page 1 Tuesday, 22nd September 2009 (10.00 am) MR MOYNIHAN: Good morning. Since we were last here, the Inquiry team has carried out three pieces of work and has issued three supplementary chapters to the Core Participants who have issued the confidentiality agreements. Three of them are chapters 10, 11 and 12. Of those, two have not been published on the website at the moment because we will come to them later. The plan is, in this session of the Inquiry, to lead evidence that relates to all three of these chapters. Chapters 10 and 11 we will come to later. Chapter 10 relates to official reports concerning the Scottish Criminal Record Office, and now the SPSA and their response to the official reports. Chapter 11 duplicates chapter 10 to some extent, but looks in particular at the developments in practice relating to the non-numeric standard. As I have said, we will cover these in evidence but later. My plan is to begin with evidence that relates to the identification of marks, in particular Y7 and QI2. That is the subject of chapter 12 of the analysis and chapter 12 of the analysis is on the website and, therefore, publicly accessible. I will not go into the detail of an opening page 2 statement similar to before. Suffice it to say that what has been done since we were last in this hall is that a number of fingerprint examiners have been asked to participate in an exercise relating to Y7, QI2 and XF to enable you to reach your own view about the correct identification of these marks. They have done so by reference to a set of images that the Inquiry team has prepared and has issued so all of the experts have accordingly been addressing the same images. In the analysis there is a table which I think will benefit a bit of an explanation. Because the exercise started with asking eight people at the same time to do a similar exercise, what has happened inevitably is that they have used different numberings for substantially the same areas. The table that we have, table 3, which is part of the analysis that has been issued and table 4 is a corresponding one for QI2, table 3 looks at Y7. The principal charting for the Scottish Criminal Record Office staff is in the boxes along the top row and they have identified in relation to Y7 17 points of similarity. Four other experts were asked to do their own independent chartings without reference to each other and, indeed, without reference to the Scottish Criminal Record Office charting. They will be led in evidence: page 3 Mr Grigg, Mr Zeelenberg, Mr Wertheim and Mr McLeod. You will see under the tables that those four experts have, for many of the points relied on by Scottish Criminal Record Office, in effect agreed that these are features in the mark that require to be discussed, albeit that these numbers indicate that the four contradicters, as I call them, refer to those features as points of difference, not similarities. So if I give you an example, going along the column to the number 4 at the top in the box, Scottish Criminal Record Office has a point charted on the marks as feature number 4 which they say is common to the mark Y7 and Ms McKie's fingerprint. Mr Grigg, who contradicts the identification of Y7 as Ms McKie's mark has himself pointed to that same feature. On his charting it is number 7 and he said it is a point of difference. Mr Wertheim refers to it in area 2 in his charting as a point of difference. Mr Zeelenberg has it as point number 4. What I propose to do, as you will appreciate, sir, from this sea of numbers, is that we might lose the direct comparability of the evidence if I adopted each individual's numbering system. So what I, in fact, propose to do is, for the most part, refer to features by their original SCRO numbers, albeit when examining page 4 witnesses I will tell them that we are talking about, for example, with Mr Wertheim when we come to feature SCRO number 4, I will tell Mr Wertheim that he knows this area as area number 2. It will require a bit of patience with witness because it will perhaps be disorientating for them. I trust that this will enable us all to in fact achieve an end result which is directly comparable and, as I say, without going into the detail there is exactly the same charting for QI2. THE CHAIRMAN: So the table is really a key? MR MOYNIHAN: Yes, sir. THE CHAIRMAN: To cross-reference from the report. MR MOYNIHAN: To cross-reference the charts and again I have not done an exhaustive list, but what will emerge from Mr Wertheim's evidence -- he is the first witness to give evidence -- is in relation to Y7, of his 12 points in his charts, numbered 1 to 12, all bar two coincide with SCRO points on their chart, albeit differently numbered. So if we follow this system, we will use the SCRO numbering to negotiate through both their chart and Mr Wertheim's to compare both side-by-side and then we will leave two points to the end. Those two points are numbers 8 and 9. Number 8 does not merit particular discussion. Point number 9 does. Point number 9 is a page 5 point in the upper half of Y7. It does not feature in the SCRO charting because their charting relates to the lower half of Y7. Point number 9, I am afraid, for a reason which I will explain, I will refer to as the Rosetta characteristic so it will not have a number, it will have a name and the Rosetta characteristic is a name that, as I understand it, was attached to this characteristic by a Mr Berry of whom I have no evidence. It was a characteristic that had been referred to by a number of individuals as a point of difference and others who identified mark Y7 as Miss McKie had said that this point was, in fact, to be found on Ms McKie's fingerprint albeit at a different location. Mr Berry coined the phrase the Rosetta characteristic, one assumes, because like the Rosetta stone he regards it as the key feature that facilities proper interpretation of the mark Y7 and the Rosetta characteristic will be one point where we move beyond the SCRO charting, that is to say beyond the lower part of mark Y7 and where we get into a topic we have already touched on with Mr Kent, which is the possibility that the mark Y7 is the product of more than one touch. So that is the Rosetta characteristic. What we will find, sir, and others in the hall will find, is we will be largely repetitive because we will page 6 be looking at the same characteristics with, in total, potentially 16 fingerprint examiners. Whether we go through all the characteristics with each of these witnesses is something that only time will tell and something which you will require to give direction. The arrangement is that we will start with two contradicters, in other words two individuals who individuals who dispute the marks Y7 and QI2. Those are Mr Wertheim and Mr Grigg. After them, we will then turn to some people who identified the marks from SCRO, that is Mr Mackenzie and Mr Dunbar next week and I trust Mr Swan and Mr Leadbetter also, though I know Mr Russell is not here in the hall today and I do not know why he is absent. After we have gone round once, we will then go round, again beginning with contradicters, that is Mr Zeelenberg and Mr McLeod, and ending up with the four principal SCRO officers. One of the reasons for doing it in that way twice is that I recognise using the technology and with this arrangement of complication about the numberings there will be an element of trial and error. To those who are called up first -- Mr Wertheim is here today -- I do apologise. We will undoubtedly have some glitches in trying to work through these points but we will have a page 7 second bite at it with later witnesses. Sir, I do not really propose to say very much more about these matters because they will be covered in evidence but that is the plan. I should indicate that we are going to attempt to use digital images on the computer systems of the various marks. I am preparing some folders so that those in the hall who are following this can have paper copies to mark up if they wish. Those are to be made available. Also, because I am conscious that anyone could say that the digital images are of inferior quality, I have on the table in front of me an array of originals, photographic originals, so anyone who questions the accuracy of the digital image on the computer can always cross-check the original, though unfortunately, plainly, with them being originals we have only one copy so it may be difficult for others in the hall to follow that evidence but we can display them using the overhead projector. With that I am proposing to start Mr Wertheim. I should make it clear that Mr Wertheim is only available today and tomorrow. That is not due to any difficulty with Mr Wertheim; that was due to my own original estimate of how long his evidence might take; so I take responsibility for that. We have arranged a flight back page 8 to the United States for him on Thursday morning so his time is at a premium and others in relation to cross-examination will require to take that into account. I should also say for the record, sir, that I have had meetings with Digby Brown and, in particular, with Mr Wertheim himself to try to facilitate the examination. I have also met with Turcan Connell and Mr Mackenzie and know Mr Mackenzie's presentation, again with a view to facilitating my examination of each of these witnesses. I am grateful to all concerned for the time they have given me. Unfortunately, I have not had a meeting with Towells, that is Mr Russell, Mr Swan and Mr Leadbetter. So I am in the dark in relation to some of the precise points that they might be other than I do have witness statements from them, I do have their chartings and they are available. So I will do the best I can to represent their points but unfortunately I may not achieve it as well as I might with the others. With that introduction, sir, that would be the opportunity to start Mr Wertheim. We are turning to chapters 10 and 11. We are yet to work out the precise sequence of witnesses in this first chapter. There is a possibility that I have been discussing with Digby Brown page 9 and with Turcan Connell that I may interpose some factual witnesses before I come to the principal four Scottish Criminal Record Office witnesses so when they give their evidence they will give their evidence both on opinion and fact on one occasion uninterrupted. That is a matter of detail we require to work out. The final point I mention in relation to chapters 10 and 11 is that those will be put on the website just shortly before we get to that passage of the evidence. I cannot indicate just now exactly when that will be but my learned friend, Miss Carmichael, will be dealing with those chapters in due course so any individual who wishes to raise chapter 10 and 11 matters should do so with her in the first instance. Sir, beyond that, I think that that is all I actually need to say for the moment. PAT ALEXANDER WERTHEIM (sworn) THE CHAIRMAN: Perhaps for the record you could just have your full names so that we have them duly recorded. A. My name is Pat Alexander Wertheim. Examined by MR MOYNIHAN Q. Good morning Mr Wertheim. A. Good morning. Q. I understand I think you have come from Texas to give evidence; is that correct? page 10 A. From Arizona. Currently living and working in Arizona. Q. Under the flight path of some bombers, I think? A. Yes. Q. With any luck it is quieter here. We do have car horns that go off from time to time but there is no need for alarm. What I want to do before I get into the specifics of the images is to start with some general questions in relation to fingerprint practice. I am now being told something I have to tell other witnesses about and that is I am not close enough to the microphone. You will see in front of you there is a microphone. You will see that there is a button. If you switch the button on just press the button and a red light will come on. It may be on anyway. If you speak into that -- THE CHAIRMAN: I think it is on. MR MOYNIHAN: What I find is if you can hear an echo, then you are being picked up by the microphone. What I want to do is begin with some general scene-setting questions about fingerprint practice and fingerprint evidence and then we will come specifically to Y7, QI2 and XF. First of all, what I would like to ask you about is one of the broadest of questions, in the ultimate page 11 analysis when a fingerprint examiner reaches a conclusion on identity of a mark, is that a question of absolute fact or a question of opinion? A. It's generally accepted that it is the opinion of the examiner regarding the identification of the fingerprint. However, an expert cautiously following accepted methodology will reach a reliable conclusion and, therefore, the use of the term "opinion" is as much a legal term for court purposes as anything else. The only way you could apply the term "fact" to the identification of a fingerprint is if you actually observe it being left by a person. Then you know for a fact that it's that person's fingerprint. But the use of the term "opinion" in no way implies unreliability or a 50/50 chance that the opinion is correct. Q. What I will do, as I progress through this, is I will come ultimately to look at the factors that are in the system that give the reliability that you are referring to. Before I come to that ultimately, if I begin just by building up, do you accept that there is an element of subjectivity in the assessment of marks by a fingerprint examiner? A. I do. The use of the word "subjectivity" refers to a decision in the human mind. The process that is page 12 followed during the comparison of fingerprints is an objective process but ultimately the decision or the conclusion is subjective. Again, a trained, experienced examiner cautiously following the correct methodology is reliable and can reach accurate conclusions. The term "subjectivity" does not imply unreliability. Q. See if you accept this particular proposition. As I will come to ultimately, we will look at the ACE-V methodology which is, as I understand it, the structure that gives the process reliability. Would that be fair? A. Could you repeat that, please, sir? Q. We will come ultimately to look at the ACE-V methodology. I understand it is following that methodology correctly that you would say gives the process its reliability? A. That's correct. Q. What I want to do is to look at the skeleton around which that methodology fits; in other words, why is there the need to follow a precise methodology correctly and it derives, as I would suggest, from the fact the system is adherently subjective with opinion as the ultimate test. A. All right. Q. In looking at subjectivity, progressing down, first of all, as you say, if one had a finger in front of one, page 13 one could look at the pattern and work out what on the actual finger are the unique features in that finger and provided it is held in the air with no question of pressure or movement one would seen an undisturbed picture of the finger. That is the start. A. All right. Q. But, in fact, a fingerprint examiner working on a crime mark does not start there. He does not have the finger held in suspense with no pressure? A. That's correct. Q. What he has are literally two impressions of the finger: one from the crime scene and one from a ten-print form? A. That's correct. Q. Each of the two impressions may be partial; in other words, may be incomplete? A. They may be. Q. Each of the two impressions may deviate from the undisturbed finger for a variety of reasons? A. That's correct too. Q. So each may deviate due to different pressure applied in the deposit? A. Yes. Q. Movement in the deposit? A. Yes. Q. The surface on which the deposit occurs? page 14 A. Yes, sir. Q. And indeed the physical state of the individual at the time, for example, if he is sweating or his fingers are greasy? A. That's correct. Q. What you are trying to do is compare two impressions, each of which, due to a complex combination of variables, deviates from the undisturbed natural finger in quite a complex way? A. That's correct. Q. If I add on top, when it comes ultimately to a fingerprint examiner, you are looking at and studying impressions that may have been developed with different chemicals -- A. Yes, sir. Q. -- that may in fact react differently with different deposits? A. Yes. Q. You are looking at images of those developed impressions and depending on how the image is taken and how good the light is or how bad the light is, how good the camera is, how bad the camera is, the images may also vary from the natural state? A. That's correct too. Q. Even if we have officers working from the same images, page 15 we also then bring in the personal dimension that individual officers' visual abilities differ; one individual may observe a characteristic that another individual does not? A. That's correct. Q. Even in relation to the same observed characteristic, different individuals may interpret that in slightly different ways? A. They might. Q. If I have gone through, therefore -- in fact, in my list in front of me I have gone through six areas that are factors in this subjectivity: number 1 was we are only dealing with impressions of the finger, not the actual finger itself; number 2, each impression may vary due to a number of locational factors such as pressure, the movement, the personal characteristics of the individual? A. Yes. We could call those distortion factors. Q. Number 3 is that each impression may in the analysis ultimately vary because they have been developed by different chemical processes that may, in fact, react in slightly different ways with a mark? A. That's right. Q. Number 4, we have the photographic potential for distortion; in other words, the images may vary page 16 depending on the photographic technique applied to each. Number 5 is that inevitably to some extent an individual's visual observational abilities may vary? A. That's correct. Q. 6 is the ultimate question of interpretation. Each observed characteristic may, to a greater or lesser extent, be open to differences of interpretation? A. That's true also. I might add that, in spite of all of those factors, a fingerprint left by person A cannot be interpreted as having been made by person B. Different examiners with different training and experience, different visual acuity may make slight interpretation of differences in the print but it's not acceptable for an examiner to see a print as having been made by a different person than the one who actually left it. There are only two possibilities with any fingerprint. You can say that that fingerprint was left by person A or you can say that that fingerprint was not left by person A and had to have been left by some other person. One of those must be true and the other one must be false. In the interpretation, that is the conclusion or the opinion of the expert, there are three possible conclusions: one, it was made by person A; number two, it was not made by person A but must have been made by page 17 some other person; or, number 3, the distortional factors are so great that I cannot reach a firm conclusion and, therefore, my opinion is inconclusive. Those are the only three choices that are acceptable. Q. I do not in any way in these opening questions try to demean the discipline of fingerprint examination. What I am trying to say is what the sophistication is around which the methodology is built and, in fact, if one started from the very simple position that my right index finger is unique and any time I deposit my right fingerprint on a location I will get an identical impression of my right finger, identical impression, that would be questionable due to the six points that I mentioned? A. That's correct. Q. Each time I deposit my right index finger, it may vary subtly and the question is whether those subtle variations are capable of explanation back to being my fingerprint or might lead someone to confuse it either by confusing my fingerprint with somebody else's or by being unable to identify that fingerprint as mine because it has become so distorted by this combination of variables? A. Yes, sir. I would modify your statement slightly by saying that a competent expert correctly following the page 18 comparison methodology would not confuse your fingerprint with someone else's fingerprint. The examiner would either correctly identify the fingerprint as yours or would be unable to reach a conclusion because the distortion in the fingerprint was too great. If the examiner makes an incorrect conclusion, that's another whole set of problems. In the United States that's generally cause for removal from case work as having shown the examiner to be unreliable. Q. We will come to that ultimately in this particular case. At the moment we are just setting the scene. If I take this on -- and I appreciate that people in the hall listening to this may not know how a fingerprint examiner actually carries out his task -- but if I begin in the most elementary way, if I understand it correctly, looking at the patterns in a fingerprint you would start by looking to level 1 detail which is the overall pattern. Would you wish to explain to us what level 1 detail is? A. Yes. Sir, there are three levels of detail we refer to. Level 1 is the overall pattern. It is the tendency of the ridges to flow in concert with each other. It is generally the first impression the examiner gets at the first glance at a fingerprint. Oh, that's a whorl page 19 pattern or that's a loop pattern. The Level 2 detail are the individual points, the ridge endings and the bifurcations and the occasional dot between ridges. Level 2 is the second level of detail the examiner notices. After the examiner sees the pattern the examiner begins to pick out the points even without aid of magnification. Points are also defined by the fact that the adjacent ridges have to move aside to accommodate the point. For example, where one ridge comes to an ending the adjacent ridges have to split to go around that point. Level 3 detail, on the other hand, is generally confined within a single ridge or within the space between ridges. It's generally not visible without magnification and the Level 3 detail is not reflected in adjacent ridges. For example, a small Level 3 dot between two ridges does not force the adjacent ridges to separate. The adjacent ridges flow uninterrupted past that point. If the adjacent ridges spread and then come back together, then the dot between the ridges is considered Level 2. The designation as level 1, Level 2, Level 3 is a general reference to the physical size of the feature. THE CHAIRMAN: What is Level 3? What is it that one is page 20 looking for? Is it a pore, the mark of a pore? A. Yes, sir. Level 3 detail may be a sweat pore that reproduces in the image. Level 3 detail may be a bump on the ridge. The use of the sweat pores was defined in I believe 1912 by Edmond Locard. The use of a bump on a ridge was defined in 1962 by Salil Chatterjee in India. In addition, in some people there appears what we call incipient ridges, tiny hair-line ridges between the main ridges. The primary difference is that the incipient ridges do not have sweat pores. Occasionally they might but it's rare. The incipient ridges are ridges that appear almost microscopically and those would also be Level 3; so primarily the sweat pores, bumps or deviations in the shape of the ridge. A ridge is not a smooth line, and then the incipient ridges that will appear between two main ridges. Those are the three general types of Level 3 information. MR MOYNIHAN: We will spend much of today talking about Level 2 detail in relation to Y7 and QI2. Is that fair? A. Yes, sir. Q. The Level 2 detail, two variables we tend to look for to see if there is a combination matching in the crime scene mark and the suspect or known individual is a ridge ending is the first one and a bifurcation. page 21 Is that correct? A. Yes, those are the most common Level 2 features. Q. A ridge ending is simply where a long line within the fingerprint, a ridge, comes to an abrupt end without deviation to either side. It just simply comes to an end? A. That's correct. Q. A bifurcation is where a ridge splits naturally into a Y-shape, for example, splits and nonetheless carries on? A. That's correct. I might add, sir, that occasionally a feature can be either a ridge ending or a bifurcation depending upon the amount of pressure, on the amount of sweat or other residue on a finger, on pressure distortion, sideways pressure, or on factors in the substrate of the surface. In other words, a bifurcation in a very light touch on a smooth surface with minimal residue may appear as a ridge ending in one impression but with more sweat on the finger and heavier pressure, that ridge ending may appear to connect with an adjacent ridge and may appear as a bifurcation in a second impression from the same finger. Frequently, a new person in fingerprints will have trouble grasping that difference where a senior examiner will see the point as a point without specific regard to whether it is a ridge ending or bifurcation because his page 22 training and experience has taught him that it can appear either way, depending on pressure and the sweat that's present on the hand. Q. I have two examples to ask you about in relation to this. If we can bring up, first of all, two impressions of Ms McKie's fingerprint, FI2109.01 and a rolled impression FI2109.02. With any luck, I will be able to operate the equipment. What I am looking at is, for me, it is SCRO feature number 4 and I think for you it was your area 2. It is the two stepped bifurcations. In the plain, if I understand correctly -- I will mark it -- we are looking at the area which I am just about to highlight. Is that correct? A. Yes, sir. Q. In the rolled, if I understand it correctly, I am looking at the area marked with red? A. Yes. That's a perfect example of what I was just talking about. In the impression on the left it appears to be a bifurcation. In the impression on the right, it appears clearly as a ridge ending, a slight difference in pressure or, in this case, the amount of ink that was on the finger caused a slight difference in the appearance of the point and nonetheless you are correct. It is the same point. page 23 Q. This is a great example of something else, which is beginner's luck. We will capture that image before we lose it. I do want to actually just concentrate on this because if I tell you that these are fingerprints both of Ms McKie, one taken as a plain impression and by that I understand her finger is simply pressed straight down with ink on it on a piece of paper, perhaps with a bit of pressure applied, with the absence of movement to either side. The other, the one on the right, is a rolled impression, if I understand it correctly, when that is done the finger is rocked to the side or moved to the side to get a more complete picture of the full surface of the skin. Is that correct? A. That's correct, sir. Q. As we have been talking about earlier on, about the fact impressions may vary due to a number of different circumstances, here we see something which, on first blush, needs explanation. It seems to be a bifurcation on the left image and a ridge ending on the right? A. Yes, sir, and that's what I was referring to a moment ago when I said that, especially to a beginner or a trainee or a lay person, it would appear to be a different feature and yet to a trained expert, an page 24 experienced expert who has seen thousands of occurrences of this, it ceases to appear as a difference. It's a point in the same relative position; therefore, it's accepted as the same. THE CHAIRMAN: But if you were looking at the left image in isolation, would you see that as a bifurcation or as a ridge ending. A. I would see that as a bifurcation, sir. MR MOYNIHAN: I have also forgotten something that is a discipline I should fall into. So we retain images like this in their natural location in the transcript we are going to give individual images such as this a number and Faryma will shout out and since I have forgotten on this occasion she should shout out anyway the number so it can be put in the transcript. MISS BAHRAMI: Image FI2109.01 is saved as FI2209.02. The image is saved as FI2209.02 and the original image was FI2109.01. MR MOYNIHAN: So what were originally FI21 are now FI22? MISS BAHRAMI: Yes. The one that was 01 is now 02. MR MOYNIHAN: Again, an exercise in trial and error. So if we simply go back, the same image I have then on the left-hand side which on the screen is FI2109.01 will now have on Trial Director what reference? MISS BAHRAMI: The one that was 01 will have FI2209.02. page 25 MR MOYNIHAN: And on the right-hand side the image is FI2109.02 and that will become? MISS BAHRAMI: That is now FI2209.01. MR MOYNIHAN: What we will do is sort it out a bit later rather than put you under pressure because, having marked them, I don't want to lose them. Can I just ask you this: you would regard this feature as a bifurcation; is that correct? A. If I look at it in the plain impression on the left and I were asked, based on that image alone, I would say that is a bifurcation. If I were presented the image on the right and shown that one alone I would say it's a ridge ending. In making a comparison between two prints, one would not rely on one point alone and, therefore, whether it's a ridge ending or a bifurcation is less important during the comparison than the fact that it is in the same overall relationship with a group of other points. Q. Can I ask you, since I said earlier on, these are just impressions, we do not have Ms McKie's finger here to hold up and say which is the correct feature, is there any way that you could tell which of the two is the correct anatomical feature or could it be either of these two is the correct anatomical feature? A. It could be either. In the skin itself, sir, the ridges page 26 generally have a more or less consistent height. If we were looking at a cross-section of skin, the ridges would have a consistent height and the furrows between the ridges would be at some distance below them. The issue of whether it is a ridge ending or a bifurcation can be confused by the fact that when a ridge comes to an end it does not fall off sharply, it tapers downward and, therefore, it may taper downward in the direction of a ridge on one side or it may taper downwards straight down the middle of the furrow. If it tapers downward a little bit to one side then it has a tendency toward a bifurcation but with light pressure it might appear as a ridge ending. It is more important to consider the fact that there is a feature in that exact location on the fingertip and a reproducible feature in every impression that's left behind, even though sometimes it will be a bifurcation and sometimes it will be a ridge ending. Q. The next images that I want to bring up should be just one image, FI2109.03. Here I have two images side-by-side with the work of highlighting done in advance. The colours perhaps are not quite so clear on this one. The lower coloured circle to the right is green, then to the left in the middle is obviously red, and the one at the top is page 27 intended to be yellow. You will see that what has been highlighted here are different combinations of bifurcations and ridge endings. Just looking at the green circles, what is your comment about these characteristics? A. I believe this appears to be a good example of what I was just talking about. The print on the left just before the ridge coming up from the bottom right joins the other ridge and it narrows to just a very hairline connection; whereas in the print on the right it is a clear bifurcation, a clear even bifurcation. I believe this would result from what I mentioned earlier, that the point in question does not maintain the same even height as a ridge at the connection point, at the junction, but may lower slightly so that very light pressure leaves the appearance of a ridge ending and in the fingerprint on the right, the heavier pressure forced the skin down so that it made a complete joining with that adjacent ridge. I believe that would be the explanation -- or it may have been a heavier sweat -- Q. I think we may have got right and left confused. Are you saying that it is the left one that has the heavier -- A. No, the left one is the light touch or with a light page 28 amount of residue or sweat. The right impression is the heavy touch, with possibly more sweat on it thus causing the ridge ending on the right to join completely with the adjacent ridge and appear to be a bifurcation. Q. It may be just simply I am looking at something slightly different -- A. May I demonstrate with arrows then, sir? Q. Yes, please. What I am asking you to look at, without making it, the green areas I am indicating just now are you talking about the yellow, in fact? A. No, sir. May I use the arrow? Q. Yes, please. (Indicated) At that point where the ridge is very narrow on the impression on the left, on the right we see no such narrowing of the ridge. That's what I'm talking about, the one on the left, if it had slightly lighter impression than was present in that it may appear to be a complete clean ending ridge but the heavier pressure with the impression on the right you don't see any of the narrowing of the ridge or the disconnectivity in that position on the right. As I've said, though -- Q. Mr Wertheim, it is obviously me. The feature on the right -- and by "the feature on the right" I am referring to not exactly where your arrow finishes but page 29 the intermediate ridge, the middle ridge, in that green circle -- is it your opinion that that is a bifurcation or is that a ridge ending? A. Oh, okay. In the image on the right, the ridges are white and the furrows are black. Now I understand the misunderstanding. The image on the right has a colour reversal. The ridges are white and the furrows are black. That appears to be perhaps a fingerprint that was developed with superglue fuming which makes the ridges turn white. Q. In which case what are we looking at as the characteristic in the green circle? A. On the right we're looking at a bifurcation. Q. On the left looking at a bifurcation also? A. On the left we're looking at a bifurcation. On the right the ridges are white. One of the clues to the fact that the ridges are white is that you have the black dots in those ridges. For example, this little black dot right there (indicated) is a sweat poor and the sweat pores occur in the ridges and it would coincide with, I believe, this sweat pore on the other fingerprint (indicated). Sorry, in the fingerprint on the left the ridges are black and the background is white in the fingerprint on the right the ridges white and the background is black. page 30 Q. In the red circle, comparing the red in each of the two images, are you seeing a bifurcation in both or a ridge ending in one and a bifurcation in the other? A. That's a clear bifurcation in both because in the one on the right the ridges are white and it's a white bifurcation. Q. Therefore, for completeness, the yellow, is that a ridge ending or a bifurcation? A. That's a clear ridge ending in both. I believe, Mr Moynihan, this may be one of those little glitches you were talking about earlier. Q. That is fine. What I was trying to do was looking at two images to see or to discern what extent one has to adjust for different images because if I tell you from a report I do indeed understand these to be from the same finger and, as you have explained to us, developed by different chemical techniques? A. Yes, sir. Yes, indeed. Q. Therefore, to the untrained eye they look quite different but to the trained eye are similar? A. And this is probably a perfect example of that concept, Mr Moynihan, because to the lay person you will see a series of black and white lines. To a trained fingerprint expert I would see ridges and furrows without reference to the black and white. page 31 Q. What we will do is capture that image, the one that has the arrows on it just now. MISS BAHRAMI: The name for this in Trial Director will be FI2209.03. MR MOYNIHAN: Again, remaining on the same topic, in relation to your evidence on a previous occasion you have referred to something called tolerances. A. Repeat that, please? Q. In relation to your evidence on previous occasions you referred to something called tolerances, a concept called tolerances. In other words, what we have been covering so far is that features from, let us assume, the same fingerprint can, because of the various distortion sources, appear to be different when in fact they are the same? A. That's correct. Q. But if one factors in what the fingerprint examiner is normally dealing with, namely he does not know when he begins that the two fingerprints are the same. He is simply trying to reach a conclusion whether or not they are the same. You are looking at two things, two features, that may have variances and you are trying to decide are they the same or not. Do I understand you to say there will be some variances that fall within a degree of tolerance that page 32 you will say those are different but, in fact, in reality the same? A. Yes, if they are within tolerance then I can consider them as the same. If they were out of tolerance, then I would say there were differences. Q. So far as the concept of tolerance, is there any measurable standard of tolerance or is that a subjective, personal judgment. That's subjective based on training and experience. I believe it would be reasonable to say that there is no such thing is an undistorted impression. The surface of your fingertip or indeed virtually any area of skin is not flat. The surface of your fingertip is a spheroid but when you touch a flat surface you leave a flat impression, therefore, there must necessarily be some distortion. Think of taking a football, or what we would call a soccer ball in the US, that's round and you press it hard against a flat surface. It will leave an impression but that impression will be a two-dimensional representation of a three-dimensional surface. Likewise, every fingerprint impression is a two-dimensional representation of a three-dimensional surface. Therefore, there must necessarily be distortion. In some cases the distortion is minimal. page 33 In other cases the distortion is extreme and it is the examiner's subjective opinion or conclusion based on his training and experience whether two points, one in a relatively undistorted impression and one in an extremely distorted impression, if those two points are within tolerance based on his training and experience and based on all of the distortional factors that we have discussed. Q. Moving that same point on, we will come back when we look at Y7 and QI2 to look at the 16-point standard that obtained down to 2006 in Scotland. Could I just begin in a non-numeric way without reference to a minimum number. Do I understand there is now no set minimum number of characteristics in common that is required for a fingerprint identification? A. That's correct. Q. Would I also be correct in understanding that there is ultimately no objective standard to determine whether a crime scene mark can be matched uniquely to a suspect, for example? A. That would be arguable. The standard defined by David Ashbaugh of the RCMP was that an expert can individualise or identify two fingerprints as being made by the same person. When the expert finds ridge formation in sequence having sufficient uniqueness to page 34 individualise so that would be the standard espoused by David Ashbaugh and that's the generally accepted standard, I believe, now in the world. Ridge formations at level 1, 2 and 3 in sequence (that is to say, the same sequence in both of the two impressions) to a standard sufficient for the examiner based on training and experience, visual acuity and all of the other things that Mr Moynihan mentioned earlier, to reach a conclusion of either identification or exclusion and if he is unable to reach a conclusion, then he has that middle ground that's inconclusive. But that would be the standard that's applied. Q. By "objective" what I mean is your definition ultimately, I suggest to you, begs the question what is sufficient for uniqueness, and there is no objective standard for sufficiency in that context? A. No. The definition of sufficiency relies on the subjective conclusion in the examiner's mind. You are correct. Q. Can you tell me whether there is -- unfortunately a pun here -- a rule of thumb, and I appreciate you do not count numbers, as to the lowest number of points in sequence that you would be satisfied with in order to make a unique identification? A. No. There was a fingerprint published in the Journal of page 35 Forensic Identification in, I believe, 2002 that actually had zero traditional points, zero ridge endings or bifurcations. It was what we would refer to as an open field; in other words, it was a series of parallel ridges flowing without any ridge endings or bifurcations and yet it was so crystal clear in all of the Level 3 detail that every bump on the ridge, every little tiny incipient ridge between the main ridges, and the shapes of the incipients matched so perfectly with the inked fingerprint that the original examiner formed the opinion of conclusion even in the absence of any traditional points strictly at level 1 and Level 3. So that would be a zero point identification. When I looked at that in the magazine, in the journal, and studied it, I agreed with the identification. I've never seen such a print in my own casework. Some experts still individually or personally rely on their own personal set minimum number. I've never felt like I was comfortable with any minimum number and my response generally is show me a specific print with a specific number and then I can tell you whether I've got enough to identify it or not, but I can't say in general that I would require 16 points or 12 points or 10 points or 7 points because it is so dependent upon the prints that you're looking at. page 36 Q. Do you accept that though some research has been done there is, in fact, as yet no scientific evidence of the statistical incidence of particular combinations of characteristics in the population? A. That's not entirely true. There is research being done, even here at the FSS in Britain, regarding the number of points to reach a statistical threshold to support the identification. Cedric Neumann and Paul Chamberlain at the FSS are working on a computer model. It's not published, therefore, it's not been validated or being used anywhere. Likewise, Christophe Champod at the University of Lausanne is working on another computer model separately from Cedric Neumann and Paul Chamberlain. So research is being done and those models do exist. They have not been published or validated yet at this point. Q. I appreciate that you will say to me that any fingerprint examiner -- do not take this personally -- requires to carry out holistic examination of the mark, look at the whole mark to begin with. Is that correct? A. In general I will say yes. However, I will amend that to say that, for example, an entire palm-print might have as many as 1,500 points in it and so if I've got an entire palm-print at a scene of crime and an entire inked palm-print I am not going to count to 1,500 before page 37 I form a conclusion. Generally, I would say that with a crime scene mark, however, you wouldn't pay attention to only small area and ignore the rest. Your use of the word "holistic" I believe you are referring to looking at the entire print not just part of it and I would agree with that statement. Q. Though, as you say, there is no minimum number, in explaining an identification in court an examiner is bound to say, "I found a certain number of features in sequence and agreement between the known and the unknown prints"; yes? A. Yes. Q. It does not matter which number one puts for that certain number. Let me just say for sake of argument he might say, "I found 10 points in sequence and agreement". If I understand the way evidence would then proceed is the examiner would say it has not been known for two different individuals to share those 10 points in sequence and agreement. Would that be the way that the evidence would be summarised? A. That would be correct. However, I would modify what you said slightly. I believe, Mr Moynihan, you were using the term "feature" and "point" to mean the same thing and if I refer to a "point" I'm referring to a ridge page 38 ending or a bifurcation. I would not use the word "point" to describe an incipient ridge or a sweat pore but an incipient ridge and a sweat pore are still features, therefore, the two terms aren't necessarily interchangeable. Q. I will use your terminology then to make my example simple. An examiner would be talking of 10 points, that is 10 Level 2 details, in sequence and agreement and he would be giving evidence that he has not himself experience of two different individuals sharing those same 10 points in sequence and agreement. That would be the way the evidence would be explained to the jury or for the judge? A. That would be one way, yes, sir. Q. What is the empirical basis for that conclusion if there is no statistical work yet published? Research is being done but no statistical work yet published as to the incidence of particular points in the population. A. Well, there has been statistical work published regarding the number of points. The first was Sir Francis Galton's book fingerprints in 1892 and Francis Galton used a very flawed statistical model to arrive at the number 12. Edmond Locard refined Galton's statistical model and I believe published in 1912 or 1914 in which Locard said page 39 that 12 or more points in sequence proved beyond a doubt that the identification was correct. Locard modified that -- Locard's rule is referred to as the tripartite rule. The first part was 12 or more points is an absolute identification, 8 to 12 points may be an identification based on other features. Remember earlier I said Locard was the man who defined poroscopy, the use of sweat pores. So Locard was saying that if you've got 8 to 12 points and other features to support the identification it can be absolute. The third part of Locard's tripartite rule was that with fewer than 8 points, then one has to assess a probability in relation to the general population or something. In general, in the fingerprint profession we have ignored the third part of that rule and we refuse to assess probability. If Newman is successful in his computer model or Champod in Lausanne, then maybe we can come up with a probability model such as they use in DNA but at this point we don't do that. To get back to your question, Mr Moynihan, there have been a number of other refinements on those statistical models, but invariably the problem is that the variation in features that we look at is infinite. A ridge ending can reproduce not just as a straight page 40 ridge ending but as maybe a little kink at the end of the ridge, with a bulb at the end of the ending ridge or maybe the ridge will taper slightly. Different ridge endings can have different appearances. What that means to the expert is, based on clarity, that one feature alone may have more or less weight and no statistical model to date has been able to take into account anything except the fact that there's an ending ridge there. So the statistical models are inherently flawed because they can only consider a finite number of factors; whereas the expert views an infinite number of factors and some of those factors don't figure into the statistical model. Each refinement of the statistical model brings us a little bit closer to an accurate probabilistic model, if you would, something approaching DNA, but we're not there yet. Still, there have been statistical models dating back to 1892 but they have all been flawed. Q. I am grateful to you because this reaches a conclusion before we move on to the next topic. We have heard from other witnesses, if I put it in this extreme way, fingerprint examiners tend to think of only two extreme ends of the scale or spectrum: zero, which is they are not going to give any evidence as to similarity or page 41 identity and the other end, 100 per cent, they are 100 per cent certain of a unique identification. Is that a gross oversimplification or is that, as you would understand it, a worldwide approach of fingerprint examiners to think in terms of only no identification or 100 per cent certainty? A. I believe that's an accurate representation. It's either excluded, which would be what you mean as zero, or it's identified which would be 100 per cent and anything in the middle which would be deemed as uncertainty then is simply reported as inconclusive. We don't attach a probability to it. Q. Can I move on to a completely different but related subject. I want to ask you about something I refer to as a close non-match. What I mean by a "close non-match" is where there are images that, for sake of argument, we know come from two different individuals. So we introduce that as a test I approach. Because of the infinite variability you have mentioned, the images contain a confusing picture of what may seem superficially to be similar features which, on close analysis, are ultimately different. Is that a recognised phenomenon? A. Yes, sir, it is. Q. The particular case I have in mind that you will know page 42 about yourself is that of Brandon Mayfield? A. Yes, I'm familiar with the Mayfield case. Q. Correct me if I am wrong. I understand that the FBI looking originally at Brandon Mayfield found 10 points -- would that be correct -- that were common between Brandon Mayfield's fingerprint and the Madrid fingerprint? A. I don't know the number exactly. I've heard that the number of points entered into the AFIS (the fingerprint computer search system) was seven. So I don't know the exact number. Q. If we proceed for the moment that I am correct in suggesting 10, if I understand what happened in the case of Brandon Mayfield was the FBI concluded that the particular number -- I assume 10 -- was, in the way things are explained in evidence traditionally, there were the 10 points in sequence and agreement, Brandon Mayfield and the Madrid fingerprint such that there was a unique identity between Brandon Mayfield and a participant in the Madrid bombing? A. That's correct the FBI erroneously identified Brandon Mayfield. I might add because it occurs to me that I saw the fingerprint charts prepared by Ken Moses who was the defence expert working for Mr Mayfield's defence team and Mr Moses initially verified the FBI page 43 identification. In the charts that I saw prepared by Mr Moses I believe he had marked 16 points of agreement. The problem was that between those 16 points of agreement at least in the charts I saw Mr Moses mark, there were points of disagreement that he had ignored and had interpreted as factors of distortion. You have to appreciate that this fingerprint was on a crinkly grocery bag and had numerous lines and artefacts in the image due to the grocery bag and some of those apparently were erroneously interpreted as artefacts of the grocery bag when in fact they were actually differences in the fingerprint that should have been noticed by the original examiners. THE CHAIRMAN: There was another independent expert, was there not? A. That was Mr Moses. THE CHAIRMAN: I see. That was the independent expert who confirmed the FBI identification? A. Yes, sir. The three examiners at the FBI were Terry Green -- I believe Terry Green was the AFIS operator who originally identified the print -- and then it was verified by Massey (and I forget Massey's first name) and then the supervisor who reviewed the work was Michael Wieners. Those three at the FBI had vouched for the identification. Then the defence team hired Kenneth page 44 Moses and Mr Moses verified the identification. It was Mr Moses' chart that I first saw and I believe he had 16 points marked with little red dots in the chart, but it ignored what to me were obvious differences. THE CHAIRMAN: Just so that I get the sequence right, after the FBI had made the identification, my recollection is the Spanish authorities questioned it and, despite that, Mr Moses confirmed it? A. That's correct. MR MOYNIHAN: If I pick up where his Lordship left off, in fact, what happened was that the Spanish authorities became suspicious of an Algerian suspect and it was found, on close examination of the Algerian's fingerprint compared with Brandon Mayfield, they shared 10 points that had certain similarities which, on closer examination, were not in fact identical? A. That's correct. I might add that the FBI and the Spanish were working with slightly different images because it is my understanding that on that bag there were four simultaneous impressions as I'm demonstrating here (indicated) but the Spaniards only e-mailed one of those images to the FBI. If you had had Mr Mayfield's inked fingerprints, you would have noticed that the similar pattern on that one was not accompanied by similar patterns on the other. If you had had all four page 45 fingerprints, you would have looked at that and said, "Oh, it's obviously different because three of the fingerprints are completely out of agreement even at level 1". Q. The next topic I want to ask you about, before we turn to the ACE-V acronym, the methodology, is something that is quite important from my perspective. Plainly, a fingerprint examiner needs years of training to properly identify the patterns in any fingerprint and I do not underestimate the training at all. What I am interested in, though, is when that becomes a matter that is presented in court. I accept without question it requires a fingerprint examiner to identify the target area, to discern the points that are worth closer examination and to reach a conclusion about identity, but when it comes to giving evidence in court must that examiner be able to point to the particular features, the characteristics, and demonstrate them to the judge and the jury or is there an element of black magic, that there can be something in there consistent with a unique identification but only an expert will ever see it? A. Let me back up to the first premise of your statement and disagree respectfully that it may or may not take years of experience to become an expert. Fingerprint page 46 comparison is both an art and a science and there is a component of art. In my experience, teaching roughly 2,000 students, I've observed some have a natural, innate talent or ability that allows them to become very proficient in a very short time. They may not have the depth of understanding of the science but their visual talent at comparing two images is phenomenal. I've seen other people for whom the ability to develop fingerprints will never occur. For example, dyslexia is a condition that in some cases will prevent an individual from forming and comparing images correctly. Form blindness is another one. William Byford with the Greater Manchester Police did a study of form blindness as it relates to fingerprint comparison in the early 1990s and presented and published that information in 1995. Byford's study I felt like should have been adopted as a pre-employment screening device to weed out job applicants who lack the ability to deal with images in their mind because no matter how much training you give an individual like that, you will never be able to accurately and reliably perform fingerprint comparisons and reach conclusions. To the best of my knowledge, Byford's study was never widely accepted unfortunately. So you have some people who can very quickly become page 47 proficient at comparing and identify fingerprints and you have others for whom it's a great task and the majority are somewhere in the middle. Generally accepted a two- to three-year training programme will bring an expert to a satisfactory level of proficiency. Now I've forgotten the second part of your question ... Q. I will explain it to you. What I was asking you was I had accepted -- and you corrected me -- a proposition that requires training and experience to make the initial judgment but then when it comes to appearing in court before, in this context, a lay judge or a lay jury, does a fingerprint examiner have to be able to demonstrate his points in sequence and agreement to the lay observer or can there be points that an examiner relies on that he will just never be able to demonstrate to a jury? A. Okay, I see that as having two parts to that answer. Number 1: the best fingerprint expert in the entire world would be completely ineffective if he could not communicate in court. It is required to be a true expert that the examiner have communication skills that allow him to impart some knowledge and understanding to the court. Secondly, no amount of training and experience can page 48 prepare a person to see something that simply is not there. It's not a black box, although there is research being done now that they call "black box research", but the fact is that even the most untrained lay person should be able to see the features in the image. The thing that distinguishes the lay person from the expert is that the expert should know how to interpret those features. Therefore, if I come to court with a chart and I've got features marked on the chart and you cannot see anything there, then the fact is there's nothing there. There's nothing there to interpret. There has to be something to interpret. It's the interpretation that defines the expert. No amount of training and experience allows an expert to "see something" when there's nothing there to see in the first place. Q. What we will do very shortly is turn to Y7 and QI2 but what I wanted to just establish is whether one is looking at a similarity or a difference, one is neutral about this, looking at a similarity or a difference, the first point ultimately for his Lordship is does he see a point there and then, with the assistance of the expert, if he can see it, then the question will be one of interpretation, is it a similarity or is it a difference. But if he cannot see it, then the question page 49 of interpretation just does not open up. Would that be fair? A. That's correct. My expertise as an expert allows me to interpret what I see. My ability as a communicator allows me to help you see it. If I cannot prove to you that that point exists, then you cannot accept it. The same with a difference: if I can't prove to you that there is a difference there or dissimilarity, then you shouldn't accept it. I have the ability to interpret it based on my training and experience but I can't interpret something that's not there and if I can't explain it, then the court shouldn't accept it. Q. Just to pick up some evidence we had earlier just to put for your comment, we had evidence from a Mr Kent, who is retired now but a scientist at the Home Office with some experience in fingerprints, and I think he for me put the point this way: one had to start by looking at the clarity of the image, being satisfied that what one is looking at as a feature is truly a feature of the fingerprint rather than some artefact of the image. So one looks at the clarity of the image before one then goes on to the skilled question of the actual interpretation of that now observed feature as either a similarity or a difference. page 50 Would you accept that or -- A. Yes. And we're bridging into I believe your next topic is ACE-V, because to correctly compare fingerprints the expert should start with the unclear image, which is in most cases the crime scene mark, the smudge distorted print left and developed with less than ideal conditions. In starting with the unclear mark, without any reference to the inked fingerprints, the examiner during the analysis phase clarifies in his own mind that image, defines the points as he can interpret them from the crime scene mark without reference to the inked print. That is an important first step, to work with that crime scene mark and analyse it to find all of the points in the crime scene mark and all of the other features as they are there before one proceeds to look at inked prints and do the comparison. THE CHAIRMAN: That is an invariable rule. You must always start with that? A. I wouldn't say "invariable" but I would say general rule. Sometimes the crime scene mark is very clear and clean and the inked prints are smudged and then it's important to interpret the features in the inked print. The problem is if you form a mental image based on the clear impression, then your mind can trick you into seeing things incorrectly in the unclear impression. page 51 THE CHAIRMAN: That is one of the sort of defects of the human mind maybe. You do not do it intentionally but it just happens that you see something that you want to see, so to speak, in the other image. A. Yes. In David Ashbaugh's work on ridgeology, he publishes a number of drawings that what you see is determined by what you expected to see. For example, one of those drawings if he tells you ahead of time you are going to see Tweety Bird, then when you look at this drawing you see Tweety Bird. But if he tells you ahead of time that you are going to see a washer woman, when you look at the drawing you see a washer woman. That same mental flaw can affect an expert if the expert looks at the clear image first. One must analyse the unclear image, which is almost always the crime scene mark, without reference to the clear image in order to avoid that bias. THE CHAIRMAN: Thank you very much. We normally take a short break because we have one stenographer and it is better for everyone if we take a short break and we will start again at 11.50. (11.35 am) (A short break) (11.52 am) MR MOYNIHAN: Mr Wertheim, just by coincidence as I sat down page 52 you were saying you were finding it difficult to understand me in part because of the accent more because of the echo. A. The two work against each other for me. I hope my Texas accent isn't causing you problems with the echo. Q. The irony is I have been told people at the back of the hall can't here me unless there is a very good echo so we will have to reach some compromise. We will do our best. You are indeed correct what I wanted to do is to move on then to an understanding of the ACE-V methodology. We have covered the A in the analysis and told us that it is important to start with the crime scene mark, to analyse whatever features, to use that neutral term, you can see that you would then carry forward in your comparison with known prints. Is that correct? A. Yes. The analysis includes the level 1, the pattern or the ridge flow; Level 2, the points; and an analysis of the Level 3, in so much as it's visible. In a distorted print there may be no Level 3 visible. The analysis also consists of determining how the factors of distortion have affected that print, the pressure, the direction of touch, that twisting, the amount of excess residue and the surface interaction with the finger as page 53 it touched. That's all part of the analysis as well. During the analysis phase then, the expert forms some maybe inarticulable foundation for the tolerance that he is going to allow later on when he's doing the comparison. All of that should occur during the analysis phase. Q. What I wanted to ask you about is the next phase of this, to what extent is it permissible to take into account in reaching your ultimate conclusion a feature, again a generic term, a feature that you first observed in a known print which in your initial analysis stage you had not observed in the crime scene mark? A. That's not an uncommon occurrence. Frequently reference to the known clear impression will allow an examiner to see or interpret some of the things in the unknown or the latent print. So it's not uncommon that an examiner will pick 10 clear points in the unknown print and then with reference to the inked print be able to see two or three or four additional points in the latent print. The danger is in looking at the inked print first and forming that clear image before you go to the latent print. Q. When you reach an ultimate conclusion, do you attach the same weight to features which you have only been able to discern properly by looking at the known print before page 54 going back to the unknown, or do you treat them warily? A. My personal view is that the features you can only find in the latent with reference to the inked print first are not as reliable, therefore, I would not attach as much weight to a feature that I only noticed after the comparison had begun. More weight would go to the features that had been visible alone in the analysis phase. Q. I know, because I have seen, that when you carried out your examination of the marks in Ms McKie's case you yourself took notes where you actually recorded your workings and your thought processes and, indeed, one can see how your thinking changed over time. Is that your own habit or is that something that is taught with fingerprint examiners and expected of them in jurisdictions in America? A. A little of both. I'm in the habit of taking notes. In this particular case, when I -- and you're asking this in specific reference to my examination of Y7? Q. Sorry, perhaps if I could be more direct. I understand from witnesses we have asked about earlier on that in the Scottish Criminal Record Office back in the late '90s when Y7 and QI2 were being examined it was not the practice to take working notes and, indeed, even today it's not the practice to keep working notes. page 55 What I was wanting to understand is whether that is something that is common in the fingerprint world or is something peculiar in Scotland. A. When I started in the 1970s I was not taught to take notes. By the end of the 1980s notes were required in every case and it's an evolving situation in which the notes that are required today are more detailed and more specific than the notes that were required of me 10 years ago. I work in a laboratory that is accredited and part of the accreditation requires that I take notes in every single examination, not simply to refresh my own memory for court but notes sufficient for another qualified expert to review my notes and understand exactly what I did. In some simple cases, my notes may be very short or very concise because any other expert looking at it can instantly see what was done, but in complex cases I may take many, many pages of notes so that another examiner can follow the process that I went through and follow my thought processes exactly. THE CHAIRMAN: Is this in any case or is it when you are dealing with a suspect? What I have in mind is you may have a lot of eliminations to do in a crime scene and if you made detailed notes of all those eliminations that page 56 could be very time consuming. A. It is very time consuming but it is required of me. My notes will begin with the examination of the evidence, a visual examination before I process it. My notes will detail every process that I used to develop the latent fingerprints in sequence and the results of each step. Then my notes will go into an enumeration of every single fingerprint that I've developed. Each print will be numbered and listed separately in my notes and described and this is -- even if there is no suspect, all of that will appear in my original notes. That was not the case ten years ago in my laboratory but that is the case today. 10 years ago in my laboratory my notes would still have included a visual examination, what I could see, then it would include every development process I used and the results and then it would include a statement whether fingerprints of value for comparison had been developed and how many. MR MOYNIHAN: One can obviously understand that quality assurance processes build up to some extent with the bureaucracy. What is the practical purpose of keeping meticulous notes, in particular for your laboratory making this a requirement? A. In all honesty, I believe the purpose of it is exactly that to which you referred: the bureaucracy of it. I page 57 believe that a lot of requirements on note-taking today are as superfluous and unnecessary, but nonetheless I believe notes are critical in every case. If something were to happen to me and I'm unable to go to court next year to present my evidence, then in the absence of good notes another expert testifying in my stead would have no way of explaining to the court what I had done and what I had seen. As the original examiner, it's my opinion that would have resulted in the case developing as it had. The notes are critical. Q. Can I put to you something, just a thought for your comment. I have seen some literature that suggests that with a visual process that's dependent on an individual's mind some subconscious bias can come in, entirely innocent, some subconscious bias. One source of bias is called confirmatory bias, in other words, where an individual is already thinking in a particular way, he will tend to see more and poor points going in his direction. For comment, if I am identifying -- my view is it is an identity, I might over time see more and more similarities and equally if I am contradicting an identity I might see over time more and more differences. The point for comment is that one practical benefit of notes is that one can actually then audit and verify page 58 what the examiner initially did observe and it protects against that confirmatory bias. Is there any practical merit in that proposition? A. I believe that's an entirely valid proposition. Q. So far as the note-taking, just to finish off, to what extent is this now common practice in the jurisdictions in which you practice in the United States? A. In the United States, note-taking on every case is mandatory in accredited laboratories. There are still some small police departments that might have a fingerprint examiner working outside an accredited scientific laboratory environment but I believe even in the majority of those laboratories the examiners will take notes during an examination. It's not mandatory to take notes outside of the accredited laboratory but I believe it's still common practice. Q. I appreciate note-taking really covers the whole of the methodology but I thought I would start with it at the analysis stage. So far as the C of ACE, the comparison, are there any particular precautions built into that stage? A. Could you rephrase that, please? Q. We looked at analysis. What you told me was it was important to begin with the crime scene mark, the unknown, before looking to the known, for the reasons page 59 you have explained. When it comes to the comparison, are there particular steps in the methodology or does that then become self-evident that you have identified a target group of points in the crime scene mark and then you are comparing against a series of knowns to see if you can find a match. Is it as simple as that? A. Pretty much. It's not much more complicated than that. As you stated, we find a target group first in the latent print and a target group or a target could be something like a scar that you can observe in the latent print. If there's a scar running through that fingerprint then you know you are looking for a finger with a scar on it and then it doesn't take but a couple of seconds to look at a fingerprint form and say, well, this man doesn't have any scars on any of his fingers. Of course it could be that a scar came after and, therefore, if you have a scar from a crime scene mark yesterday and a fingerprint form 10 years old it can still be the same person. But if you've got a scar from the crime scene mark yesterday and you've got a new set of fingerprints from the individual today and he doesn't have any scars, you can rule him out in a matter of seconds. When you're doing the comparison, the general page 60 process would be to start at level 1 and if you can determine a pattern (for example, a whorl or a loop) in the unknown mark, then when you search the inked prints you're looking for that pattern. If you can't see a clearly defined pattern in the unknown mark, then you've got to proceed to that target group. If there's no clear features like a scar or a clear wrinkle going through the print that you can use, your target -- and this is true in most cases -- is a group of two or three or four of the traditional points that you can memorise. Frequently, I will draw the target group in my notes during the analysis phase. I will draw the target group both to record what the target group is and, secondly, the act of drawing that target group helps to form a clear image in my mind so that I can recognise it later when I see the inked prints. When I am doing the comparison, I am looking through the inked prints for the same pattern at level 1 and then if I see that pattern, I look for that target group of points and at that stage then I put the two images side-by-side and start going back and forth, find another point in the mark look for it in the inked print. If it's there you go back to the mark and find another point, go back to the inked print to see if it is there. If at any time you are finding points in the page 61 mark that don't exist in the inked or points in the inked that don't exist in the mark then you can stop the comparison because everything has to match and if there are points present in one that aren't present in the other or vice versa, then you've got an exclusion not an identification. There's been some discussion in the field over the past decade about whether the process of comparison is a linear process or a circular process; in other words, can you follow a set pattern or do you have to keep going back and forth and back and forth? I believe it's a circular process where you have to go back and forth and, as we've alluded to earlier, sometimes you will see a clear point in the inked print and then you go back to the latent to see if it is there and, as we discussed a moment ago, you might not put as much weight on that point as you would on the clear points that you observed during analysis. But it's a complex process, comparison. It's not a linear process. There's no clear, cook-book formula that you follow every time. Q. We will look at your notes just in a moment but if I proceed through the ACE-V acronym to get the methodology, then we will look at your notes in this particular case. The E, evaluation, is there anything you require to page 62 add to what you have already said about the mental processes involved in evaluation? A. The evaluation is the phase during which you reach the conclusion that you have indeed found ridge formations in sequence having sufficient uniqueness to individualise and the evaluation phase usually goes a step further. An expert doesn't stop the comparison the first instant that his mind clicks and says, yes, it's an identification. An expert usually goes on beyond that to find additional points above and beyond what he might consider a minimum -- I hate to use the word number because it implies a specific number, but a minimum number of features. A true expert wants to go on and find just a few more to help tip the scales all the way. Q. The next stage I wanted to ask you about is the V, verification. If I understand it, you have accepted -- and this is very simplistic -- the judgment so far is essentially an opinion. It is a subjective judgment by one examiner so far. Is the verification stage an essential aspect of the methodology, recognising that the subjective opinion may be the ultimate foundation of the conclusion? A. The verification is a requirement in my laboratory. No conclusion can be reported to any person until it's page 63 verified. Obviously, I would report my conclusion to the verifier because when I present my crime scene marks and my inked prints to a verifier, the verifier knows my conclusions because I've clearly recorded them in ink. However, the verifier should repeat the analysis, comparison and evaluation independently and cognisant of the danger of confirmation bias that you mentioned a while ago, a verifier should redouble his efforts in the analysis, comparison and evaluation to compensate for that bias. In other words, when I'm teaching, for example, I will teach my students that it's more important to be absolutely sure when you're verifying somebody else's work than it is when you're doing your original work because the verification is inherently accompanied by that confirmation bias. Q. What I am interested in exploring with you is what independence consists of at this verification stage. If I understand it correctly what you are indicating is when you pass your results to a second examiner for verification, first of all, the second examiner knows that you are the individual, not just that he is verifying somebody else's work, he knows it is your work. Is that correct? A. Yes. page 64 Q. Secondly, he is given the crime scene mark and the mark with which it has been identified. So he is given a restricted selection of two images, one identified with the other and so he is given that extra clue? A. That's correct. Q. Thirdly, the examiner is given your working notes? A. That's correct. Q. So he may or may not choose to study those working notes before he carries out his work? A. That's correct. Q. What then ultimately does the independence of the second examiner consist in? A. The way we use independence in my laboratory is that the second examiner knows, for example, that I have concluded this is the right forefinger of Bob Smith, but he does not know my target group, he doesn't know the points or the features on which I've relied. He's got two unmarked impressions to compare. Generally, we consider it a lack of independence if I show marked enlargements to the person. That's not a valid verification. The verifier should have the raw images unmarked and have to find his own target group and his own points after that -- a complete repeating of the A, C and E, not starting off with my analysis, not starting off with my points. page 65 Q. If I am being picky about it, if the second examiner has your notes he could have a peek? A. He can. Q. And there's nothing to stop that? A. That's correct. Q. So it may be that what the independence really ultimately descends to and consists of is the professional integrity of the second individual and the fact that he has his own reputation to protect as much as that of the laboratory in the results that go out? A. Oh, absolutely. There has to be that level of integrity. I might add the concept of blind verification is now coming in to use in the US and it's been a source of much discussion within the last year or two. A blind verification would be where the second examiner is not even aware of any conclusions by a first examiner. The only laboratory I'm aware of currently practising blind verification on a regular basis is the FBI. They have 50 or 60 fingerprint experts and they have certain criteria by which an identification is mandated to go to a blind verification. For example, if I were to make a single identification to a suspect, that's one of the criteria requiring blind verification. Only one identification page 66 to the suspect. Then I would give that latent print and inked print card to my supervisor who would deliver it to a different supervisor, who would sanitise the images (in other words remove all of the markings or present a clean brand new set of photographs) and give it to a different examiner in a different section that I didn't work with and that second examiner would not even be aware, in the first place, that I had looked at the thing nor would he be aware of any conclusions that had been reached. Then the process requires both examiners reaching the same conclusion before it's reported. My department doesn't use blind verification. I believe that it will probably become a standard within the next five to ten years. I don't know how the small departments are going to handle that. THE CHAIRMAN: Why would that take much longer than the process you described in your own laboratory? What is speedier about it? A. The fact that the verifier currently knows which finger to look at and, for example, in a case having maybe ten suspects, now you've got 100 fingers to look at. So in the traditional form of verification, all he has to do is look at the one finger that's already been identified. In the scenario of blind verification, he would get page 67 all of the latents and all of the inked prints and have to repeat the whole process. There is a time factor. The greater concern is the reliability factor; getting rid of that confirmation bias that you mentioned. THE CHAIRMAN: So if the person was asked to verify a particular finger, the print of a particular finger, that would reduce the time involved? In other words, if they did it in the way you say the FBI did it but with them being asked to look at a particular finger. A. But in blind verification they don't do that. THE CHAIRMAN: I appreciate that I was going to raise partly blind verification with a degree of independence in which you -- the danger of being influenced by somebody senior to you or somebody very experienced would be removed. A. Yes and I see your point. You could limit it to just looking at the one finger and still achieve a degree of blindness, getting rid of the confirmation bias to some degree there. MR MOYNIHAN: I have two questions for you on this particular topic, Mr Wertheim. First of all, you mentioned the FBI practised blind verification. Is that in every case or are there only certain situations in which they see it necessary to use blind verification? page 68 A. It's only in certain cases. For example, the one I'm familiar with is the situation in which there's a single conclusion, a single identification. If I've got 100 latent prints or 100 crime scene marks and I'm comparing them to a suspect and I identify a number greater than one -- say I identified ten of the prints -- then it does not go through blind verification. It would go through a normal verification. The idea being that there is more danger of mistake in a single identification than if I've got 3 or 4 or 5 or 10 or 20 identifications to the suspect and so a higher degree of quality assurance is put on the case with only a single identification. Q. This is the last of my questions in relation to this particular topic. With all you know about the Shirley McKie case -- and we will come on later on to your opinion -- if there is an error here, the reasons for it, with that experience, do you yourself see a need in small offices for blind verification or are you just not persuaded that blind verification is actually necessary if ACE-V is properly applied? A. Even in the absence of the Shirley McKie case or the Brandon Mayfield case I believe one could present a good argument for blind verification, but I believe the Brandon Mayfield case and the Shirley McKie case page 69 strengthen the argument for blind verification. The Brandon Mayfield case, of course, led directly to the FBI's current policy requiring blind verification but the fact is that human error does occur. We talked before the break of either zero per cent or 100 per cent. 100 per cent being 100 per cent certainty and everything in the middle is uncertain or inconclusive and we don't report probabilities, but the fact is you can have zero per cent and 100 per cent and still have human error. I believe the idea that the FBI has there is if you have more than one identification then the human error factor has been reduced and I believe that's a part of that blind verification. But human error can occur in any field of human endeavour. Doctors make mistakes; lawyers make mistakes; fingerprint experts make mistakes too. Q. If I can pose the final ingredient to this is if we are looking at a situation in which an erroneous identification, let us assume, has been made within an office one could say that it's simply colleagues have become lazy and not checking each other's work. In both Brandon Mayfield and Ms McKie's case, in fact, there were external experts involved and yet on this hypothesis a mistake was made in Brandon Mayfield and, page 70 in your judgment, a mistake was made in Ms McKie's case. That, I would suggest to you, has even a form of blind verification or more independent external and yet still your opinion here is a mistake was made. Can you explain that? A. I believe you might have several doctors reach a diagnosis and treat a patient and then discover on autopsy there has been a mistake made. I don't know how verification bias or confirmation bias affects an independent expert. I believe that in the Brandon Mayfield case Ken Moses, the defence expert, independent expert, I believe he had such a high regard for the FBI that even though he was working independently he was influenced by the confirmation bias. I know myself how hard it is internally to accept that another expert has made a mistake. I've taught other experts in the US who have presented me verifications that I've found to be erroneous and I know that every time it happens my gut twists up a little bit and I think it's a human condition that creates some self-doubt. Another expert has given me two fingerprints and claimed that they're identical and yet when I look at it, I see differences and instantly I get that little gut-wrenching sensation which leads me to be page 71 even more thorough and complete in my analysis, comparison, evaluation during the verification process. I guess what I'm saying, Mr Moynihan, is that with the independent expert it can go either way. If an independent expert holds the original expert in the highest possible regard and allows that regard to overcome his own self-doubt, then he will still be subject to that confirmation bias and verify the erroneous conclusion. Whereas if the independent expert seeing something that he doesn't like can work through it, I believe the independent expert can still find a mistake. I believe that could have happened in the Brandon Mayfield case but it didn't and in analogy to Y7, I believe that's what happened in Y7 with the earlier experts who looked at it outside the SCRO. Q. We will come back to that later on when we have been through the particular analysis of Y7. Before I do so though, I have been asking you about your notes. I have them in a variety of sources but the best copy I have is in your own witness statement. It is FI0118.24. Do you recognise what has been brought up on the screen? A. Yes, sir, I do. Q. Your own notes. In fact, we see in the top right-hand page 72 corner you have actually paginated your notes so it would suggest we are looking at page 1 of 16? A. That's correct. Q. If one proceeds through the 16 pages you give an almost day-by-day account of your involvement in this particular matter? A. Yes. My notes always begin with date and time that I initiated an examination. The date, every time I go to a new day I record that in my notes. Any significant activity where I think the time might be important the time is listed in my notes as well. Q. I will go through this relatively briefly at this stage. Do we see halfway down the page you have actually sketched your observations from the piece of wood on which the fingerprint was originally found? A. Yes, sir. Q. So, as you say, you work not only with -- if you have access to it -- the images but you have actually tried to record your observations of the piece of wood? A. Yes, sir. Q. I then take you to the next page which is page 25 for us, page 2 of your notes, studying the crime scene photographs you have actually tried to have an understanding of where the fingerprint was found relative to the crime scene. page 73 A. Yes, sir. I felt like that was important in this particular case. The only photograph that I had was roughly similar to the drawing on the bottom half of that page and the drawing on the top half of the page was my interpretation reconstructing it, looking straight down from the ceiling. Q. So you are trying to understand how it could be a fingerprint could be found in that location, are you? A. That's correct. Q. I then move to the next page, page 3 of your original and page 26 for us and I will just use the digital version. Do we see in the top third what you were saying about you have to have in your own mind's eye some interpretation, some target group, you are trying to sketch out a target group? A. That's correct and that's exactly what that is. Q. Then immediately below you record: "Detail not observed in inked." What's the significance of that? A. If I pick this target group as I'm drawing it and -- can I use the highlighter here? Q. Please do. A. (Indicated) This area that I've highlighted in yellow would show about six points, ridge endings and page 74 bifurcations that I observe in the crime scene mark and those six points roughly were what I would be looking for in the inked print. In addition -- and I'm interpreting my notes now without independent recollection of what I intended when I made them ten and a half years ago -- my interpretation of what I'm looking at is that the three ridge endings with heavier dots on them which would be here, here and here (indicated), this would be my primary target group. In other words, I was looking for three points not quite in a straight line but with the middle point slightly lower than the two end points and between each pair of those three points lie two intervening ridges. So I'm looking for a point, skip two ridges to a point a little further down, then skip two more ridges to a point a little further up and that would have been the target group that I would have primarily been looking for. Then a secondary target would have been the other points as I've drawn them in there. Directly above the middle point is an additional ridge ending and one ridge removed to the left from the left-most point is a downward-opening bifurcation. So I would have been using a primary target group of the three points indicated by the red arrows and a secondary target group page 75 of those other two points I mentioned. The comment below there, that the detail is not observed in the ink, means simply that in Shirley McKie's left thumbprint I did not find those points in the same relative position within tolerance to allow me to continue any further with a comparison at that time. Q. If I, first of all, save that particular image and we will get a reference for it. MISS BAHRAMI: The reference for that is FI2209.04. MR MOYNIHAN: If I take you back to the electronic page 24, do I see as the second box entry that what you had been provided by the solicitors included, among other things, production 189 -- A. That's correct. Q. -- with some photographic impressions. Did you also have access to some copy of Ms McKie's fingerprints? Did the solicitors provide you with that? A. Yes, they did. At this point -- yes, they did. Q. If I go back to page 26, following through the sequence, do I take it that the conclusion you have reached, that it is not observed in the inked, was by reference to the materials that Levy & McRae, the solicitors, had provided you with? A. That's correct. Q. Then you go on to the precaution that you yourself took page 76 inked prints from Ms McKie and, indeed, took your own photographs of Y7? A. Yes, sir. Q. If I turn the page -- and I can take this relatively briefly -- if I go to page 27, do I see that you are again working in detail by reference to various images trying to see particular features, identify features, in the unknown against the known print of Ms McKie? A. Yes, sir. What I am doing here -- I had experienced that feeling that I mentioned earlier of my stomach knotting up and at the instant I experienced that, I determined that I was going to have to go back and complete a very thorough analysis, comparison and evaluation without reference to the SCRO productions, 189 and the others. In other words, at my first reaction that this was wrong, I said, right, rather than proceed with these chart enlargements, specifically 189, I felt at that point I had to go back and do a thorough analysis of the latent fingerprint without reference to the chart enlargements and this is my attempt in these pages to do that, to go back and study simply the latent itself before I do the comparison and later on I do the comparison in my notes as well. Q. I am not going to do the intermediate step of this but if I wanted I could use your sketch to try to audit your page 77 work to see what points you were working with at the time? A. Completely. That's the whole reason for this. I was taking these notes without ever expecting this case to develop into the situation we're in today but I realised, when I was taking these notes, that in 100 years no erroneous identification of this magnitude had ever been detected in the UK and, therefore, if I was going to challenge this identification, I needed to do so from the most thorough analysis of the latent print that I could possibly manage. Thus my notes in this case I attempted to make in the most detailed fashion I could. Q. If I proceed -- just very quickly I'll bring up page 28 to show further workings. A. Mr Moynihan, if I can stop you while we still have that page up, one thing I wanted to clarify on that drawing at the bottom, the previous page. Q. I think it has been brought back up. A. Yes, indeed. You see in the middle of that, where I'm moving the cursor now, there's a gap. In my drawing in this particular case when I was drawing this I had started at the bottom and started at the top as I recall and tried to work towards the middle and what I am indicating by -- I am going to come back to the page 78 highlighter -- what I am indicating in this particular manoeuvre in my notes is that that gap shouldn't exist, that the point in the box at the bottom corner of one of the yellow areas is exactly the same as the point in the top. I've got the fingerprint charted or analysed in two halves and those arrows were an attempt to draw those two halves back together. I just wanted to clarify that. Q. Are you indicating that where you had observed Y7 you saw a gap? A. No, no, I'm not. I'm indicating that I'm not as good at drawing a fingerprint as I should be and when I was drawing it the gap showed up in my drawing. Q. We will save that. MISS BAHRAMI: FI2209.05. MR MOYNIHAN: I think I'm getting a pattern. The first initials are the date and then it's just the number of the image we have saved that day. The next page, page 29. Again, we will progress through. Again, these are further workings by you. If we go back to 28, just further workings by you and you say at the top you are trying to refine the image resolution. So you are still trying to work it out? A. Yes, sir. In other words, I didn't just do the one drawing. I repeated it independently of the first time. page 79 In other words, when I did the drawing on this page I tried to do it separately to see if I reached the same interpretation. In this one, you will also notice that I've charted in the smear or the scuff mark that runs through the print which was present when I received that piece of wood. Q. We will come to that slightly later on. A. I will mention another aspect of my notes. I don't leave any blank space on the page and so in this particular case I've put the zig-zagging lines on the bottom of the page to assure future readers that I don't come back and add anything. I don't leave space to add anything. Q. Other than we see at the top, in right-hand corner below the possible -- is it smear line -- A. "Smear". My less than adequate handwriting. It's S-M-E-A-R. Q. You say you have actually added in an asterisk to take us ultimately to page 16? A. Right, and I believe on page 16 I reference -- I don't recall what I reference but yeah. So obviously this was ... well, we will see when we get to page 16. Q. Just before we leave this, as you are aware -- and there has been much ink spilt on this particular topic -- I just want to put this for your particular comment: you page 80 are aware that the photographs you took of Y7 there is what appears to be, as you describe it, a smear across the central part of Y7 that is not present in earlier photographs. A. Yes. Q. That is just a matter of fact. The suggestion has been made in some past situation -- I want to put this for your comment -- that you in your contact with the doorframe damaged the mark in some way, either by a cuff or a brush or anything of that sort. Did you do anything to damage the mark? A. I adamantly deny that, sir. I was careful in all of my handling in this mark, as I am not only with all evidence but especially with evidence in murder cases. Q. You have seen a report we have had commissioned by Dr Bleay that says one possibility for the smear would be that a piece of string or twine holding a court label across the piece of wood could account for that smear. Have you any comment on that? A. I've seen a photograph with a piece of twine wrapped around the wood and I would disagree with that method of attaching a tag to a piece of evidence such as this with fingerprints in place on the evidence. Q. We will leave it there. You accept there was damage but, as far as you are concerned, that was not your page 81 responsibility. The damage was there by the time you saw the piece of wood? A. The damage was there at the instant I received that wood. I don't know when it was put there but it was not put there by me. Q. If I move to page 29 in your notes, I have a reason for asking about page 29. I, at least, have a mental picture, if you recollect back I showed you some images with a point I called number 4. That is the one that in one image looked to be a bifurcation, in another a ridge ending and for you it is an area where there are two stepped bifurcations. Have you, in fact, drawn it as points 2 and 3 and if I highlight myself the area, have you drawn that in your notes? A. Yes, sir, I have. Q. Does this again show us as your working is proceeding that you are observing particular characteristics and then trying to match them up between the two? A. Yes. This was an analysis I have made of one of the inked prints that I took from Shirley McKie. When I fingerprinted Ms McKie, I didn't count the number of impressions that I took from her left thumb. I would estimate it at between 100 and 150 impressions. Here's the reasoning behind that: normally when we receive a page 82 crime scene mark, we receive a set of inked fingerprints from a suspect to compare. That set of inked prints is not always the best exemplars to use for the comparison because the best exemplar for the comparison would be one in which the direction and pressure of touch are duplicated in the inked print to match the direction and pressure of touch in the latent print. In other words, you are comparing like to like. So when I took the inked impressions from Ms McKie, I repeated over and over with the tip of the left thumb because obviously I don't need the bottom half of the left thumb, there is no bottom half to the mark, but I need the top half in its entirety because the latent impression of Y7 goes up towards the tip of the thumb and in the plain impressions and rolled impressions taken normally you would not have the tip. Therefore, when I was taking my impressions, I was trying my best to duplicate the direction and pressure of touch. This interpretation recorded here on page 6 of my notes, as you have highlighted in yellow, represents one of the inked impressions that I selected which I believed had detail running up in the same relative area of the fingerprint as represented in Y7. As you can see, I put the handwriting on first "Resolve image of inked print working outward and page 83 counterclockwise from points 1, 2 and 3". So the points 1, 2 and 3 that I have numbered that way in this drawing were where I began the drawing and, unfortunately, I did not plan correctly and had to extend my drawing up over my handwriting as I went around the print in a counterclockwise direction as described in the notes above. That's the reason the ridges overlap the handwriting there. Q. If we can just put these notes to the side, keep them on the screen, and bring back up one of the earlier images from today being either one or two, one of the saved ones 2209.1 or 2 -- it does not matter. I happen to have brought up the rolled. It does not, frankly, matter too much. It could have been the plain. Perhaps the plain was the more relevant one given what you were studying. In fact, let us bring up the plain. It will be 2209.02. I have now brought up just Ms McKie's thumbprint with what I call point 4 -- that is in the red circle. It corresponds to what you originally noted as point 2? A. Yes, sir. Q. What I want to do just to see the value of your original notes, could you tell me what you actually record at 15.45 on 27th March 1999 as your thinking in relation to point 2 in the prints. As I understand it, you are page 84 looking at a latent and an inked. I will start again. Below the drawing, the next entry is 27th March at 15.45. You have gone through an analysis of your points in the latent and the inked and what I am interested in is point number 2. Could you tell us what your original thinking was in relation to point number 2, which for me is point number 4? A. Okay. My initial thinking -- and we're talking about the point that you have circled in red on the inked impression, which is labelled number 2 in my drawing there and highlighted in yellow -- and my notes below that reflect that that point is a ridge ending in the latent print and a ridge ending in the inked print and then I have added another comment which says: "In latent, must join ridge above. In inked, must join ridge below", and that the shape is wrong. In other words that note would mean to me that the shape was out of tolerance for the level of clarity in both the latent print and the inked print. Q. So we can see that as your original observation about what for me is point number 4? A. That's correct. Q. We will follow this through in your notes. You go through further analysis on page 30 of the points in page 85 your drawing and we are going to do is move to page 31. At page 31, it is the same day, half-an-hour later, 16.15. You are now going to study a production, 189. Is that correct? A. Yes. It says chart number in latent production 189 is the first column. Chart number in the inked impression in 189 is the middle column and my evaluation of the two points is in the third column. So this particular page and I presume the following page are strictly made with reference to production 189. Q. If I then allow for that fact you are now looking at a Court production, production 189, we will see that the feature we talked about before as point 2 -- MR SMITH: I'm sorry to interrupt, our LiveNote has stopped working. I am not sure if we are the only ones but I think those behind me are having a similar problem. MR MOYNIHAN: It is okay Mr Wertheim. It is simply the electronic record of the evidence isn't working. THE CHAIRMAN: If it is going to take time what we could do is take the break now and sit again at 1.45 instead of 1.50. If it is going to take time then we might take the lunch break now, which we normally take from 1.00 to 1.50, and we will take it from now until 1.45. I am sorry interrupting your evidence but if this is going to take time I think it is better to do that. We page 86 will sit again then at 1.45. (12.55 pm) (Luncheon Adjournment) (1.45 pm) THE CHAIRMAN: I assume the problem is sorted out. MR MOYNIHAN: Mr Wertheim, we were looking just before lunch at your original notes FI0118 and we were on page 31, if we could just resume there. What I had been asking you about was a feature which you have drawn as point number 2 and I am now following it through into its court production number. Court production 189 is, indeed, for my comparative exercise, it is point number 4. On page 31 it is therefore the second one down, point number 4. We see you have indeed noted what I have just explained, that it ties back to your point 2 previously. Do you see that? A. Yes. Q. On this occasion what you write is: "Ridge ending below ridge, ridge ending above ridge." So you have carried forward that notation of a slight variation. On this occasion your evaluation is "within tolerance". Can you explain why it was "within tolerance" on page 87 this occasion? A. Possibly because it was a different day, Mr Moynihan. The reason I take notes is to provide transparency. I want you to be able to see through everything that I do and to understand what I do. I don't know if you use transparency here. The word has been used a great deal in the US. THE CHAIRMAN: Same here. A. One interpretation, I might look at this point and say, okay, that's within tolerance. On another occasion I might look at it and say, no, I really don't like that. A conclusion is not based on one little issue alone like this; it's based on the overall picture. I've tried to be completely honest and completely transparent and I've no doubt that you will find little discrepancies like this throughout my notes. It's not an attempt to be deceptive, it's an attempt to let you inside my brain during the whole process so that you can see what I was thinking at that moment. So, yes, it's a discrepancy with what I said at another point but I would argue that it's not a serious discrepancy. MR MOYNIHAN: I think we will have two themes running, if I just track this particular point through, two particular themes running. The first one is transparency. The fact is I can page 88 only ask you about this because your notes exist. The second one, I do want to follow through the within tolerance on point number 4. If I tell you -- and we can look at it if you wish -- that at the criminal trial point number 4 you accepted in your evidence as being within tolerance and, therefore, not a point of difference between Ms McKie and Y7. Would that coincide with your recollection or would you prefer to see it? A. Yes, that would coincide with my recollection. As I recall, off the top of my head, as I recall, at Ms McKie's trial I accepted a target group of five points as being within tolerance and I did that because you have to have a starting point somewhere and I said, okay, I will just accept that the target group matches and now let's move outward from the target group and see what we can find rather than argue each single point alone. You have to remember that at Ms McKie's trial, as an expert witness, I had one objective and that was to prove to the jury that Y7 was not her fingerprint. For purposes of that objective, I chose to concede those five points and let's move on from there rather than argue each point individually and separately. Q. I have looked at your evidence and you may want to just page 89 take a note. From my examination of your evidence, the points that you conceded within tolerance as you said were five, were on my numbering, this is the SCRO numbering: 3, 4, 5, 6 and 9, the five points. A. As I recall, for clarification, I believe there is an image in the Inquiry's database of my charts from that trial that have those points clearly marked on that chart. Q. We will come back to that just in a second. The points are 3, 4, 5, 6 and 9. On my understanding of your chart for this Inquiry, your differences, you are, however, today looking at those areas again and suggesting points of difference in each of those -- sorry, one of the points was your area number 1 in your charting, SCRO point number 3. I understand that you accept that your area number 1 -- I will bring it up -- in your charts it is FI0130 and it will be if we just proceed through -- THE CHAIRMAN: Is it 7? A. There. MR MOYNIHAN: Stop. It is page 17. At the bottom you have area 1 where you are accepting that there is a feature within tolerance, yes. A. Well, the statement I make there is these two bifurcations could be said to be within tolerance. page 90 There are some subtle differences in the shape. The drawing that I produced was within my best ability as a poor artist to try to produce an accurate image and the point that I'm trying to reflect in those drawings is that in Y7 the bifurcation is more or less symmetrical, like a tuning fork pointing downwards. But in the inked print the bifurcation is not symmetrical but is slightly lop-sided. In other words, in Y7 the ridge coming down before the bifurcation splits evenly to each side; whereas in the inked print the ridge coming down from the top continues more or less straight on the left-hand branch of the bifurcation and the right-hand branch angles out. So at some point in a comparison like this you have to say, okay, right, I'm going to accept this one point as a starting point. In order to do that I've got to say this one point matches. In Shirley Ms McKie's trial the goals or the objectives of that trial were slightly different to the objectives of this Inquiry, at least in my view, and therefore for purposes of Shirley McKie's trial I said, yes, right, I'll accept five points as a target group and I will concede those five points are within tolerance and let's go from there. My view or my impression is this Inquiry is intended to go into much more detail than just whether it matches page 91 and, therefore, I've gone into much more detail here. I have to accept that those points are in tolerance in order to begin somewhere. If I can't accept those two points are within tolerance, then I can't even start a comparison there. Q. What I was wanting to do just in looking at this was to explore with you what you have just said. In the criminal trial you were prepared to accept, for sake of argument, five points as being in sequence and agreement? A. Exactly. Q. For the purposes of this Inquiry, so far as I can detect, of those five, only one, your area 1, for me it is number 3, only one of those five are you prepared to concede for sake of argument. The other four in your work today you are disputing? A. That is correct. Q. It is the different mindset between the two processes that I myself am having difficulty seeing. What is the difference that makes you today question four of those five where, at the criminal trial, where after all Ms McKie's liberty was at stake, you were prepared to concede four of them? A. Because at the criminal trial the question was: was Y7 made by Shirley McKie and the answer was no. I page 92 sacrificed nothing by saying, okay, let's take the target group and concede that and move out from there. The purpose of this Inquiry, as I understand it, is not just to determine whether Y7 was made by Shirley McKie but to further determine what happened and why it happened and that's a much deeper objective to the Inquiry than there was to Shirley Ms McKie's trial. Therefore this Inquiry is prepared to go much deeper into the evidence, to spend vastly more time and effort into determining what happened than was done at the trial. At the trial, I testified for a day and a half and I believe Dave Grieve testified for half a day. So at Shirley Ms McKie's trial a grand total of two days was spent examining the fingerprint. I believe the amount of time set aside by this Inquiry demands a more thorough examination of the fingerprint than was presented at Shirley Ms McKie's trial. Q. Can I put to you an alternative scenario which fits in with some of the earlier questions and, again, reinforces the value of your own contemporaneous notes, as you say, for verification and transparency. Plainly Y7 has for ten years now been very controversial as a mark. There might be the suspicion of confirmatory bias in the two opposing camps and now page 93 we see an individual, on one wing of the argument, happens to be contradictor, brings forward four points as disputes where previously he had been prepared to concede those four points and one explanation might be confirmatory bias. You looking at this now see more points in dispute than you had perhaps seen at the time when it was less confrontational for you. What is your comment on that? A. Well, I can certainly understand that and I would not deny that such a bias may exist. I would offer in my defence that I have tried scrupulously to avoid that bias and I believe my presentation with regards to Y7 in the phase 1 exercises demonstrated the differences that show the points are not in tolerance. This one accepted. But going on from here I believe I have documented with transparency why they don't match, even though at the trial of Shirley Ms McKie I said, "Okay, I'll concede those five. Let's go on from there". I'm saying here I'm not conceding them and I can understand why you would say, "You testified this way, Mr Wertheim, and now ten years later you are testifying here", and if I can't explain to you the differences in my perception of the trial versus my perception of the Inquiry and the objectives of the trial versus the page 94 objectives of the Inquiry, then obviously you're free not to accept my evidence but it's my contention that the points are different and I've tried here in much more detail than I ever went into at Shirley Ms McKie's trial to demonstrate why those five points don't match. Q. We will come -- THE CHAIRMAN: Can I just ask while we are on the point, if you go back to your original notes on three points where you say were within tolerance, does that not suggest that it would be open to an expert to take the view that they were within tolerance even though you now no longer view all three of them as being within tolerance? In other words, if it was a legitimate view at the time that you took it, it would be legitimate for another expert to hold that view at present. A. That's correct and very perceptive, yes, because as we talked about this morning there is a degree of subjectivity and in that regard I'm not the same examiner I was ten years ago. I've got ten years of additional experience under my belt. You are entirely correct. My interpretation is based on my eye, my training, my experience and to the degree I can avoid being affected by the bias that you suggest, I can't deny that that bias may be present. MR MOYNIHAN: If we can just follow this through because page 95 point 4, I think, at least in my head, I have a mental picture of. If we turn on FI0130 to the next page, page 18, and by coincidence I suspect point number 2 in your numbering reverts to point number 2. It's always point number 4 for me but in the drawing we see on the right-hand side this characteristic step-up of two bifurcations which is what I associate with point 4 and indeed point 5. Point 4 for me is the lower of the two bifurcations on the right-hand side. I will try to mark it. THE CHAIRMAN: Just opposite the 3, figure 3? MR MOYNIHAN: Yes, sir. A. While you're doing that, Mr Moynihan, I might mention the fact because it has suddenly come into the conversation that I referred to areas rather than points. I did so because if I discuss points, then there is an implication that there is some degree of matching going on and in the areas I'm trying to avoid that because they don't match and, therefore, instead of saying point 1 matches point 1 but point 2 doesn't match point 2 and point 3 doesn't match point 3, I've tried to confine my discussion to areas of the print that correspond. So if we start at area 1, which I believe you said was the point 3 on the SCRO chart ... Q. Yes. page 96 A. Then if I start with that as area 1 and move to area 2 then the area of the print in Y7 is the same area in relation to the first point as the corresponding area in the inked print. Was that stated too confusingly. Q. No, that's okay. A. I'm trying to confine my discussion to what features are in this exact area of the print. Here are the features I see in Y7 and here are the features I see in that area in the inked print and as points they don't correspond; so I prefer not to use the word "points". That's the reason I chose to use the word "area". Q. Just so that we can discuss this, I put on two arrows. The lower of the two cuts through the number 3 I will be referring to ultimately as SCRO point 4. The upper arrow that cuts through the number 2 I am going to refer to as SCRO point 5. To tie those in to your own contemporaneous notes, which is on the other side, I hae to make a slight adjustment. The lower of the 2, the through what is number 3 is 4 and always was 4 in production 189. So it is the one we have been talking about so far. The upper one for me today is SCRO point 5. It was in the chart 189 number 14 and that will explain why in your notes number 4 and immediately after it comes number 14. The two features which I have highlighted in page 97 your notes are points 4 and 14 in your original manuscript notes and we have discussed number 4, the original marked number 2, and if you see it of number 14 a ridge ending in one, a bifurcation in the other and you have written under it "see 3 above, must join ridge below", and you write "within tolerance". So the two points, 4 and 14, you describe as being within tolerance in your manuscript notes. Are you following me? A. Okay. Q. With that in mind now let us look at what you have written in your notes for the Inquiry dealing with area 3. You say: "A blue green circle encloses an area with one feature. In the inked print the feature in area 3 is clearly a downward opening bifurcation in which the ridge path deviation is minimal on both sides of the bifurcation. In Y7 area 3 encloses either a ridge ending or bifurcation. Based on the factors of distortion, neither interpretation would be inherently wrong. But connecting the ridge ending to either the ridge on the right or the ridge on the left creates an irreconcilable difference in the ridge count between the bifurcations ridge endings from area 2 to this bifurcation ridge ending in area 3. This difference in page 98 ridge count is completely out of tolerance." It would seem that what originally in your manuscript notes you had been prepared to accept was "within tolerance" now in these notes you are saying is out of tolerance for a reason. A. Let me clarify one point because this occurred to me as you were reading through that and this goes back to the reason I prefer to use the word "area" here. In my notes I was referring to the specific point in isolation as being within tolerance compared to that specific point in chart 189. In other words, in chart 189 if I looked at point number 4 that was marked in Y7 and point number 4 that was marked in Shirley Ms McKie's left thumbprint, if I looked at that point in isolation in production 189 it was within tolerance. What I'm saying in my phase 1 exercise is that if I take that area and look at that cluster of points that appear in that area, they are out of tolerance. So I am sorry for the misunderstanding there. I don't deny that my interpretation may change a wee bit over ten years but it occurred to me while you were reading that, oh, that's what I've done here. In my notes I'm looking at the single point in isolation in production 189 and commenting on specifically the point that was charted. In my phase 1 page 99 explanation here I'm looking at the area and I'm looking at each point in relation to the other points that are around it and those are out of tolerance. Q. What I want to do is get to the end of your notes and then we will actually go to look at Y7. If we could save the right-hand image (that is FI013.018) as an image for today, please? MISS BAHRAMI: That is saved as image FI2209.06. MR MOYNIHAN: If I can take you to the end of your notes, for me that is FI0118.39. That is page 16 of your notes about the smear line. A. Okay. Q. If I understand it correctly, in this particular section of your notes what you are now doing is you are trying to work out if there has been movement in the mark to account for the smear line. Would that be correct? A. "Analysis by following the ridges from side to side through the latent with particular attention to the lack of offset ridges and continuous Level 3 detail indicates no smear line or slippage line exists. Detail and ridge features are dependable in their relationship from side-to-side across the print and features noted in initial analysis do, in fact, occur in that zone." I was looking at it primarily as a smear; that is a brush mark or a smudge, something dragged across the page 100 surface after the latent print was developed and wiped away the powder in that stretch. I included the term "slippage line" in here to rule that out as well, but the mark itself is obviously an artefact of damage that was introduced after the surface was powdered. Q. I think my only reason for ending up at page 16 was to say that in your notes we see ultimately you coming to consider this question about whether there was a single touch or a multiple touch and doing it relative to the smear line. A. Oh yes. I was looking at a smear line -- if you have what we refer to as a double tap, the finger touches twice during one continuous active touch but the finger touches twice, then we would call it a double tap. If the finger goes down and then slips slightly, the problem is that in either a double tap or a smudge you will virtually never have a situation in which all of the ridges line up perfectly. Rather, if you have a double tap or if you have a smudge the ridges will be offset or they will come in at different angles or there will be overlap in the ridges, as I'm demonstrating with my hands (indicated). The term that Ashbaugh uses to define the technique of analysis to determine that is run the ridges; in page 101 other words, you trace each ridge all the way from one side of the print all the way to the other side of the print and you're looking for any sign of offsetting or angularity or criss-crossing. In the absence of any of those signs when you find at all of the ridges run smoothly uninterrupted from side to side, you can reach the conclusion that it's a single touch, it's not a double tap and it's not a smear and there's no smudge line, there's no fault line, if you will, running through the print. That is basically the conclusion that I am annotating in this paragraph. Q. In relation to that particular conclusion, if I bring up for us DB0172H and we will try page 7. This is a digital reproduction of what I now refer to defence production number 2. A. Yes, sir. Q. In fact, we have the original in front of me if anybody wants to see. This was a set of transparencies that you prepared for the criminal trial. We just happen to have here the layer that has the line tracing that you are referring to. A. Right. Q. The only qualification there we will have to come back to is that you are unable to run the lines straight across in the middle section. page 102 A. Okay, may I mark this? Q. Yes, please. A. Just to be clear about the area to which we're referring, we're referring to -- this is the area to which you're referring? Q. Yes. A. It's my interpretation of this area that this was the heaviest point of pressure during the touch. In other words, the direction of touch where it contacted the flat surface, this was the part -- think of the soccer ball being mashed against the wall and the first small area of the soccer ball that touches the wall as you continue to push undergoes the most pressure and if you had a light coat, a very, very likely coat of oil on that soccer ball, when you mash it against the wall the very centre area's going to smudge out but the outer area is going to reproduce the fine detail on the soccer ball more correctly. My interpretation of this area in this mark, Y7, is that this was the outer most area of the bulb of the finger that either first or last or perhaps both, first and last, contacted the surface during the touch and release. It's possible that there was a slight smudging in that area on release. You can't follow the ridges through there but you can clearly see that there are page 103 three ridges going in and four ridges going out. Therefore, you can determine that there must necessarily be either a bifurcation or a ridge ending somewhere in that area. I might add that in my testimony at Shirley Ms McKie's trial, this area was referred to in the transcripts as "the blob", a name I believe Donald Findlay assigned to it. I understand the term "the blob" was used during Shirley Ms McKie's trial with other witnesses to refer to other areas, but for purposes of understanding my testimony if you read my transcript the word "the blob" was consistently used to refer to this area and you are correct, there is some smudging there, you can't follow the ridges through that area. Q. We will come back to this later. I am about to add without saving because we will just save this as one picture, I am about to add an arrow to a feature. Can you see just slightly up to the left and above the bifurcation? A. The infamous Rosetta point. Q. That is what I was going to ask you. If we save that image? MISS BAHRAMI: That's saved as FI2209.07. MR MOYNIHAN: If we can then move through page 8 of the page 104 transparency, that's DB0172H, it's not the clearest, Mr Wertheim, but as I understand it at the criminal trial you gave evidence relative to a number of points of difference which you circled in green. A. Yes, sir. Q. Of which one, the one that my pencil is poised at just now, if I mark it, is indeed, as you say, the infamous Rosetta stone (sic). A. That's correct. Q. We will come back to that slightly later. So the whole topic of running the ridges and that blob in the middle is relevant to this question of the Rosetta characteristic that you observed as a point of different that meant that Y7 could not be Shirley Ms McKie's fingerprint. Is that correct? A. That's correct. Another difference here I might point out between the trial and the Inquiry is the fact that at the trial in proving that Y7 was not made by Shirley Ms McKie I used an inked print that I took of Shirley McKie which contained virtually the same area of skin represented as in Y7. For purposes of the Inquiry in which a determination is trying to be made of what went wrong, then we're using the original print that was used during the original comparison, not the print that I used page 105 during my comparison. THE CHAIRMAN: Do you want this one saved? MR MOYNIHAN: Yes, sir. A. I might also point out that for purposes of the trial I demonstrated that there were four points in Y7 that did not match anything in the inked print and there were four points in the inked print that did not match anything in Y7. In actuality, there are far more differences than that but for purposes of keeping it simple and keeping the trial focused in Shirley McKie's trial I restricted myself to four differences in each of the two prints. Q. My only reason for looking at this particular image was by coincidence of the four green circles, the differences you highlighted here, one has become a somewhat infamous example of the debate on either side about whether an explanation can be given for the Rosetta characteristic or not. A. Yes, sir. MISS BAHRAMI: That image is FI2209.8. MR MOYNIHAN: Take that down. Before I begin with Y7 I just wanted to ask you some questions about XF, not something we have discussed so far. XF was identified by the Scottish Criminal Record Office as a fingerprint of David Asbury who was the page 106 accused and do I understand it you agree that the identification of XF as David Asbury's fingerprint is correct? A. Yes, it is. Q. You did raise some questions about the authenticity of the fingerprint, questions that you raised, and you will be aware that you are one of the few people who have actually seen a copy of the full report by Dr Bleay? A. I was shown a copy of that report. I did not read it in detail. Q. Have you even now not read it in detail at all? A. I've read the section related to XF. Q. I can be relatively brief in relation to this. As I understand it, Dr Bleay, a scientist from the Home Office who will give evidence in relation to his opinion, has carried out some work, examined the mark in a number of ways and has reached the conclusion it's a naturally deposited fingerprint and he has answered by implication some of the questions you yourself raised. In the light of what we have read in Dr Bleay's report, are you happy that your questions have been answered about the authenticity of XF. A. Oh, yes. I mean, accept Dr Bleay's report. I had the questions because I was never allowed to examine the original gift tag. I examined a photograph of a gift page 107 tag. Based on my research from 1992, 93 and 94 into fabrication of fingerprint evidence, in the photograph there were some issues raised which I felt needed to be answered and if Dr Bleay's answered those objections or my questions -- I shouldn't say objections, my questions -- then I am perfectly happy to accept his report and accept his conclusions. Q. I will give you a chance overnight just to read it more carefully and if you have any doubts about it then you can feel free to raise those doubts with us. A. Certainly. Without examining XF myself, I feel like I can't endorse his report and I certainly wouldn't testify to the merit of his report but I'm willing to accept it. Q. I just want to ask you some questions about the history and one of the pieces of information that has since been supplied by Mr Dalyell. I understand from Mr Dalyell that this is a photocopy taken from a civil process of the gift tag as photographed by you. A. I would say this is a gift tag photographed by me. Q. If I understand the history of this, you prepared a report primarily in relation to QI2 in which you also touched on XF and you said you had not seen XF. Is that correct? A. That's correct. page 108 Q. That the then defence solicitors for Mr Asbury, a firm in Edinburgh called More & Company, wrote to the Procurator Fiscal to ask that you have access to the gift tag. Are you aware of that? A. They asked that I have access to all of the related fingerprint evidence in that case. Q. Did you then go to the Procurator Fiscal's Office? A. Three times. Q. The particular photograph that we see brought up just now, is that a photograph you yourself took or a photocopy of a photograph you took? A. I believe it is, yes. Q. Was that the gift tag that you were shown by the Procurator Fiscal? A. Yes. When I attended the Procurator Fiscal's Office in Kilmarnock, the first visit I was denied entry and access, the second visit I was given very limited access and the third visit I was given what I was told was everything and there were boxes of evidence, there were piles of documents, there was a tremendous amount of material to go through. As you mentioned, Mr Moynihan, my primary concern was QI2. I wanted to look at the tin, I wanted to examine everything surrounding QI2. I was only secondarily interested in XF at that point because it page 109 was my understanding from Mr Asbury's solicitors that Mr Asbury readily admitted being in Miss Ross's house some days prior to her murder and therefore, at that point, XF was relatively insignificant in my mind. Therefore, as I was going through the evidence I saw the gift tag and I thought to myself, "Yes, right, that's the gift tag. Let me take a picture of that", click, and I moved on. I was focused on XF. It wasn't until some time later that I realised the gift tag that I had photographed was not the gift tag that appeared in the photograph of XF which I had previously been provided. So I have to admit carelessness on my part during that examination at the PF's office in not seeing that at the time. It's just that I wasn't focused on it and I missed it. Q. I will bring up a copy of XF, the gift tag, in a second but before I do just so everyone makes a mental note -- A. Mr Moynihan, let me interrupt you there and add that I went through every single item and sheet of paper at the PF's office in Kilmarnock and this was the only gift tag that was in that collection of evidence. Q. If we look at the contrast with what I am about to pick up. First of all, people should be aware what you have photographed is a label with a red ribbon, the inner picture with the stars is blue and the outer margin has page 110 a red motif against gold. That is red, blue, red and, if I bring up one picture, ST0001.3, this is the gift tag in Marion Ross's house. We see the ribbon is white not red, the inner area is red not blue and the motif around the outside seems to be blue not red. A. Yes, sir. Q. So for some reason it would seem that the gift tag on which XF was located was not the one that you photographed? A. Oh, no, that's correct and I might point out too that the only photograph I had of XF was a black and white photograph which I believed to be a colour reversal so that all of the black components of the photograph were white and all the white components were black. So my recollection of XF at the time I was in the PF's office was based on that black and white colour reversed photograph; therefore, colour differences were meaningless to me. I'd never seen a colour photograph of XF. Q. The final piece of this particular jigsaw, Mr Wertheim, is to look at your own contemporaneous notes. In this instance CO1734.4, not the best of photocopies to begin with but, as I understand it, this is a note by you of an attendance at the PF's, the Procurator Fiscal's, Office in Kilmarnock on 25th April 2000. page 111 Do you see that? A. Yes, sir. Q. If I read your writing correctly, point number 1 you are shown a plastic bag with a label and it contained wrapping paper, a box of three bath soaps and a gift tag and then you give the serial number with XF. Do you see that? A. Oh, yes, I do. Q. Can you explain that because that, on a first reading, would suggest that what you have actually seen is the gift tag bearing that serial number? A. So it would. My recollection must be defective or my notes are defective -- one. Somewhere along the way I've lost my original notes. I don't know if I gave my original notes in this case to Mr Asbury's original solicitor or if -- I don't believe I gave my notes to Digby Brown but at the bottom line I don't have my original notes on this case. Q. This is a poor photocopy. A. This is the first time I've seen them in eight or nine years. Q. What I would like to do is to take you to the last quarter, just below where the black punch-hole is. Number 1, corresponding with the plastic bag. You will need to read some of this for me. It seems to say: page 112 "Removed gift tag from bag", there is then a serial number "XF, appears to have been CA fumed"? A. Yes, sir. Q. What does "CA fumed" mean? A. CA is cyanoacrylate ester. Superglue is the common term. By evaporating superglue in a sealed chamber the superglue fumes respond with the residue and harden the fingerprint and turn it white, which allows for a subsequent dye staining and photography. Q. I can actually get my tongue round superglue a bit earlier. If I tell you Dr Bleay says from his examination of XF it was indeed superglue. You then go on to say: "Fume on varnished side". Is that correct? A. "It would be processed in liquid chemistry on reverse. Mark in CA on surface leads to same as seen in photos and ..." Q. Client? Or chart? A. Yes. Oh, "same as in photos and chart", yes. Okay. My sincerest apologies to the Inquiry because I need to retract my comments then regarding XF. I had lost any independent recollection of this and did not retain my original notes and I've got to simply say, "Hey, I was wrong on this one". Q. After the algebraic reference, the three dots for page 113 therefore, the conclusion is "legit [legitimate] CA print"? A. Yes. My apologies to the Inquiry. Q. Apart from anything else, that coincides directly with Dr Bleay's understanding that it was a superglue process applied to develop the print, the gift tag has itself been chemically treated with some form of yellow and we could look and check that XF, the fingerprint, has the code that you have noted there. You now accept you must have seen the gift tag? A. I must have seen the gift tag and simply forgotten about it -- THE CHAIRMAN: It is a long time ago. A. Honestly, sir, I was focussing on QI2, not on the gift tag, until a later date when I realised that that other photo -- obviously I photographed this. I mean, my notes clearly reflected I did, so I've got to -- and I recognise my handwriting. Therefore, I would speculate that the photographs and all of the related material that I have related to XF probably resides in the files of Mr Asbury's initial solicitor but I have no knowledge of where it is. MR MOYNIHAN: I can certainly tell you as far as I understand, go back to page 1 of the CO1734, there is a characteristic covering note that enables me to say the page 114 source of this particular copy of your notes -- it will not mean anything to you, Mr Wertheim, it means something to me -- this has come from a police inquiry. You statement was taken from you and it says on 24th August 2000 a police inquiry, that we call Operation Alba, to which you must have supplied a copy of your notes. A. That would have been the Mackay Robertson Inquiry and I've got to say that my collection of evidence in this case is terrible because, with all of the inquiries and all of the various solicitors and attorneys, each of them has walked away from the meeting with some of my original material. THE CHAIRMAN: They like gathering up material. It is endemic, I think. A. If I had foreseen the extent to which this was going to carry on for over a decade, I think I would have kept better track of things. MR MOYNIHAN: What I was about to do is leave XF and turn to Y7. I do appreciate it is a little early but we may want to -- THE CHAIRMAN: It sounds very early but we take a short break now because the catering facilities close at 3.00. I should say now that, subject to you being willing, I would propose today to continue until 4.30 in the hope page 115 that we can get through more of the evidence because we realise that time, through no fault of yours, is limited that you are available. A. Sir, I am willing to stay until midnight. I did not come all the way from America to leave here at 4.00 and go to the pub. I came to answer the questions and I am willing to stay as long as necessary. THE CHAIRMAN: Unless it affects anybody seriously, we will go on until 4.30 today and we will sit again at 2.55. (2.45 pm) (A short break) (2.55 pm) MR MOYNIHAN: Mr Wertheim, I am now about to turn to Y7. What I have brought up on the screen are some images of Y7. There are four for a reason that will become apparent in a moment. First of all, I have on the top twice over the same set of images. This is the SCRO charting which, for the record, is FI0167A and at the bottom your charting FI0164A. So that my colleagues can follow, we have had all the images recharted to try to get the best resolution possible and it is the A charts. I will have to give out some further references. It is the A charts that are the correct references. So the opening statement page 116 was reissued yesterday with a table 2C, I believe, with some updated references. It is still the same code number but the best images I understand are now those with an A suffix at the end. We will see how we work with them. What I want to do, Mr Wertheim, as I said to you yesterday, is I want to work through the points in relation to Y7, as I said in my opening statement this morning, primarily using the SCRO numberings for consistency across all of the witnesses but we will bring up your own chartings so that you know the particular point that you were thinking of when I then relate it to the SCRO numbering. With any luck the fact I have four will enable me to highlight what I am looking for. What I want to begin with is a point numbered 1 on the SCRO charting. Let us start at the top. A. I'm seeing a cultural difference here and that is in America we always put the numbers outside the box. Q. First of all, I think if we could -- since I'm not as good at this -- if we take away the top right and bottom left images just for the moment ... It is 164A now to be on the right-hand side. Beginning with SCRO point number 1, my cursor is now just on the left-hand side, I cannot see -- but please page 117 correct me if I am wrong -- that that coincides with any of your charted differences? A. I am sorry but on this screen I cannot see any point in that image that -- Q. I will enlarge it. A. Can we just cut out the point, just a very small area, right there. Q. What is being suggested -- and this is perhaps proof of something else that we were talking about earlier on today -- if I give you the original, that is the photograph of both your own chart and the SCRO chart, that may help. A. I believe we were both using the same photograph that is to say a photograph made at the same exposure from the same negative. Therefore, the images should be as close to equivalent as humanly possible, my point being that what's in the SCRO image should be the same as in my image. Q. Sorry, all I am saying is the area in which their charted point number 1 appears is not an area that you have marked up as containing a point of difference. A. No, no, I did not mark all of the differences I saw. I chose 12 areas to mark. I ignored this. I can't tell you why, except that I was focussing on the other areas. Q. Point number 1 in the SCRO charting, if I therefore take page 118 your 164A down just now, I will just concentrate on the SCRO charting on the screen. I will concentrate on the SCRO charting. This is now the SCRO charting and I can enlarge the image. It is behind you or it will be in a second behind you on an easel -- A. May I make a suggestion, please? Q. Yes. A. Rather than enlarge the entire image with the numbers, if I'm going to do an analysis and use the tools to draw I might ask that you just go ahead and cut out the numbers because we can still determine which number we're talking to and it will give us a larger image on the screen. Q. We can zoom in a little but for the moment I am just trying to get the location of point number 1. Just in this level of detail, because there is already a degree of magnification, if you were carrying out your initial analysis -- this is the A of ACE-V -- what would your attitude be to the point that my cursor is hovering over now where point number 1 is identified? A. Frankly, I don't see a point in there. I would certainly not choose that as a target or a beginning point. I would begin with an obvious point. I mean, if we want to focus on this point what I would like to do with your permission is cut out that area and do a page 119 little quick analysis along the ridges. Q. Please do. If you cut it out -- well, first of all, if we just look at the SCRO original. Just double check, Mr Wertheim, because I'm concerned we might not have the best quality image. Just double check looking at the original does not make any difference to you. (Handed) A. I'm looking down the image this way because sometimes, especially in broken up ridges like this, it's easier to connect the dots and form a correct ... but this changes nothing in the way I would have interpreted it from the screen. So if you will allow me I will cut and mark the screen. If we are looking at the area marked number 1 ... no, no, that's not what I want, my mistake. This is what I want. Is it enlarging? Q. This is a very high resolution so that is too small an area. If you take a quarter maybe that might help. A. There we go. Actually here we're too close. Can we undo that, please, and let me redo it. I know from practising with this software yesterday that the mouse tends to be jumpy and the smaller the image that I'm working with the harder it is to trace the ridges because the mouse wiggles. But at the same time I've got to be a little farther from the ridges to connect the dots. page 120 I'm going to pick a ridge. Let's pick this ridge (indicated) and it appears to me that this ridge goes up about here (indicated). I didn't want to do that. Can we go back to that image or do I have to start over? I see the line is still there so I'm just going to cut it out and go back to it. That appears to be one continuous ridge through this area so let's work another ridge that appears to be a continuous ridge. (Indicated) At this point -- this is on the very edge of the print which is not a reliable place to look at a print. What I am going to do here is put a red circle -- I'm going to put that red circle -- because I'm not sure about this point. It's right on the edge. Let me come back to this and I'm going to follow what appears to be this ridge down (indicated) and I am going to follow what appears to be a ridge down through here. Now for one more to follow this ridge up here (indicated). Now, the clear point that shows up here -- my apologies again, this is new software to me and it's going to take me a few tries -- this is a clear point. The way I've interpreted the ridges I would agree that there is an ending ridge or a bifurcation in this approximate location (indicated). page 121 There is a lack of Level 3 detail, a lack of clarity and even the Level 2 detail here would be subject to interpretation. However, the Level 2 detail being subject to interpretation meaning is this a bifurcation or is this a ridge ending, we can't tell. The image is not that clear, not through the fault of any reproduction method but through the fact that the Y7 itself is not that clear. Now, let me have the -- Q. If you give me second, please, just for my purposes. When you say the image is not that clear, there seems to be a ridge ending or a bifurcation in that area. Is that in the area of the green circle? A. Yes, it is and that would be -- Q. If you give me just a second because what I want to do before we lose this with so much detail, if we could save this one, please, just now. MISS BAHRAMI: It's saved as FI2209.09. MR MOYNIHAN: I can tell you by looking at my chart -- I think everyone has paper versions so they may be able to follow. The two lines, one entering the green circle and the other to the right of the green circle, would appear to be SCRO points 15 and 16. Is that correct? A. That's correct. Q. In the area of 15 and 16 you see something but you are page 122 not clear whether it's a ridge ending or a bifurcation? A. Yes, sir, that is correct. There is either a very clear ridge ending or a very clear ... no, let me back up. There is either a certain ridge ending or a certain bifurcation at that point. I can't tell from this which. Would you like me to address this issue further while we're here? Q. We will come to that just in a second because it may be that I go out of my order of going round the clock. It is quite handy to deal with this just now. First of all, if you just deal with the area that you marked with the red circle, which for me is point number 1. A. Okay. Then let my finish my analysis here and that is I see some ambiguity in this point and I am going to -- where the green line ends within that red circle, I'm going to continue with a red or with a pair of red lines. This could be a bifurcation coming down as I've indicated here (indicated) but, because it's right on the edge of the print -- and I've drawn the lower part of the bifurcation, the forking part of the bifurcation in red for the record -- and, therefore, if you put it to me that this is a bifurcation that matches the bifurcation marked number 1 on Shirley McKie's inked page 123 print I'll say that I don't disagree with that point but I don't feel that it's reliable because it's on the very edge of the print and I can't be sure that that's a true bifurcation and let my show you why. Q. If we stop there and, first of all, let us save this image. MISS BAHRAMI: That's saved as FI2209.10. MR MOYNIHAN: Can I just do for others what you are able to do by looking at the original image which is to your side. If I could bring up, please, from FI0167A, on this occasion, if I highlight Shirley McKie's print, now it will be possible to see point number 1 -- A. Yes. Q. -- which I am now going to highlight by an arrow (indicated). If I understand it correctly, what SCRO are pointing to as point number 1 is a bifurcation in Shirley McKie. Therefore, they would suggest that the bifurcation to be seen in Shirley McKie matches what you yourself have drawn on Y7. That is what you are going to go on to comment on and I just wanted everyone to know what point number 1 was on Shirley McKie that you were able to see yourself from that print. What is your comment on that as a matching feature? A. I'm not comfortable with it. I won't dispute it. I believe if -- may I add a mark on here? page 124 Q. Please do. A. I'm going to use, if I can find what happened to my arrow, a bright yellow line to indicate what appears to me to be some slippage that is disturbing the ridge flow and it's possible that while taking the rolled -- no, this is not the rolled; this is a plain impression. It's possible by taking this impression just the very edge of the skin slipped either when making contact with the paper or when releasing from the paper, but I don't like what I see along that yellow line because the ridges don't appear to flow as even and continuously as they do in the rest of the print. My point is that I am not entirely comfortable with using this point on either the inked impression or the latent impression Y7. Q. Can you just explain to me why you are not comfortable using either of these points? A. Points on the very edge of a print, unless exceedingly clear, may not be reliable and I don't see either of these as being clear enough to be reliable and may I go back over to the Y7 image and add one more line in a different colour? Q. First of all, we had better just save the fingerprint on the right? A. All right, let's save it like it is. Because I want to page 125 demonstrate on the other image why this may not be a reliable point. MISS BAHRAMI: That's saved as FI2209.11. MR MOYNIHAN: Carry on, Mr Wertheim, sorry. A. What I'm going to do is selectively erase this line and this line (indicated) and now I'm going to suggest an alternative interpretation. So many colours to choose from. Let's use magenta. This is an alternative interpretation of the ridge above and an interpretation of the ridge above that (indicated) and because we're on the very edge of this print, we can't be absolutely certain whether the first interpretation within the yellow circle is correct or if this second interpretation within the yellow circle is correct. In the area where I have the green circle to the left in Y7, there is a clear unambiguous point, be it a ridge ending or a bifurcation is irrelevant. It is a clear, unambiguous point. But the area within this yellow circle, because it's on the very edge of the print, we cannot carry our interpretation of the ridges lower than that to determine which is correct and, therefore, any selection of a point within that yellow circle I would deem undependable. Q. That is point 1. While we are on these images, first of all, the page 126 image on the left, I will save. MISS BAHRAMI: That is FI2209.12. MR MOYNIHAN: What I want to do is -- I will leave it as it is. I want to concentrate on your green circle which I will highlight with an arrow. You will see there are two points, one within your green circle, one just to the edge. A. Yes. Q. I have said to you that those are SCRO points 15 and 16. We can see two points there. You have conceded there is either a ridge ending or a bifurcation in that area. What I want you to comment on is the suggestion that what is to be seen in the green circle on Y7 corresponds to the area that I am pointing to now with my cursor (indicated) in Shirley McKie's print. I will try, without obscuring the point, to put an arrow in to indicate what I am looking at. A. Yes, sir. Q. Those are points 15 and 16 if people accept that from me for the moment. First of all, on Ms McKie's left thumbprint, the plain print, the two points that are marked as 15 and 16, how would you describe them? A. On the left? Q. On the right-hand image. page 127 A. On the right-hand side in Ms McKie's inked print what I see there are two ridge endings that overlap, one ridge ending points to the left. That's the lower ridge ending. The upper ridge ending points to the right. Q. I have also heard a description of a ridge break. Is that an acceptable term or not? A. Okay, I would accept that with the caveat that normally when one refers to a ridge break is referring to a line that runs perpendicular to the ridges. A ridge is actually a series of ridge units that combine to form the ridge. Each ridge unit is a sweat gland and the surrounding tissue, and the sweat gland surrounding tissue, the ridge units, line up to form a ridge. A ridge break is normally a disconnect between two ridge units. What we see here is not a disconnect between two ridge units but one ridge that tapers sharply above another ridge that tapers in the opposite direction below. You can call this a ridge break as long as you're not subscribing to the idea that a ridge break occurs between two ridge units. Q. Whatever description you wish to apply yourself as the preferred term for points 15 and 16 in Shirley McKie, the two nestling points of ridge ending you see, can you comment, please, on the proposition that that is the page 128 interpretation that is appropriate for the green circled area that you have marked in Y7 on the left? A. I see one point in Y7 on the left and if I can proceed with marking, I believe I can explain why that is not two points. Q. Before we do, if I save the image on the right with my arrow. MISS BAHRAMI: That's saved as FI2209.13. MR MOYNIHAN: Mr Wertheim, do you want to do your marking now in relation to points 15 and 16? A. Let's see. I'm going to see if I can cut this a little closer in here. I'm going to try to include point 1 and also the point marked in the SCRO chart as point 3, all right. Ah, we've got them. Now, let's see in here if we can likewise take a collection of points that shows point 3, point 15 and 16 and the thing they have as point 1. Okay, to start with as reference here, I'm going to choose a green arrow and I'm going to mark point 3, okay. I'm going to say that I accept completely for purposes of this discussion that these two points are our equivalent points. Now what -- Q. Just for the record the two points you said are the equivalent are the two green arrows you placed on the images which coincide with SCRO points 3? page 129 A. That's correct. Now I'm going to choose -- I think I'm going to choose a light blue line and we're going to trace some ridges here. So this green arrow goes to the bifurcation that I'm currently marking with a light blue line as SCRO point 3. Is that correct? That is the point 3? Q. I assume so. Yes. A. So there's our point 3. Now let's take the next ridge up and that's this ridge (indicated) and the next ridge up which I've already marked in green but I'm going to go over it again in light blue -- and I've run out of mouse pad here so just a second ... there we go. Now we'll take the next ridge up ... can I go back or am I going to have to trace it again? Q. It's still there. A. I'll cut it back up. I'm running into an accidental finger twitch when I do that. Now we're going to go back to the light blue squiggle. I'm going to continue to mark these ridges as I see them going up and now I'm not even going to go into the yellow circle again. We're just going to stop short of that. Okay, now I'm going to use the light blue to trace the ridges in Shirley McKie's inked fingerprint. I've page 130 got to say while I'm doing this that this mouse pad makes this much more reliable than working on the wooden desktop when I was trying to learn to use this software yesterday. So there we go. Now what I want to look at here is the distance between some of these points so let's see ... does this purple icon draw a straight line? MISS BAHRAMI: Yes. A. From point A to point B and it's a perfectly straight line, okay. So we're going to draw a straight line from here up to the point marked number 15. So this is a straight line from point 3 to point 15 and here we have a straight line from point 3 to point 15 and that's a blue line, a dark blue line. We see in Y7 that it crosses two ridges and we see in Shirley McKie's print that it crosses two ridges. The problem I'm running into with this interpretation is twofold. Number 1, I'm going to draw a purple circle and inside this purple circle I don't believe there's any reliable way -- the purple circle is in Y7 indicating the point interpreted by SCRO as point 16, I do not believe that this image justifies the interpretation of that second point, number 16, in that location. I agree with the point 15, I agree with its relative position to point number 3 but I don't agree page 131 that the point number 16 is a reliable point. I have one other problem here and that is I'm going to use now -- these colours certainly do allow us to keep things straight -- I'm going to just use a white circle now and this would be with reference to the chart enlargement behind me, this would be SCRO point 2. Okay, I didn't see that coming. So we're not going to use white. We don't have an orange circle -- I'll use an orange circle. Okay, I've circled in Shirley McKie's inked print the clear bifurcation marked number 2 in the inked fingerprint and I'm going to put an orange circle in the same area on Y7. In the orange circle in Y7 I do not see a bifurcation. My interpretation of those ridges is that they are straight, uninterrupted ridges in that area without a bifurcation represented anywhere in there. That is addressing point 2 on the SCRO chart. So we've got four points charted here, in summary, for these pictures. Point number 3 has a green arrow -- MR MOYNIHAN: Give me just a second. The screen is somewhat crowded and I do not want to lose this. We have now saved both images. A. So let me just ... MISS BAHRAMI: FI2209.14. A. To summarise here, we see four points marked in the SCRO page 132 chart -- no, we see five points marked in the SCRO chart here. Point number 1 I've discussed in the other charts so I won't belabour that. Point number 2 in the orange circle in Y7 in the inked print is a clear bifurcation in Shirley McKie's inked fingerprint but I simply do not agree with the interpretation in Y7. I see no bifurcation at that area in Y7. Point number 3 in the SCRO print is the downward opening bifurcation. I agree with that. From point number 3, represented by the green arrow in both prints, following the blue line that I've drawn upwards, I will agree with point number 15, an ending ridge, which in Y7 I've put inside of a green circle, but point number 16 as represented by SCRO is another ending ridge and, as represented by the purple circle in Y7, I do not agree with that point. Q. This is actually helpful because we are dealing with one particular segment, 15, 16, 1, 2 and 3. We will come to 4 just in a minute. If we can look just at your own charts, if I can take down I think the image on the right-hand side and replace it with FI0130, page 23 what I am interested in is area 12. You need to just double-check your area 12. From the chart behind you I understand area 12 to coincide with SCRO point 2. page 133 A. I have my notes here so let me ... my notes reflect the page that you've got up there. Yes, okay. Q. So your area 12 coincides with point 2 and what I am trying to follow just now is whether the drawing you have done freehand on the top right-hand, to what extent it coincides with what you have just drawn on the image for us just now? A. We have these images saved as they appear now; is that correct? Q. Yes, we have. A. Then I am going to add -- MISS BAHRAMI: Individually, not together. A. What I've drawn in the page on the right-hand side of the screen now, at the top of the page it says page 8 of 8, and you've got it marked, I believe, as page 23? MR MOYNIHAN: Yes. A. In the right side of the drawing of Y7, I've got a yellow circle around a feature that may be a small enclosure or it may be an artefact of distortion. What I'm going to do then is choose another one of these amazing colours and let's see -- I don't believe I've used the dark purple yet, have I? We'll use the dark purple and if we start at SCRO point number 3, we can skip three ridges and on the fourth ridge out this is an alternative possible explanation that I've tried page 134 to demonstrate in that drawing and that is that there may be a little enclosure right there. It is not reliable because the clarity of this print is too low to allow the Level 3 information to reproduce accurately. Therefore, you lack the degree of tolerance that you would need to say with any degree of certainty that there is, in fact, an enclosure here. I've put a white circle around this purple ridge to make it a little more clear. As I noted in my drawing in area 12, which is on the page on the right side of the screen, one interpretation would be that there is a small enclosure in the ridge but it may not be there, it may be an artefact of distortion. Now, if that is what the SCRO intended to be their point number 2, then we've still got, I believe, a wee bit of a problem here and that is if we can put Shirley McKie's inked fingerprint back up next to them -- Q. Give me just a second actually before we do that. A. Let me explain it then without reference to that because my words will go in the transcript. If that is the feature that the SCRO indicates as their point number 2 the problem is that in Shirley McKie's inked fingerprint there are only two intervening ridges between point 2 and point 3 and, in fact, point 2 page 135 would be on the line going down from point 15; whereas this feature that I see as an enclosure is three ridges removed from point 3 and is not on the same line going down from point 15. Q. Before we try to actually capture that particular one, because you will need to demonstrate and then we can start with a clearer picture on the right-hand side, the first point I am interested in is on your own charting area 12 you have drawn from Ms McKie's fingerprint the area that I called the ridge break, 15 and 16 -- and I take your correction about the imprecision of my language -- drawing as a ridge break 15 and 16 as I would term and it's one ridge in from the right-hand side. One ridge in on your Y7 drawing, one ridge in from the right-hand side, is this open area, (indicated) almost a very, very small lake. You do not in your drawings have any ridge ending to correspond either 15 or 16 and yet what you have drawn for the Inquiry by virtue of the access to this much enhanced image could be a ridge ending to coincide with point 15. So it would seem that what you have drawn in the Inquiry does not coincide with what you have drawn free hand for area 12. A. I accept that because this is gross interpretation of an unclear image. As I look at this -- and I'm looking now page 136 at the actual chart enlargement from SCRO, not at the screen -- and I'm going to point 3 ... 1, 2, 3, 4. Now, coming back to the screen, I'm going to confuse the issue with yet another line and I'll use this time a brown line. An alternative interpretation of this would be that the ridge coming up through point 15 continues upwards over this way (indicated) and the ridge above it would come to a ridge ending about right here (indicated) which would then be the point labelled 16. In other words, if instead of a ridge ending if we had a bifurcation up here, I've traced -- I thought it was brown but it appears to be more maroon -- ridges. Heaven help the person that has to try to reconstruct this from a transcript ... I'm drawing a light blue circle around an area encompassing the points marked on Y7 as 15 and 16. This could be a bifurcation as demonstrated in the purple. It could be a ridge ending as demonstrated in the light blue. Conversely, it could be a straight ridge on the lower end where I have the ridge ending and a ridge ending above in that area. (Indicated) There is some point in that area which, with reference to my chart, I will mark. I'm going to put a red circle on the page on the right-hand side here and it would be somewhere up in here. (Indicated) page 137 I believe my intent in area 12 was not to address the issue of points 15 and 16 but to address the area that I've got represented by the yellow circle which I've written in my handwriting on my notes there as, "a possible enclosure in Y7 may or may not be caused by distortion." So I don't believe in the drawing that I have here, Mr Moynihan, that I ever intended to address the issue of 15 and 16 in this drawing. Q. Not number 12. If I can take you -- first of all, can we save as a single unit the two pictures that are up just now. A. We might want to save those and start over with some clean images. Q. If you will bear with me. MISS BAHRAMI: FI2209.15. MR MOYNIHAN: On the right-hand side if we go back one page, please, to page 22, area 11, Mr Wertheim, is what I understood in fact my notes suggest in area 11 you were dealing with points 15 and 16. A. That's correct. Q. Again we see as circled on the right-hand side pointed to by the upper arrow again the feature I call the ridge break. On this occasion on the left, the upper circle in page 138 the corresponding area of Y7 you have drawn a bifurcation, not a ridge break, and that coincides with what you have now drawn, if I can follow this multi-coloured image on the left, it's the bifurcation in the purple within the light blue circle? A. That's correct. Q. I have to confess to being colour-challenged when it gets to things as complicated as this. What you have actually now drawn for the Inquiry here as an interpretation of points 15 and 16 is a bifurcation in the area of the blue circle? A. Yes, sir. Q. Light blue, which coincides with your freehand drawing in the area for Y7? A. Yes, sir. Q. Given in one sense the helpful complexity of what is now to be seen on the left-hand side of the screen as saved, with many circles and many lines in fact we now understand to be a series of alternatives, are you that confident of which of these you would be nailing your colours to the mast on? A. I'm not going to get married to any of these interpretations. The image is just not clear enough to be certain. I can say that within that light blue circle there is one point, unambiguously there is a page 139 point within that circle, whether it is a ridge ending below a ridge, a ridge ending above a ridge, or a bifurcation, we can't determine because of the lack of clarity in Y7 and that's not the fault of the reproduction either on the screen or in the photograph, it's the fact that in that fingerprint as it exists on the wooden doorframe there is just not sufficient clarity to determine which of those three interpretations is absolutely correct. Q. If you were doing this examination yourself, this comparison yourself, would you actually have noted a point in Y7 as part of your initial ACE-V analysis or would the lack of clarity have been something that would suggest you simply pass this by? A. Oh, I can answer that. What do my notes show from my initial analysis back in March of '99? That's the way I interpreted it March of '99. Q. So from which of the two are you asking me, is it? A. Neither one is certainly correct and neither one is certainly wrong. It could be a ridge ending; it could be a bifurcation. Q. If I read your notes correctly for area 15 -- I will just double check to make sure the numbers didn't alter ... 15 and 16 have always been 15 and 16. For 15 you write, "ridge ending see 5 above with 15 bottom side page 140 of handshake out of tolerance". For 16 you write: "smooth ridge not noted above. 16 top side of handshake out of tolerance", is what I read? A. For clarification when I'm talking about a handshake I'm talking about the overlap that you call a ridge break. And your question is ...? Was there a question there? Q. No, the question was would you in your analysis have noted in Y7 the feature that corresponds to points 15 and 16? A. No, I don't believe 15 and 16 exist in Y7. 15 might match that bifurcation or ridge ending, whichever it is, but there is no point that matches point 16. In other words, the upper side of that handshake either doesn't exist or is completely lost in the lack of clarity here but I do not agree with interpreting the top part of that handshake or the top part of that ridge break. I agree that there is a bifurcation or a ridge ending at that point which might be said to match point number 15 in the SCRO chart but I do not see anything in Y7 that could even remotely be said to match point 16. THE CHAIRMAN: Does that have a bearing on 15, because, as you say, it may well be that 16 just does not show? A. Exactly. THE CHAIRMAN: So 15 could be valid without 16 having to be valid as well because 16 may just not have come through page 141 on the print. A. I'm saying there is a point there in Y7 that we can accept as a ridge ending pointing to the upper left and point 15 in Shirley McKie's print is a ridge ending pointing to the upper left. But I can see nothing in Y7 that justifies the interpretation of a ridge ending that points downwards to the lower right but in Shirley McKie's print I can clearly see that. So what I'm saying is the interpretation of Y7 to include point 16 is not justified. THE CHAIRMAN: I think I have it clear but just to be sure, 15 can stand on its own without 16, if you understand. You do not have to have both for 15 to be valid. A. All right. I'll accept that. THE CHAIRMAN: I just want to get it clear. A. If that were true, then 15 and 16 come back together to make one ridge. In Shirley McKie's print as a handshake 15 and 16 come back together to make one ridge, all right? But I don't see that in Y7. In Y7 what I see is at point 15 it becomes two ridges and continues downward as two ridges. It never comes back together as one ridge. THE CHAIRMAN: Does that then cast doubt on 15? A. It casts doubt on them as a pair. There is a point there that's marked 15 and I agree that there's a point page 142 marked 15, but if you consider 15 and 16 as a pair with either a ridge break or a handshake or whatever terminology, then I would disagree with the interpretation that either -- if the question is ... no, if the proposition is they either both have to be there or they both have to be absent then I'd say they are both absent and this is just a coincidental bifurcation that accidentally happens to appear in the same place in Y7. MR MOYNIHAN: What I think we will do is move from 1, 2, 3, 15 and 16. Number 3 we will not need to discuss. We have mentioned it in passing anyway as a point of commonality between the two. What I will move to and give us the benefit of a clear image is I am going to move to point 4, I just pointed the pencil to as point 4. I can, therefore, clean the screen and we will start again by bringing up on the left-hand side FI0167A. Again, I will begin with Y7 and highlight that. I am wanting to look at point 4. Again, before we zoom in on point 4, we've discussed this to some extent earlier on. This is this aspect of the stepped up bifurcation so it's perhaps as well if we discuss 4 and 5 together as the two features of the step up. As you're looking at points 4 and 5 on the screen page 143 just now, what is your initial comment on your interpretation of points 4 and 5 in Y7? A. Point number 4, again, could be a ridge ending; it could be a bifurcation; I could accept either interpretation. I tend to think that it has a stronger appearance of a ridge ending with the ridge to the right of it culminating in point 5 which also appears on Y7 to be a ridge ending but again I would say that the interpretation as a ridge ending or a bifurcation is not absolute. Either one of these points could be a ridge ending, either one of them could be a bifurcation. In Y7 they appear slightly more as ridge endings that point upward with point 4 to the left of the ridge that culminates in point 5. Q. An interpretation that says that, if I could bring up again another copy, please, of FI0167A on the right-hand side, what I am going to do on this occasion on the right-hand side is highlight Ms McKie's fingerprint so we now see, if I can mark by an arrow, point 4 -- I'll try and stay a little clear of it with my arrow -- and point 5. A. Excuse me, I believe point 5 is one ridge further down from that. Q. Is that correct? On the right-hand image I have highlighted point 4? page 144 A. It's close. Q. Close enough because I don't want to obscure -- A. Well, we can clearly see what point we're talking about. Q. Having highlighted on Ms McKie's fingerprint the points 4 and 5 that are said to be coincident with the points 4 and 5 charted on Y7, what is your comment? A. May I cut further then? Q. Yes please. A. Can we erase that. I can double click on it and it will give me another chance. I need to cut that box larger. Now let's see if I can approximate that here. I'm going to start out with green to trace the ridges as I see them in Y7 and I am going to start with SCRO point number 4 and going down from point 4, I've traced the ridge. Now, I've traced it as a ridge ending because I see a break between that and the adjacent ridge. The SCRO has matched that to a bifurcation in Shirley McKie's print. I'm not denying that it's possible to interpret that as a bifurcation, but if you consider it as a stand-alone point is one thing and if you consider it in concert with others there's a difference. Now I'm going to start at the point marked by the SCRO as point 5 and I'm going to follow that ridge down. Now I'm going to put the adjacent ridges on so that page 145 we can keep point 4 and 5 in context and, finally, I'm going to trace the bifurcation marked point 3 for reference. In the inked print, I'm going to draw a green circle around point 3 just so we can keep our references straight here. I'm sorry, it's a red circle, a red circle around point 3 and the green arrowhead you drew, Mr Moynihan, is within that circle. Going over on Shirley McKie's inked fingerprint, going over to point 3 -- point 4, going to point 4 I'm tracing the ridge in the inked print in green and I'm tracing next to it now and then I'm tracing the ridge that goes to SCRO point number 5 as a bifurcation in green. I'm going to use yellow now to mark the connections because this is another one of those where you have to connect ridge endings with adjacent ridge edges to make them bifurcations. In the latent print Y7 at point number 4, if we're going to say this is a bifurcation, the yellow connection lines show that we have to connect point 4 to the adjacent ridge on the right-hand side and we have to connect point number 5, the ridge ending, with adjacent ridge on the left-hand side. If we do that and if in yellow we join point 4 to the ridge going to point 5 in Shirley McKie's inked fingerprint, then we page 146 have a configuration that roughly matches the point 3, 4 and 5 between the inked print and the latent print Y7. This is why I like to talk more about areas in mine because we've got an area here that has three points in it but we've had to connect several ridge endings and to confuse the matter we have had to connect ridge endings to adjacent ridges on the wrong side, one to the right and one to the left, in Y7 in order to sort of shoe horn Y7 into matching the inked print. While admittedly I agreed to this at Shirley McKie's trial, in reality I don't find these points within tolerance to be reliable as a group and that's because I've had to connect too many ridge endings to different sides in order to make it fit what I see in Shirley McKie's inked fingerprint. We have three points there and the three points are marked 3, 4 and 5 but I'm not comfortable accepting them as an absolute match in this situation. Q. One other feature I wanted to ask you about, if you recollect we looked at the rolled and there was a possibility there was a ridge ending rather than a bifurcation in the area of point 4? A. Yes, that's correct. Q. If I look at it on what you have drawn, the ridge that flows up to form the upper bifurcation point 5 is the page 147 ridge to the right that flows on up past point 4 and continues as a ridge up to point 5. A. Yes, sir. Q. Similarly on the inked impression, if one takes the right-hand leg of the bifurcation at point 4 as part of a bifurcation it would flow round and up to point 5? A. Yes. Q. If, however, the right leg is a ridge ending as the rolled might suggest, then what you have got in the right-hand picture as the yellow intersection to make it a bifurcation does not exist? A. That's correct. I'm saying you can force it to sort of match if you connect these ridges in different directions but then the shape of that stair step is all wrong. In the inked print you've got the stair step with the sort of double hump but if you force it to match by connecting the ridge endings, then in Y7 instead of that double hump you've mostly got just a smooth line going all the way up and it doesn't match. Q. So you have a smooth line on the outside with the two bifurcations opening on the inside; is that what you're saying? A. Yes, pretty much. Yes, a smooth line on the -- I'm sorry, did you say left or right? Q. A smooth line on the right closest to -- page 148 A. In Y7? Q. Yes, in Y7, straight line in the right, closest to bifurcation number 3 with point number 4 opening on the inside -- that's to the left. Whereas what you are saying by the step might be wrong is what you have drawn in Shirley McKie as a bifurcation is a straight line but more to the left, with the bifurcation on the right-hand side. So the bifurcation just is the wrong way round? Is that what you are indicating? A. That's correct. Q. That might be a suitable point to stop with points 4 and 5. I have got open just for the sake of clarity what you have drawn if we could take down I think on the right-hand side -- sorry, let's save as one picture, please, before I forget, both as one picture. MISS BAHRAMI: That's saved as FI2209.16. MR MOYNIHAN: If I bring up on the right-hand side an image which is FI0130.18. On this occasion, Mr Wertheim, what I want to do is look at your area 2 and perhaps if I just pick up your drawings in area 2, you have in fact drawn for us on the left-hand side as your reproduction of Y7 what you have, in fact, marked on the chart with the connections passing as you said in the opposing directions. Is that correct? A. Yes, sir. page 149 Q. Compared with the double hump 4 and 5 in Ms McKie's print? A. Yes, sir. Q. Please tell me if there is anything else in your area 2 narrative that you want to pick up that you have not already dealt with? A. No, I think we've talked about area 2. Q. In that case, if we take down these pictures and we will bring up again another clear image of FI0167A, what I am going to do now is move to point 7. Again, if I just highlight as I have done before Y7 and start there, point number 7. A. Are we to skip point number 6 then? Q. Sorry, I apologise. No we are not going to skip number 6. I perhaps got too optimistic where I was in my numbers. Let us do point number 6. I have no intention of skipping anything. Again, if we can look at this we will zoom in in a moment. You can use the original please. It is beside you. Without looking at it in detail, what do you make of point number 6? A. In Shirley McKie's inked fingerprint, point number 6 is a clear bifurcation, symmetrical, even, very gradual, the ridges on both sides straight, the bifurcation opening downward. page 150 On point number 6 in Y7 I'm seeing that there is a feature somewhere in the general area but I don't agree with the placement of the tiny yellow dot at the end of the red line which leads from number 6 into Y7. I believe the interpretation is off. Q. You are saying that by looking at the photographic original to begin with? A. I'm looking at the photographic original as I say that. Q. What I will do is highlight a segment so we can have a closer look ourselves at where point number 6 is on the digital image we have here. A. Yes, sir. Q. As we see it on the computer screen, is that consistent with what you've seen in the photographic originals to your right? A. Yes, sir, it is. Q. I take it from what you have said you, therefore, think that there is no particular feature pointed out by the red dot at the end of line number 6. A. That wasn't exactly what I intended to imply. I intended to say that there is a point somewhere in that general area but I would not interpret this as showing that point at that yellow dot at the end of the red line. I do not believe there is a valid point at that exact location. page 151 Q. It then becomes difficult to know to which side one moves as the correct feature that's been highlighted at this point. Perhaps if I move what I have just now to the left and bring up a copy of Ms McKie's print again, FI0167A, if we can highlight Ms McKie's fingerprint, point number 6 -- again, I will highlight the section so we can look at point number 6 more closely -- point number 6 would appear to be a bifurcation. Is that roughly correct? A. Yes, sir. Q. The arrow is roughly where it should be. A bifurcation? A. Yes, sir. Q. What is your comment on the proposition that in Y7 in the vicinity of point number 6 we see the echo of point number 6 in Miss McKie's fingerprint? A. I like the word echo. May I enlarge? Q. Please take over. A. I'm going to try to encompass approximately the same area here. As a starting reference, I'm going to use a green line in Y7 to trace the lines that form points 4 and 5 and for purposes of simplicity I'm going to avoid the various yellow connecting lines and just draw this in as two downward opening bifurcations designated by 4 and 5. There's 4 and 5 marked in Shirley McKie's page 152 fingerprint (indicated) and I'm going to put red arrows at numbers 4 and 5 to show what I'm talking about as opposed to your green arrow pointing to number 6. To continue on with the green lines, we have one intervening ridge in Shirley McKie's inked fingerprint and then the second ridge comes down to the bifurcation marked as point 6 in Shirley McKie's fingerprint. I'll not draw a red arrow to point number 6 here because we've got the SCRO's red line going to it and I think we are clear on what we're talking about. I may come back and mark it again later. Just for sake of continuity I am going to fill in one more ridge to the left of point 6 which also comes down to a bifurcation. Now, I'm going to come over to Y7 and I'm going to start with SCRO point 4 and it's the ridge ending that points up and then point 5 is another ridge ending that points up. The next ridge over is the one that we said could be the joining line between them and I used a yellow line, I believe, to say, right, we've got to connect that one there, we've got to connect this one here. If we do that we've got two bifurcations that are point 4 and 5. Now I'm going to go back to the green line and continue to trace ridges in Y7. The area that I'm sort page 153 of circling now with my cursor is the ambiguous area, so I'm going to leave room for several interpretations. This that I'm marking with the green arrow first is the closest to SCRO point number 6 as point number 6 is marked in this chart. There is another point right here (indicated) and then there's a ridge ending that goes up here (indicated). I'm marking all of these are in green. Then the next adjacent ridge comes down smoothly and unbroken and I think we can all agree on that. I'm going to put a yellow circle around an area that has to have some kind of a point in it. Somewhere within this yellow circle is a point. The question is how we are going to interpret it. I'm going to say let's take a light green and connect the ridges to what appears to be the most reasonable interpretation and that is a bifurcation at this point. The problem with this is that if we use these light green lines to connect these assorted ridge endings to form one point, then from point 5 to point 6, as indicated by the blue line, does not cross any intervening ridges. But if we come to Shirley McKie's inked print and draw a blue line from point 5 to point 6 it crosses an intervening ridge. So that is clearly out of agreement. Those two points cannot be said to match. Points 5 and 6 in Shirley McKie's print do not match point 5 and 6 the way we've page 154 interpreted it in Y7 with these green lines. However -- Q. If I can just stop you also because a point you had drawn I had not appreciated. If point 4 is as drawn on Ms McKie then counting the ridges there's 1, 2, 3, 4 ridges to get to point 6; whereas, as drawn here -- maybe I've got this wrong -- 1, 2, 3, 4, whereas as drawn here there's 1, 2. A. Okay, let me correct there because you're starting -- at point 4 you are starting on the right-hand leg. If we start up here (indicated) at the end of the arrow then we only cross two ridges going over. Q. In Y7 as you have drawn it you cross only one? A. That's correct. Q. So if I understand this correctly in Y7 as drawn, point 4, the yellow line connects a lower line to the left to a longer line to the right and hence the longer line to the right is not included in the ridge count? A. That's correct. Q. If we have point 4 as in Ms McKie the ridge ending is pushed to the right and, therefore, would join right to left to the ridge that goes up to point 5. That ridge going up to point 5 then enters the ridge count to point 6? A. That's correct. page 155 Q. That explains why, as you have said before, how you connect up point 4 has a consequential impact on, amongst other things, point 6? A. It does because if you consider point 4 as a ridge ending, as you did just now in the first instance, if you consider point 4 as a ridge ending then you have to skip three ridges to get to point 6 in Shirley McKie's print and you only skip one ridge in Y7. Now let me offer an alternative interpretation of Y7 that -- Q. If you give me a second, before we go to the alternatives because -- THE CHAIRMAN: Before we go can I just ask: the blue line that you put in on the left, it does cross one ridge on the way, not within the yellow circle but just outside it. A. Well, it starts within the ridge at point 5 and it ends within the ridge at point 6 but it doesn't cross any complete ridges between 5 and 6. THE CHAIRMAN: Yes, it's the same ridge that starts from -- A. Yes, sir. MR MOYNIHAN: Sorry, sir. All I was going to do was save the dual picture we have just now. MISS BAHRAMI: That's FI2209.17. MR MOYNIHAN: Mr Wertheim, you were going to give an page 156 alternative interpretation of Y7 in relation to point 6. A. Yes. There is one way that we could interpret these ridges to make it fit Y6 (sic) and that is this -- and I am going now to use a red line -- and that is if we disregard the light green connections that I have put in point 6 and if we connect that ridge ending over this direction so that the point 6 is now within the red circle or the red oval, if we do that then the ridge counts come out right. The problem with that is that I believe that is an incorrect interpretation of the way to connect those ridges. In order to do that, we have to make an almost 90-degree connection with the ridge to the left and call Y6 (sic) on that ridge and I believe we run into other problems later if we do that but we'll talk about that later. However, I believe that the connection that I've got marked in red would make the ridge counts come out correctly but that's the wrong interpretation of those three little ridge endings that I had initially marked. To clarify that while I'm testifying to it, I'm going to put three little yellow circles, small yellow circles, to mark these original ridge endings for clarification in the record. It turns out I'm not drawing very good circles ... they are three little yellow ovals and that page 157 one turned out to be more of a yellow line so let's correct that with this. I've got three little yellow circles marking what we first interpreted as possible ridge endings that we would have to connect in different configurations and to make this work as Y6 (sic), then I've got to connect the various ridge endings as shown now with the red lines connecting the various ridges and I reject that as an interpretation of Y6 (sic) because the connection of the lower most of those points in the red circle is highly, highly improbable. I find that unreliable. I believe the correct interpretation is the one I made with the light green lines connecting the three yellow circles and I believe the interpretation using the red lines to connect the yellow circles is incorrect. Using the red lines make the ridge count come out right but it's the wrong interpretation. THE CHAIRMAN: Have we reached a point on this point or area? MR MOYNIHAN: I think so, sir, since I was not planning to sit until midnight. THE CHAIRMAN: I will have to disappoint you by not sitting until midnight but thank you very much. A. I just want it on the record I'm willing to stay. I'm having fun. page 158 MR MOYNIHAN: I just want to save the image. THE CHAIRMAN: Save the image and tomorrow morning we will begin at 10.00 because I am anxious to get as much done ... MISS BAHRAMI: It's FI2209.18. THE CHAIRMAN: 10.00 tomorrow. (4.38 pm) (Adjourned until10.00 am the following morning)