would have rejected the fingerprint
12       as an identification.
13   Q.  Again, I don't want to show you the fingerprints for the
14       reasons you have identified but would I be right in
15       saying that you at least at one stage held the view --
16       and I can put the various bits and pieces to you if you
17       wish -- that Y7 was a fragment of the tip of a thumb if
18       I put it that way?
19   A.  Yes.
20   Q.  I think Mr Moynihan (the gentleman over there) went
21       through the various reports that were prepared or
22       printed off or whatever at various times, but I think
23       you would accept -- I can show them if you wish -- but
24       whilst the word "right" and "left" is substituted as
25       appropriate, you maintain the position of course that it
page  94
 1       was the tip of either a right or left thumb, however one
 2       wishes to look at it.
 3           Can I be clear that your view to this day remains
 4       that you haven't had any reason to change your view, if
 5       I put it that way, that this was the --
 6   A.  That it was a left thumb?
 7   Q.  That it was a thumb, if I put it that way.
 8   A.  Well, as I say, I'm given the reports from SCRO to look
 9       at.  Obviously SCRO identified it as a left thumb and I
10       confirmed that identification.
11   Q.  I am actually more interested at this stage whether it's
12       the fragment of the tip.  Whether left or right I'm not
13       that concerned about at this stage.  So that's the
14       position that you adhere to, is it?
15   A.  Yes.
16   Q.  Are you talking about the entire mark Y7 when you are
17       describing that?
18   A.  Can I -- what was the question?
19   Q.  I will put it again, if I can, and try and make it
20       clearer.
21           When you say that the mark Y7 when you I think
22       acknowledged that you've had no reason to change your
23       position that was the tip of a thumb?
24   A.  A thumb, yes.
25   Q.  You're talking about all the entire thing within Y7, are
page  95
 1       you?
 2   A.  No, it was an upper part of a left thumb, not
 3       necessarily -- well, the tip is the very top but it was
 4       certainly the upper part of a left thumb.  There was
 5       just a part of the core showing and the delta was
 6       missing.
 7   Q.  It is no doubt the way I'm putting the question and
 8       forgive me.  As I understand it, there has been a
 9       suggestion by you that there was some distortion that
10       may have been a double touch or a double tap?
11   A.  Yes.
12   Q.  I take it that your position is that even if it was a
13       double tap or even some distortion, it is still probably
14       the same digit that applied the whole of Y7; is that
15       fair?
16   A.  Oh no, I don't know if the second touch was the same
17       finger.  Maybe it was a repositioning of the finger but
18       I certainly couldn't say that.
19   Q.  Just to be clear about it, I think you have acknowledged
20       this question of Y7 being the tip of, let's say, a left
21       thumb.  Is it the top part of Y7, the bottom part or all
22       of it?
23   A.  There's maybe some confusion here.  The left thumb is
24       that (indicated), the fingerprint was that (indicated).
25   THE CHAIRMAN:  Can you just turn your hand round.  I can't
page  96
 1       see --
 2   A.  The left thumb is the whole length of the thumb.  The
 3       tip is that.  That was the part of the finger that the
 4       fingerprint was (indicated).
 5   MR SMITH:  I think I will try to get that into the notes if
 6       I can.  Can you just show me and I'll try and describe
 7       it.  We have to try and get it into the written record
 8       here.  Just before you show me anything else, I
 9       think you said --
10   MR MOYNIHAN:  I'm sorry to interrupt.  We're going to get a
11       camera brought in.  Perhaps we can come back to it and
12       get a camera.
13   THE CHAIRMAN:  I think they are referred to as phalanges,
14       aren't they?  So this would be the top --
15   A.  This is the ball of the thumb, my Lord, the top and it
16       was --
17   THE CHAIRMAN:  Sorry, you know the crease which comes --
18   A.  Yes, the flexure.
19   THE CHAIRMAN:  -- where the joint is.  Is it from there up
20       or above there?
21   A.  No, it was probably halfway up between the flexure and
22       the very top.
23   THE CHAIRMAN:  I think that defines it.
24   MR SMITH:  I think it does.  Thank you, sir.
25           So it's the last joint of the thumb is the area.
page  97
 1       It's within that area?
 2   A.  It's above the last joint in the thumb, yes.
 3   Q.  Again, I understand what part of the thumb you are
 4       saying you think it comes from but I am interested in
 5       thinking about the mark Y7.  Which part -- I am sorry,
 6       take that out.
 7           I think Y7 we can see the core area which I think is
 8       sometimes referred to as the delta, is it?
 9   A.  No, the core area is in the centre.  The delta is to the
10       side.
11   Q.  The core area: do you remember seeing the core area?
12   A.  Yes, the top of the core area is there.
13   Q.  So the bottom part of Y7 shows the core area, correct?
14   A.  Yes, it does, yes.
15   Q.  Then you move up, as it were, in Y7 and we can see more
16       detail moving further away from the core?
17   A.  Yes.
18   Q.  So therefore I take it you were prepared to give the
19       opinion that the top part of Y7, the top half of Y7, is
20       actually the tip, probably the tip of a left thumb.  Is
21       that right?
22   A.  Yes, probably.  Are you talking about the second touch?
23   Q.  I'm talking just about the top part of the mark Y7.
24       Whether second touch, first touch, one touch, I'm not
25       really --
page  98
 1   A.  I certainly couldn't identify the very top part of the
 2       fingerprint.  I couldn't identify that as the left
 3       thumb, the bit at the very top near the nail.  All my
 4       identification points were in the centre of the print,
 5       the core and to the right of the core, the lower part of
 6       the photograph.
 7   Q.  I would like to ask if I can about the questions of
 8       differences, something you said I am a little bit
 9       confused about.
10           Let's assume that you look at the fingerprint and
11       you come to the conclusion that there's a match between
12       that one, the unknown mark and inked print.  You then
13       start doing the count because someone wants you to see
14       how many points of comparison there are and you get to,
15       let's say, five or six.  But there is a big difference
16       on that fingerprint on the mark between the mark and the
17       inked.  Do you follow?  Let's say a bifurcation is going
18       the wrong way, for example.
19           Are you saying that having concluded that it is a
20       match and without any explanation you can come up with
21       as to why the bifurcation would be going the wrong way,
22       you would nonetheless be saying, "There must be an
23       explanation, I can't explain it but these are of common
24       authorship".
25           Is that your evidence?
page  99
 1   A.  If I examined a fingerprint and I was absolutely certain
 2       in my own mind that it was an identification, there
 3       could not be a bifurcation going the wrong way.
 4   Q.  You see, I thought your evidence earlier was that if
 5       there is a difference, even if you don't have an
 6       explanation for it, if you have previously come to a
 7       conclusion that it is a match, then the fact there's a
 8       difference that cannot be explained is just, as it were,
 9       air-brushed out of the conclusion you reach.
10   A.  I think we were talking about 16 characteristics at that
11       time, were we not?
12   THE CHAIRMAN:  You were.  Your answer was if there are 16
13       characteristics, then unexplained differences could be
14       discounted.
15   A.  There can't be any differences, yes.
16   MR SMITH:  Thank you, sir.  Are you really saying that if
17       you get 16 characteristics, statistically it's
18       impossible to get a difference?  Is that what you are
19       saying.
20   A.  I'm saying my experience I've never, ever seen it and
21       I've never seen it any publications.  In every country
22       in the world there's a fingerprint bureau and at no time
23       have they been found to be 16 characteristics, or
24       whatever the standard is, in two fingerprints to be
25       found to be the same.  So, yes, I would say
page 100
 1       statistically it just doesn't happen.
 2   Q.  I follow.
 3           I asked you about examination of Y7.  I think you
 4       also examined the mark QI2; is that right?  The one on
 5       the tin you have explained.
 6   A.  Which one was that?
 7   Q.  The fingerprint on the tin.
 8   A.  Well, there were two fingerprints on the tin, yes.
 9   Q.  The one was said to be that of Marion Ross.
10   A.  Yes.
11   Q.  I think in your reports -- and you make this clear in
12       your statement, I think -- but in your report you refer
13       to the tin having significant evidence of powder on it.
14   A.  I thought the fingerprints had been developed in powder,
15       yes.
16   Q.  Were you able to actually see the tin in real life?
17   A.  Oh, yes.  I took the tin out the bag it was in and
18       examined it closely.  Yes, I did.
19   Q.  I think we know in fact that the tin was examined by
20       what's sometimes called supergluing or Quaser
21       examination?
22   A.  Examined by superglue; thereafter a dye put on it and
23       then a Quaser to allow the dye to fluoresce and then you
24       fingerprint the fluorescence, yes.
25   Q.  The supergluing technique causes, as one might expect
page 101
 1       with superglue, any marks to become hard, doesn't it?
 2   A.  It bonds to the fingerprint and the fingerprint to the
 3       tin, yes.
 4   Q.  To the extent that it's almost impossible to actually
 5       remove them other than with chemicals to dissolve the
 6       glue; is that right?
 7   A.  That's right.  You could scrape it off probably but it
 8       is bonded.
 9   Q.  I am wondering, Mr Graham, how it could be that you
10       could have been under the impression that it was powder
11       on that tin when in fact it was something very different
12       which was superglue?
13   A.  It wasn't something very different.  Supergluing gives a
14       kind of gray colour as if it would be aluminium.  When I
15       examined it, if I had examined it at the time I would
16       have used aluminium powder.  The fact that they used
17       superglue I didn't even consider the fact that they
18       might have used that, but it was a process that we do
19       use for certain things.
20           As I say, I would have used powder, aluminium
21       powder, and that's what I thought it probably was.  The
22       reason for using aluminium powder is that the tin had a
23       very colourful background, very difficult to photograph
24       a coloured background.  A fingerprint on a coloured
25       background's quite hard to see.  If you dust the tin
page 102
 1       with aluminium powder, you can lift it off and place it
 2       on to a neutral background and get a better photograph
 3       and I thought probably aluminium powder had been used.
 4           To determine whether it has a pattern or a fuming
 5       with the glue, I would have had to either examine it
 6       microscopically to see if there was any traces of powder
 7       or what the surface was or you could scrape it and if it
 8       was difficult to scrape off, then it would be superglue.
 9       In my report I said it had been powdered.  What I meant
10       was it had been examined.
11   MR SMITH:  I follow.
12           Sir, I see the time.
13   THE CHAIRMAN:  Yes.  We will rise now until 1.50.
14   (1.00 pm)
15                      (Luncheon Adjournment)
16   (1.50 pm)
17   MR SMITH:  Thank you, sir.
18           Mr Graham, I wonder if I can ask you some questions
19       about the number of points that you feel are sufficient
20       to draw an identification.  I understand your evidence
21       that that's really the last step in the process.  What
22       you do is you come to a conclusion and then you go and
23       count points.
24           Can I understand this though: there must be a
25       difference, is there, when you are comparing two
page 103
 1       possible persons against an unknown print and the
 2       position where you are comparing just one person against
 3       the unknown print.  Do you follow?
 4   A.  It really wouldn't matter.  Once you've identified it
 5       you're excluding everyone not just one of the two.  It's
 6       a complete exclusion.
 7   Q.  Perhaps I can try and put it this way with the
 8       information you provided us with regarding the Lockerbie
 9       case, the air disaster?
10   A.  Yes.
11   Q.  I think there were 270 individuals that were on the
12       plane.
13   A.  Yes.
14   Q.  Just to pick up a point the point Mr Moynihan was
15       making, there were on that plane a large number of
16       people in respect of which there was no necessity for
17       fingerprint identification, people who, for example,
18       were still wearing clothing with identification on them
19       who were carrying some means of identification that
20       could be analysed without the necessity of fingerprints.
21       That's right, isn't it?
22   A.  There were very few like that.  Every recovered body had
23       to be fingerprinted.  Most of them, their clothing was
24       off their bodies when they arrived down on the ground,
25       they were mutilated, there was very little opportunity
page 104
 1       to identify bodies, either by fingerprinting or dental
 2       work.
 3   Q.  But nontheless what you are doing is you have a pool of
 4       a number of people from the passenger manifest?
 5   A.  Yes.
 6   Q.  And from that, you would be able to identify, for
 7       example, that so many were either male or female.  You
 8       would be able to identify that in almost every case?
 9   A.  Yes.
10   Q.  You would be able to identify the approximate height of
11       the individual?
12   A.  That didn't come into the fingerprint aspect of it.  We
13       don't know the description of the people.  We had a
14       fingerprint database of the people that we knew were on
15       the plane, all the nationals, we got fingerprints from
16       all the countries coming in to give us the fingerprints
17       of everyone they thought was on the plane.  We then
18       fingerprinted all the bodies and from that we compared
19       the fingerprint -- well, we didn't fingerprint all the
20       bodies, the ones that could be fingerprinted, and from
21       that we carried out an examination but we were not aware
22       the ages, the heights or anything at all about the
23       individuals.
24   Q.  The point I'm simply trying to get to is that even a
25       pool of 270 would be significantly restricted because --
page 105
 1   A.  That's right.
 2   Q.  -- there may only be only two females of about 50 years
 3       old or of a particular height that they didn't know
 4       which was which.  What you are doing is really
 5       analysing, on that basis, it's a 50/50.  It's one of the
 6       two of them you are trying to identify.  That's fair,
 7       isn't it?
 8   A.  Yes, but the fingerprint people weren't aware of these
 9       things.
10   Q.  Of course.
11   A.  We had no knowledge of that at all.
12   Q.  I follow.
13           I'd like to ask you a little bit about the various
14       reports.  Mr Moynihan covered this in a bit of detail.
15       As I understand it, what your evidence is is that you
16       prepared what was essentially I think you said a rushed
17       report that was produced.
18   A.  Well, when I look at the date on it it was the day after
19       I had gone out to Kilmarnock so it was quite a quick
20       report that I produced.
21   Q.  You accept though it doesn't anywhere suggest it's a
22       draft report or anything of that kind?
23   A.  A draft meaning a draft before the final report?
24   Q.  Correct.
25   A.  I don't know.  I've not signed it, which is unusual, but
page 106
 1       I can't explain why there are two reports circulating.
 2       I can only assume that either the Asbury team got in
 3       touch and pointed out the error and I gave them a
 4       corrected report or I noticed myself and I rushed off a
 5       second report.  I don't know.
 6   Q.  The point I am simply trying to make is that there's no
 7       suggestion on the report, the first one, that this was
 8       somehow rushed out just as a draft to let the Asbury
 9       defence team get working on something, there's not any
10       suggestion?
11   A.  Other than the errors in it, it seemed to be pretty
12       rushed, isn't it.  I throw my hands up.  The first
13       edition was appalling.  The second one was fine.
14   Q.  You see I am wondering, Mr Graham, I think you have
15       explained that maybe someone pointed out the errors to
16       you but what it was that caused you to go back and
17       revisit it because you didn't take any materials away
18       with you.  It wasn't as though you decided, "I am going
19       to go back and think about this", and then after you
20       thought about it you then thought, "Oh dear, I made a
21       bit of a mistake with this".  That didn't happen, did
22       it?
23   A.  No, I took a lot of notes, I would be taking a lot of
24       notes at the time.  There's no way I could remember the
25       alphabetical characters of the fingerprints without
page 107
 1       writing them down.
 2   Q.  Of course.
 3           I would like you to look, if you can, please, at the
 4       front page of two of the reports.  They are DB0201 and
 5       DB0202.  If we can perhaps have these side-by-side.
 6           It has been pointed out that the dates at the
 7       bottom, the one on the left it's not very clear but I
 8       think --
 9   A.  It's 08/05/07.
10   Q.  Yes.  That's obviously the first one and then the one to
11       the right is the second.
12   A.  Yes.
13   Q.  You can see the date is different.
14   A.  Yes.
15   Q.  In addition to the date being different, I take it you
16       agree with me the format of the date is different in the
17       sense that the one on the right has a dot between the
18       digits and the one on the left has a slash between the
19       digits.  Do you see that?
20   A.  Yes, I see that.
21   Q.  Are you able to offer any explanation as to why not only
22       has the date changed but the format has changed?
23   A.  No idea.
24   Q.  You can't?
25   A.  No idea, no.
page 108
 1   Q.  In fact, if you take it from me that the one on the
 2       right is the only one that has dots between the digits,
 3       is there any possibility, Mr Graham, that it was when
 4       the Parliamentary Inquiry was considering it you not
 5       only printed the one on the right off but you manually
 6       inserted the date and in the sense of typing it in or
 7       altering it in your computer and you happened to put it
 8       in in a different format?
 9   A.  I can assure you that could not have happened.
10   Q.  Why not?
11   A.  Why not?  Because I know that I didn't do it.  I mean,
12       I've no recollection that the dates at the bottom of the
13       report but to produce it just for the -- for the
14       Parliamentary Inquiry?
15   Q.  Yes.
16   A.  The problem was already drawn to my attention by the
17       Tayside officers in the year 2000.
18   Q.  You will understand the difficulty that certainly on
19       this side we have that there appears to be no record, as
20       far as can be discovered in David Asbury's file at the
21       solicitors of the amended 17th report coming in.  You
22       will understand that it's a bit of a mystery at least on
23       this side --
24   A.  You'll know I sent you a letter in 2006 pointing out
25       that I really can't be responsible for the filing system
page 109
 1       of a solicitor.  I can't explain why a solicitor doesn't
 2       have what I think I sent them.  I've no way of knowing
 3       that.
 4           Will I read the letter I sent you in 2006?
 5   Q.  No, I understand your position and I am sure if anybody
 6       else wants you to read it out they will ask you to do
 7       so.
 8           But can I ask you this, going back to the
 9       examination you carried out within the Procurator
10       Fiscal's office, because I think we can see you examined
11       13 prints, of which one was QI2 which I think was partly
12       said to be of Marion Ross and a part of that mark was
13       said to be David Asbury's?
14   A.  Yes.
15   Q.  As far as that examination is concerned, can you recall
16       that you got 16 points relating to each part of QI2?
17       Did you agree with SCRO on these?
18   A.  My examination was never -- I never went to 16 points.
19       All my examinations are to my satisfaction.  Whether or
20       not there's 16 characters there, as I pointed out I've
21       not got the facility to put them either on a comparator
22       and I can't go making small dots for each
23       characteristic.  So, no, I don't know if they were
24       16-standard.  I was asked are they identifications and
25       they were all identifications.  I don't take it to the
page 110
 1       16 on every occasion because I don't have the facilities
 2       to do that when I go to these things.
 3   Q.  At some stage of course you when you did have cause to
 4       count Y7 you were not able to get up to 16.  You
 5       explained that very clearly.  You might have got more
 6       than 8 at some stage but you never got to 16.  That's
 7       right, isn't it?
 8   A.  Yes.
 9   Q.  I take it that whether you agree with the 16-point
10       standard or not, by the time of not only David Asbury's
11       trial but Shirley McKie's trial, 16-point standard was
12       held to be the threshold below which there would be no
13       acceptance of variance.  You understand that, don't you?
14   A.  Yes, I do.
15   Q.  Therefore, when David Asbury's defence team asked you to
16       examine the various fingerprints, as I understand it,
17       your evidence actually was, well, certainly with regards
18       to Y7, you were unable to give evidence to support SCRO
19       to the required standard.  That's right, isn't it?
20   A.  Yes.
21   Q.  Can I ask why is that not in your report?  Why have you
22       not said, "I've examined it.  I'm satisfied but I can't
23       get to 16 points"?
24   A.  Because I didn't have the facilities, the laboratory
25       facilities.  I was in private practice when I retired in
page 111
 1       1991.  I've examined almost every case that -- almost
 2       every disputed one in -- well, every one that a lawyer
 3       was disputing in Scotland and at no time have I taken
 4       them all to the 16-point standard because of the nature
 5       of the job I was given.  I was there to have a look at
 6       the evidence of the police.  Did I agree with the
 7       identifications?  Yes, I did.
 8           When I had a doubt about anything, I would notify
 9       the lawyer who gave me the job either I didn't think it
10       reached the standard or that the enlargement showed
11       points that weren't there and the lawyers were not
12       interested.  They came back to me, "Is it an
13       identification or not", and the answer was, "Yes, it's
14       an identification".
15   Q.  You see, Mr Graham, I am sure you understand that there
16       may be some of us in our capacity as lawyers
17       representing individuals and if you were in a
18       fingerprint case it might be something that we would
19       like to know from the expert to say, "I can't get
20       16 points in this.  I've looked at it.  I've examined
21       it.  I can't get 16 points", because then what will
22       happen is you can be led as a defence witness and you
23       say, "There's a 16-point standard.  I can't get 16".
24           Do you understand the importance of it?
25   A.  Yes.  I reported to several solicitors that I could not
page 112
 1       get to the 16-point standard.
 2   Q.  Did you do so in this case?
 3   A.  In this case?
 4   Q.  David Asbury --
 5   A.  I got to every -- I got to the -- well, no, I didn't
 6       have to do that because I thought probably the 16 would
 7       be there.  When I was pretty sure I didn't think they
 8       would be there, I would report it if I had some doubt
 9       about the quality of the SCRO work.  I had no doubt
10       whatsoever about the quality of the work of identifying
11       all the fingerprints.  So the 16-point standard, so far
12       as I was concerned, didn't matter.
13           It was to my satisfaction and the solicitors were
14       happy with -- they engaged me based on my knowledge and
15       experience and they were happy to accept what I told
16       them.
17   Q.  But I think we are agreed, Mr Graham, that what you did
18       not say was, "I can't get 16 points on this and that is
19       the legally required standard.  I don't agree with it
20       but that's the standard".  We agree that you didn't tell
21       them that; is that fair?
22   A.  I didn't tell them that I couldn't get to the -- I
23       probably could have got in every other fingerprint.  The
24       problem was the Y7 one, not the others.  Y7 was the only
25       problem one.
page 113
 1   Q.  Can I ask you just to lean forward to the microphone a
 2       little bit.
 3   A.  Yes, Y7 was the difficult one.
 4   Q.  Let us just deal with Y7, if we may.  In the course of
 5       your evidence in the David Asbury case you were asked
 6       about Y7.
 7           Do you remember being asked about Y7?
 8   A.  Yes, I was.  I've not got the transcript of the trial so
 9       I can't exactly know what was asked and what I said but
10       having a look at the transcript of this Inquiry here it
11       would seem it says that I gave evidence for the defence.
12       I think I was actually called by the prosecution in the
13       case.
14   Q.  Yes, I think you may be right about that.  We do have
15       access to a note by a police officer who was present
16       during the Asbury trial.  Perhaps if we just give you
17       that to look at.  It's CO0214 and if you take it from me
18       because there was a police officer who would give
19       evidence, ie Shirley McKie, a senior officer was asked
20       to come along and observe the proceedings.
21           Can you go to page 101 and we can go right through.
22       I am not sure why it begins with the trial of Shirley
23       McKie but we can certainly see on -- I am sorry, can you
24       go back just a few pages.  There's a difference in the
25       PDF.  It is page 93 at the top.
page 114
 1   MR MOYNIHAN:  If you looking for the Asbury trial my note
 2       says 0215 not 4 -- 0215.
 3   MR SMITH:  Thank you, yes.  If we can call that one up.
 4       Paragraph number 125, I think, is what we should be
 5       looking for.
 6           You will see at the bottom of page 125 it has
 7       Tuesday 3rd June 1997 and it has your name there and it
 8       does say and a defence called witness Malcolm Graham.
 9       Do you see that?  I presume -- I realise it's a long
10       time ago, Mr Graham, and I certainly couldn't be
11       critical if you don't remember who called you but ... I
12       think we can see, in fact, in paragraph 124 the defence
13       addressed the court informing them they had one further
14       witness to call but he was unavailable that afternoon.
15       So it does appear that the defence probably called you.
16   A.  It was the defence, I thought it was the prosecution.
17   Q.  It's a long time ago.  I am sure we can all understand
18       that.
19           Can you go on to the next page, please.  It explains
20       what the evidence was and if we can go on to the next
21       page, 126.7 at the top of the page, I think we can see
22       it's not a very good copy but just reading out what I
23       think is salient:
24           "The Advocate Depute then asked the witness if he
25       had been asked to examine a further print mark Y7, the
page 115
 1       print of DC Cardwell.  The Advocate Depute wondered if
 2       it had been the defence solicitor who had suggested that
 3       the print may or may not have been put there properly to
 4       which the witness replied:
 5           "'It appeared to me to be a very natural print, it
 6       did not appear to have been taken from elsewhere.'
 7           "The AD then asked if it was theoretically possible
 8       to plant a print and was told that there were a lot of
 9       technical difficulties in planting a print and so on.
10       He was asked to explain the definition of a latent print
11       to the court and concluded from the witness the
12       explanation that you can't transfer a developed print.
13       The witness agreed that this was so and that in this
14       particular instance there was no sign of disturbance
15       around the print.  The AD concluded his examination
16       by asking if the print Y7 was entirely natural looking
17       to which the witness replied yes.  He wondered if there
18       could be any doubt that it was DC Cardwell's to witness
19       the witness replied, 'No doubt'."
20           I realise we are looking at someone else's
21       impression but there does not appear to be any
22       suggestion there there was any difficulty in you
23       reaching the 16-point standard?  You agree with that
24       much I take it?
25   A.  That doesn't come into it, any difficulty in reaching
page 116
 1       the 16-point standard.  I certainly didn't mention
 2       it -- I certainly mentioned that it was without doubt an
 3       identification.  This is not a transcript of the actual
 4       trial.  This is somebody's perception of what was going
 5       on, I take it.
 6   Q.  Of course but it broadly fits in with your recollection
 7       of the evidence, does it?
 8   A.  The definition of a latent print to the court and
 9       concluded from the witness explanation that you can't
10       transfer a developed print, it's -- probably I said that
11       somewhere in the context of something but it certainly
12       wouldn't be in that.  He's interpreted what my
13       definition of a latent print was and then came up with
14       this part, I maybe said you can't transfer a developed
15       print, which I agree, you can't do that.
16   Q.  Of course, at that stage in David Asbury's trial the
17       feeling was or the suggestion was being made that
18       perhaps the fingerprint had been transmitted or forged
19       or something --
20   A.  Yes, that's right.
21   Q.  -- which again would explain why that evidence was being
22       discussed with you about whether it looked to be
23       natural, whether it looked to be --
24   A.  Yes.
25   Q.  That all fits in, doesn't it?
page 117
 1   A.  Yes.
 2   Q.  Can I come forward then to Shirley McKie's trial.  You
 3       didn't actually see the trial, did you?
 4   A.  No, I didn't.
 5   Q.  As far as that trial was concerned, even by that stage
 6       you were unable to reach 16 points with regards to Y7.
 7       You never had been able to get it up to 16?
 8   A.  I'd never seen the material again up to and beyond the
 9       McKie trial.  I only saw the information on the one
10       occasion and that was at Kilmarnock.
11   Q.  If you had been called by either the prosecution or the
12       defence in the Shirley McKie trial, if you had been
13       called and asked the question, "Are you able to reach
14       the 16-point standard", you answer would have been no.
15   A.  That's an entirely different situation.  If I had been
16       called, if I'd been notified that I was going to be a
17       witness in a perjury trial I would have re-examined all
18       the productions, including material that I had never
19       seen, and then I would have decided whether I could find
20       16 or not.  I was never given the opportunity to be a
21       prosecution witness in the perjury trial.  I wish I had
22       been.
23   Q.  Why?
24   A.  Because perjury was committed and I felt that SCRO
25       needed all the support they could get and I feel that
page 118
 1       they were let down quite badly in that trial.
 2   Q.  Do you recall putting a posting on an Internet site
 3       ONIN?
 4   A.  Yes, I do.
 5   Q.  I would like you to look please at a document CO1783,
 6       please -- the second page.
 7           I think this is a print-off from the website.  We
 8       see at the top of the page it says posted by Malcolm
 9       Graham on February 23, 2000.
10   A.  Yes.
11   Q.  Then you say:
12           "I recently posted comments regarding the
13       fingerprint identification concerning Ms McKie.  I
14       realise I have caused great distress to Mr McKie by my
15       comments and wish to withdraw them unreservedly.  I
16       sincerely apologise."
17   A.  Yes.
18   Q.  The comments that you left on the site were to the
19       effect, wasn't it, that you were satisfied that the mark
20       was Shirley McKie's, words to that effect?
21   A.  Yes.
22   Q.  I would like you to look at another document please,
23       CO0877.  This bears to be a letter from yourself in
24       July 2000?
25   A.  Yes.
page 119
 1   Q.  I take it that is your handwriting and your signature at
 2       the bottom?
 3   A.  That is, yes.
 4   Q.  I think what you say is:
 5           "Dear Mr McKie, probably the last thing you want
 6       from me is a belated letter of apology for the distress
 7       and anguish I and others have caused to you, your
 8       daughter and family."
 9           I will read the entire text and then we'll come back
10       to it:
11           "When the First Minister in Parliament stated that
12       the fingerprint in question did not belong to Ms McKie
13       it clearly indicated that I had made a terrible mistake.
14       Until that time I truly believed that I was correct.
15       There is nothing I can say or do that can undo the wrong
16       that you, your daughter and family have suffered other
17       than offer my heartfelt sympathy and sincere regret."
18           Now I understand that you, as it were, moved away
19       from that retraction, that apology.  Your position today
20       is that you are sure about the identification.  Is that
21       right?
22   A.  I moved away from the apology quite quickly when I
23       realised that the evidence founded on by the Scottish
24       Executive was on the basis of two experts who they
25       preferred against the experts that they didn't prefer
page 120
 1       which, was myself and others.  It was purely a balance
 2       between myself and other experts and I certainly would
 3       not have produced an apology of that nature if I had
 4       known that.  I thought there had to be some substantial
 5       evidence to support a statement that -- a Government
 6       minister making a statement of that nature.
 7   Q.  And you don't think that the evidence of two experts of
 8       international repute is sufficient evidence for the
 9       Government to rely on; is that your position?
10   A.  Certainly, that's my opinion.
11   Q.  So how many experts of international repute would you
12       feel that the Government would be entitled to rely upon?
13   A.  I don't think it's a matter of counting experts against
14       experts.  I think what we've got to look on is all
15       experts aren't equal.  You have got capable experts or
16       people who are more expert than others.  You've got good
17       lawyers, poor lawyers.  You have got good experts, poor
18       experts.  You've got a whole range of people in between,
19       some that do a competent job, some that aren't quite as
20       competent.  As the head of a big fingerprint department,
21       I know full well there are experts that you can rely on
22       more and experts that you can't and there are some
23       experts that are prepared to say anything if it helps
24       a case.
25   Q.  Did you know who the experts were that the Government
page 121
 1       was relying on in the issue of --
 2   A.  I must have just read it in the press, it was Wertheim
 3       and Zeelenberg or Zeelenberg -- two people, an American
 4       who gave evidence in the perjury trial and another
 5       expert who came from Holland I think it was.
 6   Q.  I think it, in fact, was Mr Zeelenberg and Mr Rudrud, a
 7       Norwegian gentleman who had been giving advice to the
 8       Government.
 9   A.  I took it to be Wertheim.  I may be wrong.
10   Q.  Mr Graham, did you know anything about Mr Zeelenberg's
11       qualifications and experience?
12   A.  I know -- well, I'll have read about them, yes.  I know
13       that he was given a test to do by the English Forensic
14       Science Society and managed to identify one out of ten
15       prints and all the fingerprint bureaux had that test and
16       the man came out the worst in it.  He was unable
17       to identify pretty basic fingerprints but a nice
18       performer.  He performs very well.  I saw his
19       performance in the Scottish Parliament and it was
20       fluff -- nothing more than fluff -- appalling.
21   Q.  Can I ask you who told you that Mr Zeelenberg himself
22       had sat the test and had only got one?
23   A.  I'm a member of the Forensic Science Society and the
24       whole list was given in the publication.  In fact, I was
25       a serving officer and we'd get our own returns from
page 122
 1       these tests.
 2   Q.  So just so we understand it, you think that
 3       Mr Zeelenberg's performance was fluff?
 4   A.  His presentation was, yes, but highly acclaimed by the
 5       MPs, the MEPs(sic) that were there and one or two
 6       others.
 7   Q.  You know of course that he has a very close association
 8       on giving advice to Interpol; did you know that?
 9   A.  Very good for him.  I know absolutely nothing about the
10       man other than his ability to identify fingerprints and
11       it's pretty poor.
12   Q.  Dealing with your views about other individuals, do you
13       remember in the course of your evidence before the
14       Justice 1 Inquiry saying something to this effect: what
15       is remarkable -- and this is about Mr Wertheim -- what
16       is remarkable is Wertheim's influence in the whole
17       affair.  I seriously doubt Wertheim's qualifications and
18       experience.  I think that he lacks even the most basic
19       knowledge of fingerprint work and I am sure that when he
20       was engaged by McKie he had no knowledge of fingerprints
21       whatever.  I do not believe him.  I think that the man
22       tells lies and is an absolute charlatan."
23           Do you remember saying that?
24   A.  Oh, I certainly said that, yes.
25   Q.  Do you stick by that, do you?
page 123
 1   A.  Yes, I do.
 2   Q.  What investigations did you cause to be carried out into
 3       Mr Wertheim's qualifications and experience
 4       before making that public statement?
 5   A.  I think that is the problem.  I don't think there was
 6       any proper investigation carried out by anyone into
 7       Mr Wertheim.
 8   Q.  I am sorry, my question was slightly different.  What
 9       investigations did you carry out before you made that
10       very critical public statement?
11   A.  I didn't, but I based it on Mr Wertheim's response to
12       questions by the MSPs in the Justice Committee and I
13       think that's in the text that you've got there, surely.
14   Q.  You said:
15         "I think that the man tells lies and is an absolute
16       charlatan."
17   A.  If you go -- yes, if you go to the previous part of the
18       one that I give reasons why the man showed an abysmal
19       lack of knowledge of fingerprints.
20   Q.  Can you tell us what lies he told, please?
21   A.  Yes.  Well, to me it was quite ridiculous.  The man says
22       he took 100 copies of Shirley McKie's left thumb, 100
23       copies.  He felt that it was a simple fingerprint to
24       identify and yet needed 100 copies of her finger to show
25       it.  Every one of the 100 was a plain impression.  A
page 124
 1       person who's been in fingerprint work for a week knows
 2       that you take rolled impressions on every occasion.
 3   Q.  I think -- I'm sorry, that's the lie that he told, is
 4       it?  Or was there more?
 5   A.  No, there was more.  One of the MSPs asked, "What did
 6       you do with the 100?"
 7           "Oh, I sent them off to people."
 8           "What people?", didn't know.
 9   Q.  Right.  So it was really your judgment of his
10       performance before the Parliamentary Inquiry that caused
11       you to call him a liar and a charlatan; is that right?
12   A.  Yes.
13   Q.  Were you aware that evidence was also given in court by
14       Mr David Grieve on Shirley McKie's behalf?
15   A.  I didn't hear his evidence at all.  He wasn't at the
16       Justice 1 Committee meeting.
17   Q.  Are you aware that David Grieve has a career going back
18       to 1965 in Illinois State Police Department?
19   A.  No, I wasn't aware of that but I know that Mr Wertheim
20       got support there but I also know that he got support
21       from Allan Bayle and a Ron Cook for his presentations on
22       the BBC programmes and neither of these individuals were
23       much ... that they're not, they're pretty poor
24       Fingerprint Officers, Bayle and Cook.
25   Q.  You see, of course, to the extent that some people say
page 125
 1       it is Shirley McKie's print and others say it is not,
 2       someone is wrong, obviously.
 3   A.  Evidently.
 4   Q.  Are you prepared to acknowledge, Mr Graham, that there's
 5       a possibility that you might be wrong?
 6   A.  Well, I did acknowledge that possibility when I sent him
 7       a letter.  I've since changed my mind but mistakes are
 8       made in fingerprint examinations.  Everybody knows that
 9       that happens.  The Americans recently identified a print
10       in Madrid that didn't belong to the bomber.  There's
11       been several mistakes in the UK, two of them of which I
12       am aware of, and there was one I was involved in in my
13       own department.  It never got outwith the department and
14       the subjective nature of fingerprint work means that
15       mistakes are almost bound to happen at certain times.
16       It's the quality of checking to ensure that mistakes are
17       picked up that is very important.  But mistakes do
18       happen.
19   Q.  I take it you would be prepared to acknowledge that you
20       yourself have made a mistake in the past.  It may have
21       been caught but you yourself have made a mistake in the
22       past.
23   A.  I don't think I've ever mis-identified a fingerprint
24       unless you have knowledge of one that I have been
25       involved in other than this -- you obviously have the
page 126
 1       view that I've mis-identified this.
 2   Q.  I am not trying to catch you out --
 3   A.  I'm sure you're not.
 4   Q.  -- I'm just wanting to understand whether you are
 5       prepared to acknowledge that you may be wrong on this
 6       and I think, in fairness to you, though you are fairly
 7       sure about your identification you are not ruling out
 8       the possibility you might be wrong.  Is that fair?
 9   A.  I take care in all my examinations but there's one point
10       I would make: when I was in the Police Service, in a
11       Fingerprint Bureau, every fingerprint had to be checked
12       by a colleague.  The fingerprint that I looked at here
13       was not checked by anyone that I knew so, obviously,
14       without corroboration, you're on your own and because of
15       that I think you're even more careful that you're not
16       making a mistake because I've not got a fall-back to
17       have another look at it.
18   Q.  There is one last matter I want to ask you about and
19       that is this: do you remember it was actually 28th
20       May 1999, two weeks after the acquittal of Shirley
21       McKie, writing a letter to the Herald newspaper.  Do you
22       remember writing to the Herald?
23   A.  I must have wrote a dozen letters to the Herald and to
24       the Scotsman and very, very difficult getting them
25       published.  If you would give me the idea or the content
page 127
 1       of one of them ...
 2   Q.  Yes.  Well, in one of them you said something to the
 3       effect of to roll out four fingerprint experts from the
 4       SCRO all based at Strathclyde Police Headquarters to
 5       speak to the identification smacks of desperation and
 6       ineptitude.
 7           Do you remember writing something like that?
 8   A.  I did write that, yes.
 9   Q.  Can I ask what is it --
10   A.  Ineptitude of the prosecution, not of the SCRO
11       witnesses.
12   Q.  Oh I see.  So this is a criticism, is it, really
13       directed against the prosecution system rather than the
14       individuals --
15   A.  I always had the view that there should never have been
16       a prosecution for perjury in that case.  That was always
17       my view.  The girl should have had her hand rapped.  It
18       was purely a disciplinary thing and would have been in
19       my own force at that time.  We never would have gone to
20       that extent of charging a young woman with perjury for
21       that, a person of impeccable conduct.
22   Q.  Can I ask what your concern was in that letter by
23       referring to the SCRO all based at Strathclyde Police
24       Headquarters.  That seems to be something that you were
25       pointing out.  What was your concern?
page 128
 1   A.  Nothing special in that.  I have never known a
 2       fingerprint case, it maybe happens in the West of
 3       Scotland, where you needed more than two fingerprint
 4       experts to prove a fingerprint.  But to produce four
 5       fingerprint experts in a High Court trial showed that
 6       the prosecution knew they were in a bit of difficulty.
 7       You would never use four fingerprint experts for a case
 8       like that.
 9   MR SMITH:  Thank you very much, Mr Graham.  I've no further
10       questions.
11   THE CHAIRMAN:  Mr Holmes?
12   MR HOLMES:  Thank you, sir.  There are three matters that I
13       would like to ask Mr Graham about: the first is his own
14       examination of the fingerprint Y7; the second is just
15       briefly on his examination of the other fingerprints
16       relating to this case; and the third is to do with
17       opinions that he has expressed since.
18   THE CHAIRMAN:  Yes.  Very good.
19                   Cross-examined by MR HOLMES
20   Q.  Mr Graham, if I can ask you first in relation to Y7, you
21       mentioned in your statement that there was obviously
22       some distortion in the mark.  Can you give us an idea of
23       what the cause of that distortion might be?
24   A.  Not really, just slight movement of the finger when the
25       mark was deposited probably.  Are you talking about the
page 129
 1       top of the print which was a second touch?
 2   Q.  Well --
 3   A.  I mean, all fingerprints are distorted to some extent
 4       with the nature of the ball of the finger, but this one
 5       in particular was very noticeable at the top of the mark
 6       where it had been probably a repositioned finger, a
 7       second touch.
 8   Q.  So your view is that because of the distortion in
 9       particular at the top part of the mark that it was a
10       double touch?
11   A.  Yes.
12   Q.  It's been suggested in evidence by other witnesses that
13       the distortion in this mark can be explained by a
14       difference in pressure alone.  What is your view of
15       that?
16   A.  Based on different pressure?
17   Q.  Yes.
18   A.  No not alone.  There would be a different pressure
19       possibly in the second touch but the distortion that was
20       there wasn't just pressure.
21   Q.  Why is it that you say that?
22   A.  Because the ... a left-handed thumb at the very top of
23       the edge tends to have ridges that run to the left.  A
24       right-handed thumb at the very top near the nail has
25       ridges that tend to run to the right.  This fingerprint
page 130
 1       had ridges at the very top part that tended to run to
 2       the right.
 3   Q.  So from that it's your conclusion that pressure alone
 4       could not possibly have caused the distortion; there
 5       must have been some movement of --
 6   A.  Some movement of the finger.
 7   Q.  You have said as well that in relation to fingerprints
 8       in general, not specifically Y7, that five or six points
 9       could give you a strong probability of a match.  Am I
10       understanding you correctly there?
11   A.  Yes.
12   Q.  The degree of that probability, does that to some extent
13       depend on where within the fingerprint those points are
14       to be found?
15   A.  Not really.  Deltas of fingerprints sometimes tend to
16       have -- I mean, they all come into a single point from
17       three different directions and you might get more
18       characteristics in that area.  But ... I've lost the
19       thread.  Give me the question again.
20   Q.  Well, you were --
21   A.  No, the place where the characteristics were found
22       really doesn't matter.
23   Q.  You mentioned there a delta.  Is it possible that more
24       characteristics are found nearer a delta in any given
25       fingerprint?
page 131
 1   A.  You tend to get more characteristics because of the
 2       three different rows of ridges all coming together in a
 3       delta.  You sometimes get more characteristics in that
 4       area.
 5   Q.  Do you get more distinctive characteristics in that
 6       area or is it just a greater number?
 7   A.  Not distinctive, all characteristics are distinctive.
 8       Can I mention a thing that I read in the transcript
 9       about lakes and islands?  It was suggested in the
10       transcript by people in the Crown Office that Scotland
11       tend to mark a lake or an island as a single
12       characteristic whereas in England -- no, in Scotland
13       they regard a lake and an island as two each
14       characteristics.  In England they would regard the lake
15       as one characteristic.  I don't think I've heard so much
16       nonsense for a long time.
17           A lake is purely a ridge that splits into two and
18       then rejoins.  It can be either a tiny circle or it can
19       be almost the whole length of the finger, a big
20       sausage-shaped lake.  Whether it's regarded as two
21       characteristics or one is entirely up to the person
22       making the identification.  An Island is the same.  An
23       Island can be either the length of a single pore, which
24       is a tiny dot, or it can be almost the whole length of
25       the fingerprint carrying on in a U-shape and, obviously,
page 132
 1       they are two separate characters when you get to either
 2       end.  It's a matter of judgment by the fingerprint
 3       officer.  But the crux of the thing is a lake or an
 4       island is at least twice and maybe three times scarcer
 5       in a fingerprint than a bifurcation or a ridge ending.
 6       So it really -- a lake is at least two characteristics
 7       and an island is two characteristics, if they are
 8       a decent length.
 9           So while maybe in England or some people in England
10       regard them as one characteristic it depends on the
11       length of them and just where they are about.
12   Q.  I understand.
13           If I can move on to the other fingerprints apart
14       from Y7 in this case, you provided a report.  It is
15       DB0202 and if I can just get you to look at page 2 of
16       that, please.
17           You have already confirmed that the identification
18       of Y7 you agreed with the SCRO's findings; is that
19       correct?
20   A.  Yes, it is.
21   Q.  I think you said when answering the questions from my
22       learned friend, Mr Smith, that you agreed with their
23       findings in relation to QI2 as well?
24   A.  Yes.
25   Q.  Just looking at that report as well, it appears that you
page 133
 1       also agreed with the SCRO's finding in relation to
 2       another two marks which are of interest in this case,
 3       those are XF and QD2?
 4   A.  All the SCRO findings in the report.
 5   Q.  Thank you.
 6           One final thing and it's an Internet posting
 7       authored by you that you have been asked about.  I
 8       wonder if we could look at the posting that gave rise to
 9       that which is also lodged.  It is CO1782.
10   A.  Yes.
11   Q.  Just looking at it, it says:
12           "I examined the original photograph of the
13       fingerprint on the doorframe and have no doubt that the
14       SCRO identification was correct."
15           Is it Y7 you are speaking about when you posted
16       that?
17   A.  Yes.
18   Q.  "The identification enabled an outstanding fingerprint
19       from a murder inquiry to be eliminated.  I have no doubt
20       that the fingerprint was made by Ms McKie and to have
21       left that fingerprint outstanding and give a possible
22       line of defence to the person charged with murder would
23       have been misleading.  Mr McKie was fortunate" --
24   A.  That should be Mrs McKie or Ms -- M-S, sorry.
25   Q.  So if we read that as:
page 134
 1           " ... Ms McKie was fortunate to have been acquitted
 2       but it is doubtful if any jury would have convicted a
 3       police officer with an impeccable character of the
 4       serious charge of perjury when a prison sentence was
 5       likely.  In my opinion, the two American experts who are
 6       no doubt sincere in their belief were pushing at an open
 7       door and gave the jury a way out."
 8           Is that a posting that you made on the website that
 9       you have already referred to?
10   A.  I posted that and then I withdrew it later on the same
11       day.
12   Q.  Why is it you withdrew it later on the same day?
13   A.  I got a phone call from Mr McKie after 10.00 at night, a
14       kind of threatening phone call.  My wife was very upset
15       so I went up and immediately withdrew it.
16   Q.  What was said?
17   A.  It was said that I had been duped by SCRO, that I was
18       conspiring with them and that he would make sure I would
19       never work again.
20   Q.  Is it as a result of that telephone call that you later
21       posted the item that you have already been referred to?
22   A.  The man was very, very upset.  I certainly didn't want
23       to cause him any more problems than he already had.  But
24       I should make the point the work-rate increased
25       substantially after this case.
page 135
 1   Q.  Mr Graham, if I can ask you one final thing: when was
 2       your first contact with the present Inquiry?
 3   A.  Sorry, could you repeat that?
 4   Q.  When was your first contact with this Inquiry?
 5   A.  With this Inquiry?
 6   Q.  Yes.
 7   A.  When they decided to set it up, I think.
 8   Q.  Was it some time before you gave your Inquiry statement?
 9   A.  Oh, yes, yes.
10   Q.  Why was it that early on?
11   A.  Why was that?
12   Q.  Why was it that early on that you had contact with this
13       Inquiry?
14   A.  I don't quite understand your question, sorry.
15   Q.  Did you originally apply to be a Core Participant in
16       this Inquiry?
17   A.  Yes, I did.
18   Q.  And did you later yourself withdraw that application?
19   A.  I did.
20   Q.  Why?
21   A.  (Pause)
22   THE CHAIRMAN:  Would you like a moment?
23   A.  Can I leave, please?
24   THE CHAIRMAN:  Yes.
25                      (The witness withdrew)
page 136
 1   THE CHAIRMAN:  I think if it is a personal matter, it was
 2       for personal reasons, it won't be necessary to explore
 3       it.
 4   MR HOLMES:  I simply don't know, sir.
 5   THE CHAIRMAN:  I don't know either but I am just saying that
 6       if it is for personal reasons I don't think it is
 7       necessary to press what those might be because it might
 8       invade the privacy of the witness.  I am purely
 9       speculating but it is just when he became upset that I
10       thought it might be ...
11   MR MOYNIHAN:  Sir, might I suggest that we adjourn there?
12   THE CHAIRMAN:  I think we will adjourn for a few minutes and
13       a discreet inquiry can be made.  We will rise for ten
14       minutes.
15   (2.40 pm)
16                         (A short break)
17   (2.50 pm)
18                      (The witness returned)
19   THE CHAIRMAN:  Are you ready to continue?
20   A.  My Lord, I apologise --
21   THE CHAIRMAN:  That's all right.
22   A.  To answer the question, it's entirely a private family
23       matter.
24   THE CHAIRMAN:  It's a family matter.
25   A.  Yes.
page 137
 1   THE CHAIRMAN:  Well, I am sure it will not be pursued.
 2   MR HOLMES:  Mr Graham, I am grateful to you.  I have no
 3       further questions.
 4   THE CHAIRMAN:  Mr Macpherson, do you have any application?
 5   MR MACPHERSON:  No, sir, I have none.
 6   THE CHAIRMAN:  Miss Grahame?
 7   MISS GRAHAME:  I have one issue in relation to the
 8       difference between identification and elimination, if I
 9       may.  It shouldn't take long.
10   THE CHAIRMAN:  Yes.
11                  Cross-examined by MISS GRAHAME
12   Q.  Mr Graham, you gave evidence earlier about the
13       difference between eliminating a print and providing an
14       identification and am I correct in understanding that an
15       identification is to a 16-point standard but elimination
16       can be to a lower standard?
17   A.  Not really -- the 16-point standard is purely a court
18       thing.  You must have the 16 characteristics to take it
19       to a criminal trial.  The standard for elimination is
20       exactly the same, that the fingerprint officer must be
21       certain that it's an identification.
22   Q.  In your evidence earlier you were asked about the
23       difference and you seemed to accept there was a
24       difference between the two.
25           Could you perhaps explain to me then what the
page 138
 1       difference is, if I have misunderstood?
 2   A.  The only difference between an elimination and a case
 3       for trial is that a case for trial requires 16
 4       characteristics.  An elimination requires a fingerprint
 5       expert to be convinced and satisfied that it's an
 6       identification.  That's all that's required for an
 7       elimination fingerprint.
 8   Q.  What is it that would make that person satisfied that
 9       it's an identification?
10   A.  That the sequence of ridge characteristics, that it may
11       be that you've only got a fragment, a smaller area that
12       does not have 16 characteristics on it, it might just be
13       a tiny part of a finger.
14   Q.  I would like to ask you just one thing about your
15       report.  It is on the same point.
16   A.  Yes.
17   Q.  First of all, you understood that the SCRO officers made
18       an identification of Y7 as Ms McKie's and that was to
19       a 16-point standard.
20   A.  Yes.
21   Q.  We have looked at various versions of your report.  Can
22       I ask you to look at DB0202 and page 3 of the PDF,
23       please, which is also page 3 of the report.
24           We have looked at versions that have been corrected
25       and uncorrected.  This is actually the corrected version
page 139
 1       but for my purposes the phrase is exactly the same in
 2       both.
 3           Do you see at the second paragraph there which is
 4       headed "Bookmarked L"?
 5   A.  Yes.
 6   Q.  And that relates to Y7?
 7   A.  Yes.
 8   Q.  Do you see on lines four and five that what you have
 9       said there is:
10           "I compared it with the fingerprints of DC Cardwell
11       and agree with the identification."
12           Your report doesn't say, "I agree with an
13       elimination of Y7 as Ms McKie's", and you have already
14       explained to us in evidence you don't mention anything
15       about only finding seven points in sequence and
16       agreement?
17   A.  Yes.
18   Q.  Is it possible that given the wording that you have used
19       there, "identification" rather than "elimination",
20       together with the fact that you didn't raise the issue
21       with the defence about only finding seven points and the
22       fact that this doesn't appear to have been raised in
23       your evidence, is it possible that someone could have
24       perhaps misunderstood what your actual position was in
25       relation to Y7?
page 140
 1   A.  It may be somebody misunderstood what my position was.
 2       Who are we talking about there?
 3   Q.  I just wanted to confirm with you that it was possible
 4       that in the light of that there could have been a
 5       misunderstanding and that people weren't aware that
 6       you'd only identified 7 characteristics rather than 16?
 7   A.  The seven characteristics came in at the Gilchrist
 8       report part.  I don't think I mention seven anywhere
 9       else.
10   Q.  No, you didn't mention it anywhere else in your report.
11   A.  If I can just clarify this: I agree with the
12       identification.  I agreed that the fingerprint at the
13       scene of the crime and the one on the form was made by
14       the same person.  That's identification.  The fact that
15       it was an elimination really just means the same thing.
16   MISS GRAHAME:  Thank you very much.
17   MR MOYNIHAN:  I have no further questions, sir, thank you.
18   THE CHAIRMAN:  There are just one or two matters I would
19       like to clear up with you.
20           In the course of your evidence, you were asked about
21       if you see a number of points that are consistent, if I
22       can put it that way, and no unexplained differences and
23       your answer was that if you got 16 points you really
24       don't need to worry about the unexplained differences,
25       as I understood your evidence.
page 141
 1   A.  You're correct, my Lord.  If there are 16
 2       characteristics in sequence there can't be any
 3       differences.
 4   THE CHAIRMAN:  Maybe it is not a question you can answer but
 5       as you work your way down from 16, for example, at 15 or
 6       14, do you still worry about unexplained differences or
 7       is it a gradual process or what?
 8   A.  After 10 characteristics I don't think you would find
 9       any unexplained differences.
10   THE CHAIRMAN:  Because if there had been unexplained
11       differences you won't have got to 10?
12   A.  You wouldn't have got to 10.  You've got your 10
13       characteristics in sequence, my Lord, and unless the
14       differences are somewhere in there then they wouldn't be
15       in sequence but it's the sequential characteristics that
16       you've got.  When you go up to 16 there's no point in
17       going any further.  You're not going to find any
18       differences and if you do have a single difference
19       somewhere before you get to 10 or that, if it's a
20       different fingerprint you'll find dozens of differences.
21       You will not just find one.  There'll be many, many
22       differences.  It would be so obvious that you just
23       reject the fingerprint when you're searching it.
24   THE CHAIRMAN:  You never get to 10 or whatever.  As you say,
25       you have rejected it by then.
page 142
 1   A.  Yes, my Lord.
 2   THE CHAIRMAN:  That was the first question I wanted to ask
 3       you.
 4           The second was that in your statement to the Inquiry
 5       where you said -- and this was at paragraph 44 -- about
 6       Y7:
 7           "The quality of the mark was poor and, in my
 8       opinion, didn't have the necessary 16 points needed for
 9       a criminal prosecution."
10   A.  Yes.
11   THE CHAIRMAN:  I may have misunderstood this but I
12       understood that you never really had an opportunity to
13       consider this print under laboratory circumstances.
14   A.  That's right, my Lord.  I couldn't take it to the
15       ultimate.  Once I got -- once I became absolutely
16       satisfied with it, I would take it as far as I could and
17       that would be the end of my examination.
18   THE CHAIRMAN:  So insofar as you would appear to be being
19       critical of the SCRO experts who did examine it
20       apparently under laboratory circumstances, they may well
21       have been able to get to 16 points but you did not have
22       the opportunity that they had.
23   A.  That's correct, my Lord, and maybe it would have been
24       better if they'd prepared their enlargements in a manner
25       that I could see there were 16 characteristics there
page 143
 1       because they would have helped me as well.
 2   THE CHAIRMAN:  Yes.  So really your criticism, if one could
 3       call it that, has got to be read in that context?
 4   A.  Yes, my Lord.
 5   THE CHAIRMAN:  That you did not have the opportunity to see
 6       that.
 7           There is one last thing, if I could just ask you
 8       about: one witness has explained that a double touch can
 9       mean either the same digit touching twice or that digit
10       and another digit being involved in the same mark.
11   A.  That's correct.
12   THE CHAIRMAN:  I just want to clarify, when you say this is
13       a double touch, which of these is it or are you able to
14       say?
15   A.  You can't say, my Lord, because there would be something
16       underneath it that you don't see.  There would be
17       probably a part of the original touch below it then the
18       second touch would just be on top of that.
19   THE CHAIRMAN:  So it could be another digit superimposed on
20       what was there before?
21   A.  It could well be, my Lord.  It's very difficult when
22       you've got a situation like that.  You can't be
23       absolutely sure of anything.
24   THE CHAIRMAN:  Thank you very much, Mr Graham, and thank you
25       for coming along and assisting us.
page 144
 1                      (The witness withdrew)
 2   THE CHAIRMAN:  I understand you wouldn't be in a position,
 3       if we get that far, to cross-examine this witness today.
 4   MR SMITH:  That's correct, sir.
 5   THE CHAIRMAN:  We will see how it goes because we may have
 6       to finish at the end of your examination.
 7   MR MOYNIHAN:  Yes, sir.  I think, in fact, that seems to be
 8       the mood of those who might follow me.
 9   THE CHAIRMAN:  If that is the mood, that is what we will do
10       then.
11                      DAVID BRUCE (affirmed)
12   THE CHAIRMAN:  Your full names, Mr Bruce?
13   A.  David Bruce.
14   THE CHAIRMAN:  Take a seat please.
15   A.  I'll try my best but I've been suffering all week with a
16       severe throat infection.
17   MR MOYNIHAN:  I was going to say, first of all, there should
18       be glasses there if you want to take some water.  Just
19       help yourself, please.
20           Secondly, what you will find is that you will need
21       to move the microphone probably more centrally and
22       reasonably close.  I think you are fairly softly spoken
23       anyway with or without a throat infection.  You will
24       find if the microphone is working you can actually hear
25       your voice through the speakers behind you.
page 145
 1           If you feel uncomfortable and want to take a break
 2       just let me know.
 3           Mr Bruce, you have been provided with a copy of your
 4       statement.  Do you have that in front of you?
 5   A.  Yes, I do.
 6   Q.  Is that a statement you provided some time ago to the
 7       Inquiry?
 8   A.  Yes.
 9   Q.  And you signed it as a statement you were content with
10       at the time you signed it?
11   A.  Yes.
12   Q.  As we proceed, if there are any matters that you are no
13       longer comfortable with in the statement, then please
14       feel free just to indicate and to change.
15           I, in fact, want to ask you about four particular
16       matters picking up from your statement.  First of all, I
17       want to ask you some fairly general questions about
18       working practices within SCRO in 1997.  Secondly, I am
19       going to ask you about what we have come to call the
20       blind test in relation to Y7.  Thirdly, I want to ask
21       you about your involvement with the fingerprint QI2 and,
22       finally, I will ask you about signing of case envelopes.
23           So if I begin in relation to general working
24       practices, if you look within paragraph 7 of your
25       statement -- paragraph 7 is on page 4 -- I will give you
page 146
 1       just a chance to read paragraph 7 so you are familiar
 2       with it.  Then what I am going to ask you about in
 3       particular is working practices in relation to the use
 4       of the comparator machine.  (Pause)
 5           I understand that the ordinary way of working in
 6       relation to a fingerprint comparison would be that a
 7       fingerprint examiner would start by looking at the crime
 8       scene mark in isolation and try to identify what
 9       significant characteristics were observable in the crime
10       scene mark.  Is that correct?
11   A.  That would be the practices nowadays, yes.
12   Q.  You may want to lift up the head of the microphone.
13       That would be the practice today?
14   A.  Today, yes.
15   Q.  Then having examined the crime scene mark for any
16       significant characteristics, the examiner would then
17       bring in the known print that was to be compared?
18   A.  Yes.
19   Q.  He would look at that to see what the significant
20       characteristics there were in that?
21   A.  Correct.
22   Q.  And then using linen glasses, magnifying glasses, the
23       examiner would compare the two side-by-side?
24   A.  Yes.
25   Q.  To see whether an opinion could be formed as to the
page 147
 1       match or identity between the two?
 2   A.  That's correct.
 3   Q.  And then if the examiner wished to look at matters in
 4       any more detail, in particular if he wished to count
 5       points, he might take the mark and the print off to a
 6       comparator machine for closer examination?
 7   A.  Yes.
 8   Q.  And that's all the procedure today?
 9   A.  That is what we do today, yes.
10   Q.  Looking back to 1997, I have asked you to read
11       paragraph 7 because you do specifically say in the
12       middle of paragraph 7, perhaps towards the foot, you
13       have a sentence that begins:
14           "At the time in 1997 in certain cases experts would
15       put marks up on a screen and ask colleagues to look at
16       them to see if they would eliminate, identify or not."
17           Do I take it from that that in 1997 there would be
18       occasions in which a fingerprint examiner would be asked
19       by a colleague to look at a mark, a print, and would see
20       it for the first time mounted on a comparator screen?
21   A.  To my recollection that could have happened back then,
22       yes.
23   Q.  Also could it happen that the second examiner might
24       express an opinion to his first colleague based solely
25       on an examination of the mark and the print on the
page 148
 1       comparator screen?
 2   A.  12 years ago, possibly.
 3   Q.  When you say "possibly", that did happen in practice
 4       12 years ago?
 5   A.  In my recollection, yes.
 6   Q.  I think you may need to move the microphone closer to
 7       you.
 8           So that did happen from time to time?
 9   A.  Yes.
10   Q.  Do you say that that no longer happens?  Does that no
11       longer happen in practice today?
12   A.  Not that I can recall happening just now, no.
13   Q.  In relation to the blind test, the so-called blind test,
14       if I ask you to look at paragraph 5 of your statement
15       you will see that we have headed it up "Blind test".
16           In fact, would it be fairer to say that what you
17       understood at the time, a phrase you've used in the
18       statement, is you understood at the time it was some
19       form of quality assurance exercise?
20   A.  That was one of the things that was said at the time, as
21       far as I recall, yes.
22   Q.  By whom was that said?
23   A.  12 years ago I would assume it would be either
24       Mr Mackenzie or Mr Dunbar that said that ... but it's
25       12 years ago.
page 149
 1   Q.  That's okay.  I will make allowances for the fact it was
 2       12 years ago.  So as best you can recollect either
 3       Mr Mackenzie or Mr Dunbar mentioned it was a quality
 4       assurance exercise?
 5   A.  Yes, could have been.
 6   Q.  Was that when they were asking you to participate,
 7       before you participated or was that at some point
 8       afterwards?
 9   A.  I can't honestly recall.
10   Q.  Is it fair to say from what you said in your statement
11       at the time you did not know what the subject was of the
12       quality assurance, whether it was checking the
13       comparator machine or the printer or what else?
14   A.  No, I did not.
15   Q.  But you do now appreciate that what you were, in fact,
16       being asked to do was to look at the print that we have
17       come to call Y7?
18   A.  I know that now but not at the time.
19   Q.  In fact, what you were being presented with was that
20       print mounted on a comparator machine beside a
21       fingerprint of the lady Ms McKie?
22   A.  Subsequently that's what I believe but at the time we
23       just had a screen, there was a print showing and there
24       was a print from a fingerprint form showing and that was
25       all we saw.
page 150
 1   Q.  That's fine.
 2           In fact, as the examination proceeded, the only
 3       opportunity you had was to view it on the comparator
 4       screen.  You were given no opportunity to view it under
 5       linen glasses?
 6   A.  That's correct.
 7   Q.  What you say in paragraph 8 of your statement is that,
 8       from memory, you got eight points of comparison.
 9   A.  That was from my memory but whether that was in the one
10       piece, in total, on different pieces, I don't recall.
11   Q.  So whether it was in one section of the mark or the
12       whole mark you don't recall?
13   A.  No.
14   Q.  When you say you found eight points of comparison, do
15       you mean by that that you found eight points of
16       potential similarity or do you mean you found eight
17       points that were truly in sequence and agreement?
18   A.  I don't really recall because, as I said in my
19       statement, I wasn't even sure if it was an exercise to
20       do with the prints or the comparator, we just thought it
21       was some sort of quality assurance exercise.  So I can't
22       recall.
23   Q.  Had you by the point when you reported to either
24       Mr Dunbar or Mr Mackenzie at the conclusion of the
25       exercise, had you carried out as thorough an examination
page 151
 1       as you could in these circumstances?  Had you exhausted
 2       your examination of the print and the mark?
 3   A.  That's a hard question.  I don't really recall whether I
 4       spent ten minutes on it and then looked at it and seen
 5       the quality and thought I don't think I'm going to get
 6       any further here, if that answers your question.
 7   Q.  What I am interested in is to go to the next sentence in
 8       your statement.  You say:
 9           "With eight points one would never identify for
10       court."
11           Can you explain that?
12   A.  At that time you needed 16 characteristics in sequence
13       and agreement to take to a court trial.
14   Q.  So with 8 you had obviously not achieved the 16-point
15       standard?
16   A.  No.
17   Q.  The reason why I was asking you whether you had
18       exhausted your examination is -- perhaps maybe if I
19       stand back.
20           If you had been specifically asked simply to
21       eliminate a mark as opposed to identify it as that of a
22       suspect, might that instruction mean a different degree
23       of examination by you in ordinary circumstances back
24       then?
25   A.  It wouldn't have made a difference in the degree of
page 152
 1       examination but it could have made a difference in what
 2       conclusion you came to, whether it was only an
 3       elimination that wouldn't be required for court or, you
 4       know, you were looking for a full ident to take
 5       something to court.
 6   Q.  So the difference between an elimination and an
 7       identification would not alter the way that you would
 8       look at the mark but it would alter the way in which
 9       you'd either be able to go to court or not?
10   A.  It could do, yes.
11   Q.  This is why I was asking you whether you would have
12       exhausted your examination; in other words, if you
13       concluded by saying there are 8 characteristics, whether
14       you had looked to see if you could find 16 but had
15       concluded you could not, the most you could find were 8,
16       or if you just don't recollect at what point you
17       stopped?
18   A.  I think I must have exhausted the fact that I couldn't
19       get any more than eight and that was at the very most,
20       eight, and, as I said, it might not have been all in the
21       one piece it could have been four here, two there.  I
22       really can't recall.
23   Q.  That's fine.
24           I think one of the reasons why -- and this is
25       absolutely no criticism of you -- that you can't recall
page 153
 1       is the working practices back then do not require you to
 2       take notes of any examination to record for posterity
 3       the particular characteristics that were observed?
 4   A.  No.
 5   Q.  What is left uncertain to me in the reading paragraph 8
 6       is, having found eight points, what conclusion you would
 7       have drawn.  You could not go to court with eight
 8       points.  Did you reach any conclusion as to the
 9       relationship between the mark that we now know to have
10       been Y7 and the fingerprint we now know to have been
11       Ms McKie's?  Did you reach a conclusion or were you not
12       thinking in terms --
13   A.  I wasn't thinking at the time about a conclusion.  I was
14       only asked how many points I could get on it.  I didn't
15       know it was a conclusion question or it was just to do
16       with the comparator.
17   Q.  So, in other words, that's why you say in the second
18       sentence here with eight you could not have identified
19       for court and when you reported back all that you
20       reported back was you had found eight?  You didn't --
21   A.  I found the mark to be particularly -- what word can I
22       use -- fragmented.
23   Q.  Sorry?
24   A.  Fragmented.
25   Q.  So was there any question of you having said to the
page 154
 1       person to whom you reported back it was an
 2       identification, an elimination?
 3   A.  No.
 4   Q.  No, it was simply eight points?
 5   A.  Yes.
 6   Q.  As best you can recollect today -- and, please, I do
 7       acknowledge it is 12 years ago and you may have no
 8       recollection, do you have any recollection today with
 9       the combination of eight points whether you would have
10       been able to say it was an elimination, an
11       identification or would you have been uncertain?
12   A.  Uncertain.
13   Q.  Why would you have been uncertain with the eight points?
14   A.  Because of the standard of the mark.  The mark was a
15       particularly bad mark.  There was movement, fragmented.
16       Whereas if you had a perfect mark then eight points on a
17       perfect mark is a different consideration.
18   Q.  If I move from Y7 to take you on to the mark QI2 and
19       this begins in paragraph 10 of your statement.  I
20       understand from what you say in paragraph 10 that if I
21       tell you that the murder investigation was in
22       January/February 1997, you are indicating that you, in
23       fact, had no recollection of involvement with QI2 until
24       Chief Inspector Griffiths spoke to you, you believe,
25       some time in 1999?
page 155
 1   A.  That's correct.
 2   Q.  Chief Inspector Griffiths led you to understand that
 3       your initials were on an image of QI2?
 4   A.  Yes.
 5   Q.  And beyond the fact that your initials were on QI2 you
 6       then had no recollection of involvement with QI2?
 7   A.  No.
 8   Q.  Beyond the fact that your initials are on an image --
 9       and we will look at that in a moment -- do you today
10       have any recollection of involvement with QI2 at the
11       time of the original investigation in
12       January/February 1997?
13   A.  As far as I can recall, Chief Inspector Griffiths said
14       to me that he had been told that I had seen it on the
15       comparator and that's all that I knew, that I was told
16       by Chief Inspector Griffiths that it had been said to
17       him that I had seen it on the comparator but I do not
18       have any recollection of seeing it -- we looked at so
19       many different things on the comparator back then that
20       to remember every single one, I think, would be
21       impossible.
22   Q.  That is fine.  That's what I was going to ask.  So, even
23       prompted by Chief Inspector Griffiths in 1999 you
24       yourself then, and indeed today, have no personal
25       recollection of involvement with QI2?
page 156
 1   A.  No.  If somebody had come two weeks later and said, "Do
 2       you remember seeing that mark two weeks ago", then
 3       there's a much greater possibility but three years later
 4       and now I don't have any recollection at all of it that
 5       I've seen it at all.
 6   Q.  If I can bring up for you then for you to view the
 7       photograph DB0001, page 5.  In fact, if we go to page 4
 8       we will show people what we are looking at.  Page 4 we
 9       have simply reproduced digitally the photographs of the
10       marks.  So page 4 is a photograph of the mark itself
11       with some writing and page 5 is the reverse of the
12       image.
13           It has written on it:
14           "Deceased's on screen 31/01/97", a series of
15       initials and then below that:
16           "Accused's on screen 31/01/97" and, again, a series
17       of initials.  Do you see that?
18   A.  Yes.
19   Q.  Do you remember being shown the image at any stage with
20       your initials on it?
21   A.  I think I was shown that probably by Chief Inspector
22       Griffiths in 2000.  But can I just clarify that it's not
23       my initials that are on it -- it's not my signature;
24       it's just my initials.
25   Q.  I was going to cover that.  If we look at the initials,
page 157
 1       you would be EB?
 2   A.  Yes.
 3   Q.  Is there any possible of another EB, another examiner
 4       with the same initials as yourself?
 5   A.  Not that I recollect, no.
 6   Q.  So if it's EB then you are the most, in fact, the only
 7       likely candidate?
 8   A.  With the initials, yes.
 9   Q.  But the EB in neither case is written in your
10       handwriting?
11   A.  Sorry?
12   Q.  In neither case is the initial EB -- it has not been
13       written by you?
14   A.  No, in neither case.
15   Q.  We have covered the fact that, in practice, there would
16       be instances where an individual would first see and
17       indeed only see a mark on a comparator machine.  We have
18       been told by others -- if I can short circuit this --
19       that when an examiner has examined a mark on the
20       comparator, when he's finished and he's in agreement
21       with the identification, he will initial the comparator
22       screen.  Do you agree with that so far?
23   A.  That's what used to happen, yes.
24   Q.  Then at the point where four examiners have signed,
25       someone could then take the image off the comparator
page 158
 1       machine, could write, as we see here, transposing from
 2       the comparator screen on to the photograph to retain a
 3       permanent record of those who examined this particular
 4       mark?
 5   A.  That is the way we were ordered to do it back then, yes.
 6   Q.  Therefore, that would explain how your initials would
 7       come to be on this photograph that we assume that
 8       someone has understood that you are one of those whose
 9       initials were on the comparator screen?
10   A.  Somebody looked at initials on the screen and deemed
11       that one of them was mine, yes.
12   Q.  So looking at it, indeed here what is recorded is
13       "deceased's on screen, accused's on screen".  So that
14       would be consistent with someone -- I think, in fact, it
15       may be Mr Macpherson's handwriting here -- someone
16       recording this particular mark had been examined on
17       screen, ie on the comparator screen?
18   A.  Yes.
19   Q.  And it would be possible, therefore, that you have
20       examined the mark but only on the comparator screen?
21   A.  That would be correct, yes.
22   Q.  The next point in relation to this is if I take you to
23       another document that you have been shown relatively
24       recently about which you may have more recollection
25       SG0751.
page 159
 1   MR SMITH:  I am sorry to interrupt, sir, but we have a
 2       problem with LiveNote here.
 3   (3.28 pm)
 4                         (A short break)
 5   (3.43 pm)
 6   MR MOYNIHAN:  Mr Bruce, what I was going to ask you to do
 7       was to be shown on the computer, please, a document
 8       SG0751.
 9           This is simply, again, a digital copy.  Is this a
10       document that contains your signature in the bottom
11       right-hand corner?
12   A.  Yes.
13   Q.  If I go to the next page and open it up, first of all, I
14       will give you a chance to look at that.  This is an
15       enlargement of QI2.
16           Do you recognise that?
17   A.  Yes.
18   Q.  If I put that to one side and then bring up the next
19       page, an enlargement of the fingerprint of Marion Ross.
20   A.  Yes.
21   Q.  Do you recognise that?
22   A.  From 2004, yes -- sorry, 2006.
23   Q.  My understanding is that this is a charting that you
24       were asked to do in the run-up to an action in the Court
25       of Session, a civil action?
page 160
 1   A.  Yes.
 2   Q.  What you explain in your statement is that you have
 3       tried in this production to recreate what you would have
 4       seen in QI2 had you had a recollection of examining it
 5       back in 1997?
 6   A.  That's what I could have seen back then, yes.
 7   Q.  In fact, what you have marked up on the productions is a
 8       total of 12 points.
 9   A.  Yes.
10   Q.  Do I take it from that that given the opportunity to
11       study these enlargements of QI2 and the mark of
12       Miss Ross that you are unable to complete a full
13       16-point comparison?
14   A.  Yes.
15   Q.  So the maximum number of points in sequential agreement
16       that you observed on these productions was 12?
17   A.  That was all I was asked by the team at the time, they
18       said, "Try and get as many as you possibly could", and
19       what you can recall from, it would have been nine years
20       ago at that time in 1996, but until I saw that -- I had
21       no recollection of the mark until I saw that.
22   Q.  So because you had no recollection of the mark, it is a
23       somewhat artificial thing to say to you recreate what
24       you remember if you don't remember?
25   A.  That's correct.
page 161
 1   Q.  So really what you were being asked to do when this
 2       document was produced is, as best you can, to mark up
 3       the points that you regarded as being in sequential
 4       agreement?
 5   A.  Yes.
 6   Q.  And the maximum you could observe was 12?
 7   A.  Yes.
 8   Q.  Based on 12, if we make the assumption that this is what
 9       you would have been able to see back in 1997, if you
10       just make that assumption -- and I appreciate you have
11       no recollection -- if we make that assumption, would you
12       have been able, again, assuming you were working on the
13       comparator screen and you had counted 12, observed 12,
14       would you have been able to sign up to a match on the
15       comparator screen?
16   A.  As far as back that I would have thought a match for an
17       elimination but I don't see if I didn't get 16 would I
18       sign up for a match for a full identification.
19   Q.   I am grateful to you.  I have used the generic "match"
20       to cover the two possibilities, an elimination and an
21       identification --
22   A.  Well --
23   Q.  Sorry.
24   A.  Now eliminations and identifications are held more
25       similar.  Back then an elimination, there were some
page 162
 1       cases where you would eliminate a case, a person, and it
 2       was thrown aside.  It was an elimination.  It wasn't --
 3       sorry, an identification was held much more back then
 4       than an elimination was.
 5   Q.  An elimination just to discard something and put it to
 6       aside --
 7   A.  It was eliminated from the case.
 8   Q.  So if, for example, one had a fingerprint in a house
 9       identified as a very close friend of the deceased, not a
10       suspect in the case at all, a very close friend, you
11       would eliminate that print from any further
12       consideration as a person beyond suspicion but it was a
13       mark that could be eliminated and put out?
14   A.  That's generally the case.
15   Q.  You might make a match to the elimination standard on
16       fewer than the 16 points?
17   A.  Back then that was probably the case, yes.
18   Q.  So this would have been enough back then for you to have
19       made an elimination?
20   A.  If that's what I saw back then, yes.
21   Q.  But you would not have been able to match it to the
22       court standard for identification, the 16 --
23   A.  I'm assuming not and that's probably why I wasn't
24       signed -- I didn't sign it anywhere for -- I didn't sign
25       any envelopes or anything else.  That's my recollection.
page 163
 1   Q.  When you say not signing anything it could be that if
 2       you have matched it to an elimination standard, in other
 3       words, sufficient to conclude that this was the mark of
 4       Miss Ross, that you could have signed the comparator
 5       screen even though you have only counted to 12 points?
 6   A.  That's possible but, as I say, I have no recollection of
 7       doing that back then.
 8   Q.  It's okay.  If I stand back because I am not wanting to
 9       go beyond, as you say, your recollection, you have no
10       recollection then, so let's just look at it in a purely
11       hypothetical way.
12           You are looking in 1997, could it happen that you
13       would sign this screen as being satisfied that there was
14       a match even when you had failed to count 16 points?
15   A.  If it was an elimination, that's possible, yes.
16   Q.  That's fine.
17           Now the final point I was wanting to ask you about
18       was indeed what you have just mentioned, about the case
19       envelope.  If I could bring up please one final document
20       DB0529.
21           Do you recognise this as a style of case envelope
22       from that period?
23   A.  Yes.
24   Q.  I don't understand your signature to be there but
25       there's at least one witness has thought it might be so
page 164
 1       if I could ask you to look, as best you can, to see
 2       whether your signature is actually anywhere on the
 3       envelope?
 4   A.  No, not that I can see.
 5   Q.  So your signature's not anywhere on the envelope?
 6   A.  I can't see it.
 7   Q.  One possibility would be even though you have had
 8       involvement with QI2 which you may -- if you look at the
 9       marks identified, you will see that QI2 features in the
10       two lists, both for David Asbury and Marion Ross.  In
11       David Asbury's in the third line, "QI2 part of", and in
12       the third digit and then for Marion Ross it's "QI2 part
13       of", the second digit.
14           Do you see that?
15   A.  Yes.
16   Q.  So even though you are one of the individuals who, if
17       the initials on the back of the photograph are correct,
18       studied QI2, one explanation why your initials don't
19       appear on this envelope is that you were unable to find
20       the full 16 points required for court identification in
21       QI2?
22   A.  That would be my understanding, yes.
23   MR MOYNIHAN:  Thank you, Mr Bruce.  That is the end of my
24       questions of you.
25           Sir, I have discussed the matter with my learned
page 165
 1       friends and, indeed, despite the inconvenience it puts
 2       Mr Bruce to who has come to us out of his sick bed, the
 3       preference would be, I think, the balance would be to
 4       adjourn at this point and resume tomorrow morning with
 5       apologies to Mr Bruce.
 6   THE CHAIRMAN:  Is that convenient?
 7   A.  If it has to be, I'll come back tomorrow morning, yes.
 8   THE CHAIRMAN:  The only question -- we have been sitting at
 9       10.00.  We possibly should continue at 10.00 unless that
10       causes any great inconvenience.
11   MR MOYNIHAN:  It might be, since we are inconveniencing
12       Mr Bruce, I haven't asked him if any particular point in
13       time is easier than another.
14   THE CHAIRMAN:  Is 10.00 convenient for you?
15   A.  That would be fine, yes.
16   THE CHAIRMAN:  All right we will make it 10.00 then tomorrow
17       morning.
18   (3.55 pm)
19           (Adjourned until 10.00 am the following morning)
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