page 1 Thursday, 24th September 2009 (Morning session) (10.07 am) PAT ALEXANDER WERTHEIM (continued) Further examined by MR MOYNIHAN Q. Good morning, Mr Wertheim. A. Good morning. Q. We may be about to reach journey's end now I suspect and I hope today. In relation to the three matters that I want to ask you about QI2, these are perhaps best illustrated by your own appendix. I am going to ask you about point 14 and 15 together and then I'm going to go into your areas of difference 6 and 7 which, at least so far as my eye can see, your area 6 and 7 do not coincide with specific areas of similarity on the chartings so they are unique areas of difference in your evidence. We will look at those. If I can start then with points 14 and 15 in the SCRO charting and if I bring up again, please, one copy on this occasion, the SCRO charting of QI2 is FI0166A. Also if we could bring up Mr Wertheim's notes FI0130.27. If you go back, please, to .25 and just scroll through. This is the missing page. There were some papers copies handed out. I do not page 2 know if anyone has seen fit to give Mr Wertheim a paper copy. A. I've got it. Q. You have your own original? A. The photocopy I made before I sent the original in. So we're looking at the page immediately after this one? Q. What I want you to find is your area 5. A. That would be on page 4 of 6. Q. Unfortunately, what has happened is that two pages were not put on Trial Director. So what we will do is put -- before we switch on the screen. As luck would have it, one page that was not put on Trial Director is this particular page. A. I have it on disk. I'd be glad to furnish it. Q. In that case just before we switch computers, would you do me a favour and check the original. My understanding is that your area 5 which we are about to look at coincides roughly with SCRO points 14 and 15 and that is my reason for trying to cover these points by reference to your areas of difference; so their 14 and 15 I understand coincide roughly with your area 5? A. Yes, I believe that's correct. Q. For SCRO the area that we're talking about as 14 and 15 they say that point number 14, if I bring up, first of all, the Marion Ross print, point 14 (which my cursor is page 3 over just now) they say in Marion Ross is a ridge ending. Are you happy to agree with that as a ridge ending? A. Yes, sir, that's correct. Point number 14 in Marion Ross's inked print is a ridge ending. Q. Point number 15 in Marion Ross they describe as a bifurcation. Are you content with that description of point number 15? A. Yes, sir, I am. Q. In that case, what we now do is go back to QI2 and what we are now interested in are points 14 and 15. Again, I will leave you to take over if you wish but in relation to point 14 and 15, are you content with the description of point 14 as a ridge ending and point 15 as a bifurcation? Magnify as you, please, Mr Wertheim. A. All right. I know with the poor quality of this image experience in the last two days has taught me if I go up too closely we tend to lose ... so I'm going to try and put them in the centre of the box, make the box square and put the right edge on the core of the print and we'll try to work from there, all right. Let's do the analysis on this and then we can put the inked print up next to it and see where we're going. Q. Mr Wertheim, just before we start, in that case since page 4 the right-hand screen is a missing page. If we simply bring up another copy of FI0166A, what I will do is simply start by bringing up a full copy of Marion Ross's print and then you can size that as you wish, Mr Wertheim. A. I'm going to try to make the box square with the points roughly in the centre and the right-hand edge on the core and hope that we've got it at about the same scale. As I have mentioned yesterday, I'm not entirely happy with this. Before I begin the analysis, I'll do a little demonstration and then you can save it and I'll erase it, but I see ridges up here coming down (indicated). I see some sort of indication of ridges or smear lines in here (indicated). I had indicated yesterday I see something going crossways through the print right here (indicated) and as I started to say, I mentioned yesterday that I'm not entirely comfortable at all with this area of QI2. If I were doing an analysis on my bench as an original examination of this mark, I would consider everything over here (indicated) so unreliable that I would choose to just ignore it during my comparison. There's too much of this nonsense going on to accept anything in here as reliable. Having said that, if you'd like to capture that image I will erase those and we can go back and start page 5 clean. Q. We will just save the pair on the screen. It makes life easier. A. I might add that the blue lines that I have drawn are representative of the problems I've seen but by no means do I intend for those 10 or 12 blue lines to represent an all inclusive demonstration of the problems here. Those are merely representative. There's far more to it. I mean, if you look closely you can see other up and down faint marks, you can see other sideways faint marks. May I erase it now? MISS BAHRAMI: Yes. The image was saved as FI2409.01. MR MOYNIHAN: You can erase. A. Now, with that caveat, I will attempt to trace the ridges in there as I see them through the background noise. I'm a wee bit off this morning but I think still clearly enough indicating the ridges (indicated). Oops, let me start over on that one. I slipped off the ridge there (indicated). I can't seem to stay in the centre of the road on that one. That's it. I just need to drive more slowly (indicated). Now I might add that I am doing this on screen without benefit of reference to my notes and it wouldn't page 6 surprise me if this doesn't even agree with my own drawing in the phase 1 exercise. There's just too much going on in this print in this area, too much smearing, too much overlaying, to draw a consistent and reliable interpretation of the ridges. Now -- Q. Mr Wertheim, if I could just fast forward a second and I will give you your opportunity to speak. As you say, you have drawn as best you can what you see in the left image. It would seem if we simply use the points that are marked, what you have been able to draw is one bifurcation in the area that would coincide with point 15? A. Yes, sir. Q. But so far as point 16 is concerned you have one continuous ridge; is that correct? A. Yes, sir. Q. There is, however, in that approximate area one ridge ending and I'm just pointing to it just now with finger of the cursor (indicated), there is a ridge ending. If one looks closely at Marion Ross's print, though one might be tempted to say that that ridge ending is point 14, in fact what you would say is that between points 14 and 15 there is one intermediate ridge which is absent on your charting? page 7 A. That's correct. Q. Also as you have drawn it to the right of that ridge ending if one counts 1, 2 intermediate ridges there is a further bifurcation you have drawn and do you see that further bifurcation in QI2? A. I do not. Q. As you say, if one takes it that the drawing, without putting it up on the screen here -- I think we all have paper copies of your drawing for area 5 -- I do apologise we do not have an electronic version of this just now -- but it may be, as you anticipated, or perhaps not, your drawing for area 5 just -- if you just look at the paper version, is there a reasonable similarity between what you have drawn as area 5 (namely, a bifurcation in the position, let us assume, of point 15) but the ridge ending that might equate to point 14 in SCRO you have as immediately adjacent to the right limb of the bifurcation point 15 with no intermediate ridges as you have drawn it? A. And with all due respect, even to my own self, the drawing that I've put up up here is not too consistent with the drawing that I've prepared here in area 5. Q. What I was going to say to you, Mr Wertheim, is if one concentrates on the three points of immediate relevance, point 15, we assume, is a bifurcation and that is the page 8 same in your drawing? A. I would agree with that. Q. If we then follow the right limb of that bifurcation down to a position which I will indicate by an arrow (indicated), then immediately to the right of that right limb of the bifurcation, with no intervening ridges, is a ridge ending which you have drawn on screen and which you have drawn on paper. Correct? A. Yes, sir. Q. However, if one does the same exercise on Marion Ross, start with point number 15 as the bifurcation and assume that point 14 is the same ridge ending, one encounters the difficulty of the intermediate ridge which I am going to attempt to identify by an arrow. Am I correct? A. Yes, sir. May I please add one addition to that chart at this point? Q. Yes, please do. A. I am going to use a different colour of green, a different shade of green I believe -- Q. Mr Wertheim, could I ask you to do me a favour because what I am going to do for my benefit is have some of these printed off so I can use them later. I think if I have greens on green even though they are different shades I may ultimately end up not being able to see it. page 9 If you could use something that is more contrasting that may help me ultimately. A. All right, how about purple? Q. I think magenta seems to be your favourite colour from yesterday but purple suits me fine. A. Well, I like magenta for the circles, there is just something about the magenta circle. What I want to do is with reference to the SCRO chart that is on the poster next to me and the markings of 14 and 15 on that chart, the benefit of looking in that chart allows me to see that the SCRO have interpreted the point at which I'm currently holding the cursor as a difference in ridge path from what I have drawn and I will draw a purple line then starting at that point connecting that lower ridge -- that's not exactly the direction I intended it to go. (Indicated) The purple line will represent an alternative interpretation of the ridge on which it starts and it goes up and over and connects ... I'm not entirely happy with that because I can't seem to start driving this thing in the correct direction this morning. I'm going to hold it with both hands and maybe we can make this work. An alternative interpretation would be that this ridge comes up and over and connects at that point page 10 (indicated). There now we've got it connecting. If this interpretation is correct and I want to state I'm not insisting that my green interpretation is correct. This may be the correct interpretation. If this is the correct interpretation then points -- this would be point 14. I'll use a blue arrow there (indicated). Then this would be point 14 and this would be point 15 in the SCRO charts. This could well be the correct interpretation. In fact, as I look down my area 5 my drawing agrees more with this. The problem is that we can see these faint left to right almost horizontal shadows running through this print. I'm not sure if we could resolve these images in the clearer photograph of QI2. I doubt it. This area it just undependable. So if I go with this second interpretation which apparently agrees with my interpretation in area 5, then it would be the exact two points that the SCRO refers to as 14 and 15 with the one intervening ridge. Q. Has that covered all you would have wished to have said about your own area 5? A. No. No, we can go back because my area 5 runs lower. Q. If you give me just a second. If we capture that to make sure we do not lose that and then we can let you say all you want to say about area 5. page 11 MISS BAHRAMI: That's captured as FI2409.02. MR MOYNIHAN: If you want to erase any of your marks to make the additional point or if you are happy to carry on with what you have on the screen. A. I'll simply carry on from here. I was trying to address 14 and 15. So I will now continue and mark in what I've got in my area 5 then. We will start at this ridge because it's an easy one to see and I will trace it down. I would add, Mr Moynihan, that I'm doing this not with the reference to my area 5 -- I'll put that over here -- because I want to do this with reference to the image that is in front of me on the screen right now because I believe it's important that if my interpretation is correct I can repeat it. It's part of that transparency. I'm at a bit of a loss right here (indicated). This ridge could go over this way and join the next ridge. It could come straight down and there's something up here that shows me it could come over here (indicated). I'm going to put a little yellow circle around that. I'm not sure exactly what is happening in that yellow circle. Several of the smear marks are interfering with it but we're going to pretend that we can see clearly that it continues straight down. There is just too much stray nonsense look at the ridges, apparent ridges. page 12 Maybe there are ridges. Maybe they are from an overlaying print that I'm marking right now. Let's put a magenta circle around those. I'm not sure if these are real ridges or what they are but there's something inside that magenta circle that is interfering with the image. Q. If I just stop you I think the magenta circle has now rested in the vicinity of point 13 over the feature that I inelegantly described as a hook yesterday and asked you about yesterday? A. That's correct. Yes, it is, as a matter of fact. I hadn't realised that. We can trace this ridge. Now this ridge I see as coming straight down, this ridge I see as coming down this way (indicated). If that's the case, there's a shadow in this area that may be an island or a short ridge. We can come down this way. If we do this it would appear that we have a possible bifurcation at this point. If we follow the next ridge down, it would appear that there may be a bifurcation down here (indicated). I hate doing this because there are just too many -- oops, that one's wrong. There's too many alternative -- I'm going to quit that. I could go over further. This area which I'm going to put inside of ... what page 13 shall we use? Let's use an orange circle. This area in the orange circle just has too many different lines flowing different ways. I'm not comfortable with any interpretation in there. (Indicated) Now, I'm going to come back over to the first area -- I mean, to the left of the green and magenta circles -- and I'll continue my ridge tracing there. I believe this ridge comes down. Where it goes from here, I don't know. I can't tell but I think there is another ridge starting in here that comes down. I believe these ridges may come down here. I believe this ridge may come to a ridge ending. I believe this ridge may continue on through. (Indicated) I hope it's clear, sir, what I'm trying to show here. I hope you can follow the green -- THE CHAIRMAN: Yes, I can. A. -- and see the ridges beneath them that I'm trying to follow. So if we go with the second interpretation at point 14 on which I've drawn the purple ridge I'm not even entirely sure that this matches my area 5. Let's have a look at that. Okay, if we look at that, then what I'm going to do now, I'll put three more circles. What colour have I not used that you might be able to distinguish? Red. We haven't put any red circles page 14 today. Then I'm going to put a red circle over SCRO point 15, another red circle over SCRO point 14 and a red circle over the clear ridge ending down towards the bottom. I say "clear". I would not bet my life on it but to me it seems more clear than some of the other features I've drawn and I believe then that these three features, at least in one fashion or another, remotely resemble my drawing in area 5. The three circles in red and ... Oh, my goodness, here's a fourth feature. If I take the green, and I can accept this easily, if I connect this ridge ending back up here and then come back to my red circle, then this would be the fourth feature that I see in my area 5 drawing. So the four red circles then represent the four points in my area 5 drawing and the top two of those red circles, I believe, are clearly the SCRO points 14 and 15. I know they are because we can see the little red SCRO lines that come in there. THE CHAIRMAN: Do we see those represented on Marion Ross's? A. No, sir, we do not. THE CHAIRMAN: I think that's the point, isn't it. MR MOYNIHAN: If we just save that. MISS BAHRAMI: FI2409.03. page 15 MR MOYNIHAN: Sorry, mr Wertheim, I interrupted you. Sir Anthony asked you if you could see that pattern in the Marion Ross print. A. May I demonstrate that on the inked print what I see there? THE CHAIRMAN: Yes. A. Because Marion Ross's skin, her ridges have been largely reduce to the ridge units, as I mentioned before, this is very much a game of connect the dots and even in this rather clear inked print there is some room for interpretation. I'm starting at SCRO point 15 and I'm going to follow that ridge downaways (indicated) until I think we're far enough down that we don't have to worry. Then the ridge to the left of point 15, the ridge to the right of point 15 -- I have a reason for not referring specifically to the points yet and I will get to that shortly. This seems to come this way and then down this way (indicated). The next ridge to the right. I just discovered the right click erases that ridge. Now starting at SCRO point 14 and following that ridge down, filling in from a bifurcation right here (indicated), going to the next ridge to the left. This inked print is fairly good because it allows one with some degree of reliability to see the ridge units, that page 16 is a sweat pore representing the sweat gland and surrounding tissue as the building blocks of which the ridges are made. Just for the purpose of being a little more complete here, I'm going to trace a couple more ridges to the left and then we'll come back and talk about the specific points. I like to have a frame of reference so that we can establish better the relationships between various points because ultimately that is what an identification hinges upon. I believe we have plenty here now to establish relationships. In order to put the intervening ridge between 14 and 15 -- I'm going to go back to the purple line now -- to put the intervening ridge in there at point 15 we have to connect with the ridge to the left which has point 15 in the correct position, but we have to connect point 14 with the ridge to the right in order to make this fit and if we do that then we have -- Q. Mr Wertheim, may I stop you there. Why do we have to put in that second line if point 14 -- if I just double-check -- is thought to be a ridge ending? A. All right and you're absolutely correct. Then we can erase that purple line and it fits in that regard. So okay, we've got that. Now here's the problem I have with that: while we page 17 cannot specifically count the ridge units and be exactly accurate, let's try a rough approximation of ridge units. Let's count the ridge units on the intervening ridge, starting in the mark Y7 perpendicular to point 14 we're going to estimate 1, 2, 3, 4, maybe 5 ridge units and I will draw a blue line along the intervening ridge and I will guess with may be within 1 or 2 or 3 ridge units we're looking at approximately 5 ridge units. Now if we count the ridge units along the intervening ridge in Marion Ross's print, we're looking at maybe 1, 2, 3, 4, 5, 6, 7, 8, 9 -- up here the ridge units are more clear than they are at the bottom so maybe 8 units and I'll draw a blue line along that ridge (indicated) encompassing those 8 or 9 ridge units. My point is that in an actual fingerprint identification I wouldn't necessarily count the ridge units, but I think any person can see that the length of those blue lines is too disproportional and is far out of tolerance. The two points represented as 14 and 15 in the mark QI2 cannot be said to be the same as points 14 and 15 in Marion Ross's inked prints because they are not in the same relative position with respect to each other. The distance between them is simply too great and is out of tolerance based on the level of distortion in these two page 18 prints. Q. Stop there and that is us gone round the clock because we covered point 16 of SCRO at the start. I will stop and I'll capture the images we have on screen. MISS BAHRAMI: That's captured as FI2409.04. MR MOYNIHAN: Before I move to your two remaining points of difference, Mr Wertheim, which I will give you your chance just to explain for yourself, one thought that has been going through my head as I have listened to you, in particular when you talk about the lack of clarity in some of these areas, I have an understanding that when a mark such as QI2 or Y7 is received into a fingerprint laboratory, there is an initial assessment done as to whether there are enough characteristics observable to form a basis for a reliable comparison with a sample of prints which will be checked. I call that initial test the comparability test and only if the print passes that threshold does it then enter the comparison and evaluation phase against other known prints. As I have been listening to you and we have gone round these details, the question that has been occurring to me is whether your professional view of QI2 is that it does pass that initial threshold; in other words, there is enough detail for it to be of comparable page 19 quality but, for the reasons you are explaining, you do not accept is identical to Marion Ross. The alternative is, for the reasons you have been discussing, that you do not regard QI2 as being of or achieving that minimum threshold and do not regard it as being of comparable quality. Would you tell me which of the two would better express your view of the quality of QI2? A. You have given me two choices, Mr Moynihan and that is either QI2 is of comparable quality or it is not and in many laboratories in the US those are the two choices. The FBI uses the term "to claim" a latent fingerprint and their initial assessment is exactly what you described. They go through and claim the latent prints that they deem to be of value for comparison by putting a small arch over the top of the print. So that's the initial step in evaluation, is to claim the latents. In my laboratory we do it slightly different. When we "claim" the latents, we have to claim latents of value for comparison which would mean for identification but we also have to claim the latents of value for exclusion but not identification, if you can see the subtle difference there. This mark is one that I would claim as being of value for exclusion because in yesterday's closing, I page 20 had drawn a magenta circle around the core. There were two or three points. They are not very clear but they are clear enough that I can see that they are definite points and because I could say that this is a whorl pattern with these two or three reliable points, for that reason I would say that this print is of value for exclusion. If I can look at all ten fingerprints of a person and find that none of those ten have a whorl pattern with those two or three points relative to the core, then I can conclusively exclude that person. But even if I find a fingerprint that has a whorl pattern with those two or three points, it is not sufficient to identify the person. So this print would be, in my opinion, of value for exclusion but not of value for identification. Q. What I want to do is to move on, for completeness, to the two points of difference that I have not already covered in your evidence and one of them will require me to engage with the evidence of some other witnesses, just for completeness. The two points are your remaining areas 6 and 7 which I myself have not been able to discern coincide with any SCRO points. First of all, would you take the time just to page 21 check -- and you have the originals with you -- that I am not misunderstanding area 6 and 7 and that they do not coincide with SCRO points of similarity. A. Oh very good. They do match exactly what I've drawn here or at least close enough to be within tolerance. Q. That was not the question about whether your artistry is sufficient. It is whether, in fact, they coincide with SCRO points. I don't believe that they do. A. No, they don't. Q. That is fine. In that case, could we bring up, please -- and I will have to adjust the numbering for this -- FI0130, your two appendices. If we just go to the last page of that document, for me it is page 28. I need to adjust for the missing pages. If we proceed back just page by page and I will tell you when to stop. This is FI0130.026. These are your areas 6 and 7. A. Yes, sir. Q. It is number 7 that I have to bring in the evidence of some other witnesses to discuss. So let us discuss each of them in turn. If I start with area 6, what I will simply do for the moment is I will highlight area 6. If I could put that to the side and bring up an image of your image of QI2 which is FI0165A, we will first of all find where area 6 is and, if you will forgive me, I will use Marion Ross as the one with the clearer detail so page 22 that we can identify the area you are referring to. So the area that you are referring to is the blue, light blue, circle? A. Yes, sir. Q. It is immediately above to the left of area 5 that we have been discussing. That is SCRO point 15. A. That's correct. Q. Please use whatever image you wish and I can bring up the SCRO one that does not have your circles round it that otherwise might be obscuring some of the detail. Can you just explain the particular point that you are wanting to make in relation to your area 6? The bifurcation that you describe in the drawing is the bifurcation in area 5. Can we take that to be the SCRO bifurcation number 15? A. I believe that's SCRO bifurcation number 14. Q. 14, sorry. A. Yes. May I mark those? Q. Yes, please. A. Okay -- Q. If you just stop, things become confused if we have the wrong reference. It is the bifurcation you have described in area 5 and if you look back to your drawing for area 5 -- and unfortunately we can't bring it up electronically this is the one everyone will need to page 23 look at on paper -- I thought the bifurcation in area 5 was point 15 -- A. Yes, and I have got it drawn here as -- number 14 in SCRO chart is a ridge ending and I'd suggested in the discussion, I believe, that ridge ending might be interpreted as a bifurcation and in this drawing, in both of my drawings here, 5 and 6, I have interpreted it as a bifurcation. Q. So what you are marking up then as bifurcation in area 5 is this alternative interpretation that point 14 is a bifurcation? A. Say again, please? Q. I apologise. Are you telling us that the bifurcation marked in your drawing on the left-hand side of the screen is intended to refer to SCRO point 14 but on the interpretation SCRO point 14 is a bifurcation, not a ridge ending? A. Yes and no. Yes, this is SCRO point 14 but, no, I am not intending to state that this is a bifurcation and SCRO is wrong in their interpretation. This could be a ridge ending as represented by SCRO just as easily as it could be a bifurcation that I've drawn. Either interpretation could be deemed correct. Q. I am sorry, we are at crossed purposes. All I am trying to do by looking at the bifurcation in area 5 is enable page 24 me at some later date to be able to orientate myself so I simply need to know what the arrows are pointing to on the left-hand side. A. They are pointing to a bifurcation. That's correct. Q. You are intending to point to SCRO point 14? A. That's correct. Q. I am sorry, the explanation for all these questions was simply I had made the false assumption that because it was drawn as a bifurcation it would have to be 15, not 14. A. Oh, no. Q. So it is 14, which is fine. A. Okay, with red arrow now (indicated) I am indicating in my drawings what I believe to be the points represented by SCRO as number 14 in both QI2 on the left and Marion Ross's print on the right and I have no problem with this point 14 in isolation the way SCRO has represented it. My problem comes when we look at point 15 because I will now choose a blue arrow and point 15 in QI2 I believe to be represented with the blue arrow. What I am trying to show in this chart -- no, what I was trying to show in this chart when I drew it was without reference to the SCRO's chart, but what I was trying to show here is that in the area where that page 25 second bifurcation is (SCRO point 15) I will draw a blue circle and there is no point anywhere in that area. I will draw a yellow line -- I'm not sure yellow will show up well. Let's use our magenta line -- why not. What I was trying to show in area 6 of my phase 1 presentation was that if we start at the point which we all agree is SCRO point 14, if we start at that point and go to the nearest bifurcation in QI2, which just happens to be SCRO point 15, we pass one intervening ridge but in Marion Ross's inked print, if we start at point 14 and proceed in the same direction with that line, we have to cross four ridges until we get to the nearest bifurcation. With reference to the SCRO chart, I think I would like to go in and do one more thing here and that is add a light blue line since these appear to be -- so from point 14, as I recall, we skip one ridge and these two ridges (indicated) come back up together in a bifurcation and the bifurcation now that I've drawn on Marion Ross's inked print and which I will circle in dark blue -- no, I won't use dark blue because I've already used that -- I will circle in red. The bifurcation that I've drawn here circling in red in my area 6 drawing matches the bifurcation that I am now circling in Marion Ross's inked fingerprint (indicated) page 26 which represents SCRO point 15. For clarity's sake -- I see some knitted brows -- for clarity's sake to show what I am drawing arrows to I have chosen red arrows already in both the latent and inked print for point 14 so I'm now drawing a red arrow on Marion Ross's inked print to indicate SCRO point 14. I'm now going to draw a different coloured arrow and what I'll do is I'll use the blue because the blue arrow was used in my drawing of QI2 to represent SCRO point 15. I'm going to use the blue arrow on Marion Ross's print in my drawing to indicate SCRO point 15 and I'm going to use the blue arrow in Marion Ross's inked print to represent SCRO point 15. Then I'm going to put a yellow circle around the point in Marion Ross's inked print which I have represented in the drawing of Marion Ross's inked print as the nearest bifurcation in the correct direction from SCRO point 14 in Marion Ross's inked print that is four ridges removed from point 14. I hope that is clear. Q. What we are going to do is study these drawings later. If I save that drawing ... MISS BAHRAMI: That's image FI2409.05. MR MOYNIHAN: If I start again then on -- and we will move on to area 7 which is the last of your areas of difference. I will simply bring that up on one side and page 27 I want to go back to see if this works with a clean image of -- if we could have FI0165A again on the right-hand side of the screen just to give me a clean image. First of all, Mr Wertheim, what I will do is start with Marion Ross's print so we understand clearly the area that you are referring to. Do I understand the area you are referring to is the area with the light green at the top that I am now going to indicate with the blue arrow? (Indicated) That is area 7? A. That's correct. Q. If I understand you correctly from what you had said just a few moments ago, there were some areas around the core, some bits around the core, detail that you thought sufficient to form the basis of an exclusion of the print? A. Correct. Q. Is this what you are now about to talk about? A. Yes, sir. Q. With that in mind, again, please, tell me what -- just using your drawing to begin with and then we will bring up the images so you can reproduce it on the images, can you explain to me just by using your drawing in the left-hand side the particular point that you are trying page 28 to identify that we will then see in relation to the images? A. Yes, sir. In my area 7 currently displayed on the left-hand side of the screen, in QI2 I have drawn the ridges in a light blue or blue/green colour and there is a yellow circle that shows in the centre of it a ridge ending in QI2. The ridge ending is not a blunt ridge ending but rather is tapered to a hair line and then has a little bulb at the end of it and the ridge ending points to the left. We can say with certainty that this is a ridge ending because the ridges above and below it diverge to accommodate the existence of an additional ridge between the two diverging ridges. We cannot say with absolute certainty that it cannot be a bifurcation. Rather than a ridge ending, I would accept the possibility that in a clearer print it might adjoin one of those two adjacent ridges. In either case, it is clearly a Level 2 detail because even with the unclear image in the photograph of QI2, the divergence of the ridges above and below it is absolute. With reference then to Marion Ross's print in that same area of the fingerprint, in the same relative distance above the core, there is no indication anywhere page 29 of a ridge ending. We see some incipient ridge detail, but the incipient ridge detail is what we would refer to as Level 3 detail, meaning that it is not accompanied by any divergence of the ridges around that small incipient detail. Therefore, the ridge ending in QI2 drawn in the yellow circle in this drawing can in no way be mistaken for an incipient ridge in the fashion I attempted to draw then in the representation of Marion Ross's inked print in the yellow circle. THE CHAIRMAN: Can you point on the inked print to the exact area that you are describing? A. Yes, sir. In the inked print that is displayed currently on the screen I will use a yellow circle to enclose the area to which I refer. We can see there, in fact, there appears to be the two eyes and the nose of a smiley face there as incipient ridges with one intervening ridges. If you will, it's a little triangle of three incipient ridges with one intervening ridge and here is my attempt to draw those three little incipient ridges with the one intervening ridge. You can see in my drawing I have included several other incipient ridges which unfortunately are covered by the yellow circle that I've drawn in Marion Ross's inked print here. The main point to consider is that the ridges in page 30 Marion Ross's inked print do not diverge and rather they tend to curve downward and flow downward out to the right in a downward direction; whereas in QI2, which we don't have on the screen, only my drawing right now, in QI2 in the position of that ridge ending within the yellow circle the upper ridge is still going upwards and is not curving downward at the right-hand margin of the yellow circle. MR MOYNIHAN: Sir, I apologise for interrupting your chain of thought. What I was going to do was just to first of all get a mental picture of what we should look at. Then because, as you say, of the risk that your own original ink marked circles might obscure some of the detail, I was actually going to use the SCRO images which haven't anything plotted in this area so we have an uninterrupted image to work with and then we can see these details bringing them up. So if I understand it correctly, what we are looking to is in Marion Ross, a pattern of incipient ridges, as you say, something of the order of a smiley face whereas in QI2 the incipient ridges are absent but there is a ridge ending which is not to be found in QI2? A. That's correct. Q. Now, with that in mind -- sorry, sir, for having interrupted -- with SCRO QI2, FI0166A, if we bring that page 31 up twice -- before we do if we just save what Mr Wertheim has up. MISS BAHRAMI: FI2409.06. MR MOYNIHAN: Now FI0166A twice, please. Mr Wertheim, again, since everyone is working from the same image the switch between images doesn't alter the point and the only reason I am using SCRO's image is that the area that we want to concentrate on that my mouse is currently circling around is clear of any markings in their particular images; hence it gives you a freer hand to illustrate the point. Can you then using these images highlight the area -- perhaps if I bring it up because we don't want to lose any of the detail so I will bring it up in slightly larger scale on both images. If I've made a mistake in the cropping of the image then, please, you just change it. Is that sufficient to enable you to explain the point? A. Yes, quite so, and I'm perfectly happy with the cropping you have done, Mr Moynihan. First, I want to start with the interpretation, the analysis, if you will, of QI2 and for purposes of this I'm going to start with the bifurcation which is SCRO 2 and I'm again tracing the ridges in green. I seem to page 32 have become stuck in the box. I've lost my little arrow. I've got a plus sign. (Pause) Computers come from the factory programmed with my name and any time the computer realises that I'm the one using it, they develop a glitch. Q. Again, what we will do is just bring up the entire image again, and we will simply crop an area. A. We'll continue to use this and hopefully this time I'll be able to keep the arrow instead of having that little plus sign. Once again, I'm going to start at point number 2 as labelled by the SCRO, which is the prominent downward opening bifurcation to the right of the core in QI2, the core being the centre of the print, if you would, in a whorl pattern, it's sort of like the bull's eye of a target that we would call the core. I'm not going to go into the core on this issue because I think we sufficiently abused that poor dead horse yesterday. But I believe we would agree that the green ridge as I've traced in QI2 and in Marion Ross's inked print both show the bifurcation that SCRO represents as point 2. So now we're going to work upward from there. I'm going to trace the next bifurcation in QI2 as I see it. Now we're getting over into the area that is unreliable due to all of the parallel lines coming down from the top page 33 that we drew in blue yesterday. Just for purposes of clarification I will go ahead and put some of those in this print to represent why we choose not to deal with this area (indicated). There is something that appears to have been dragged through here and I believe, Mr Moynihan, you were the first to mention these yesterday. So I don't want to go over into that area. It is entirely unreliable. However, we can still see clearly to the left of those blue lines and above the green lines we can still see some very clear ridges. So now we're going to continue tracing those and I'm going to go ahead and show this ridge ending that I showed in my area 7. I'm going to begin on the point that I indicated was a little bulb at the tip of the ridge, then a little narrower part of the ridge and then a fuller ridge. I'm going to begin at that little bulb at the end and try to drive straight down that ridge. It seems to be curving downwards slightly as we reach the blue lines. The next ridge above it appears to come in and curve and as we reach the blue lines, it has not yet begun to curve down. Possibly it's starting to curve down. I'm drawing it here (indicated). I do not intend that to represent a bifurcation so I'm going to go ahead and try page 34 to fill it in with green. Let me pull this back up. I see the lines are still on this so I'm going to attempt to cut it in about the same manner you had, Mr Moynihan. I hope that's sufficient. What I was trying to do there is show that in this area where I'm filling in a green gob I can't be absolutely sure where the ridge goes. It's approaching -- I think actually we can see that some of the vertical lines are starting to interfere here. But we'll skip that because we've got what we need to see there clearly. The ridge next on QI2 curves over. For those in the audience who aren't aware of the characteristic of this imaging system, a double tap on the left mouse takes away the magnification and sometimes I have a twitch in my finger which seems to be doing the double tap. These are the ridges that we can see fairly clearly as we go up and we've gone plenty. We don't need to go any further. I'm going to go now to Marion Ross's print. I've already drawn the green ridge which includes the bifurcation at SCRO point 2 and I'm going to skip for a moment the incipients and concentrate on the true ridges. As I think I stated earlier in the week, a true ridge is one in which the ridge units have sweat pores page 35 whereas the incipient ridges are immature or undeveloped ridges that do not encompass or do not contain sweat pores. Actually, I'm finding it convenient to use a couple of the SCRO's red lines as the margin for my drawing here. We've got a bifurcation there but of course that's off the area of QI2 so we can't look at that. I'm going to continue on up, I think, maybe one or two more ridges (indicated). I believe I've gone far enough. I've done six ridges above the ridge on which point 2 exists. Now what I am going to do is take yellow and mark the incipient ridges in the inked print. First of all, here is the small cluster of three that I referred to as the smiley face. Then I'm going to include the other three ridges that were in my drawing of area 7 in my phase 1 production. Just for sake of completeness here, I believe I'll draw in perhaps some of the other incipients in yellow that appear further up in the image. I would add the caveat that if we had a much clearer image some of these might appear slightly different but I think this is an accurate representation based on what we can see. Now, the whole issue here is that -- once again, I will use the signature magenta circle and I've drawn the page 36 magenta circle to encompass the ridges above the core of QI2 which I deem to be reliable and above the core then I'm counting 9 ridges, perhaps -- okay, I don't quite have 9 drawn but I'll go ahead and draw my magenta circle now in Marion Ross's inked print to encompass approximately the same area that I've drawn in QI2. The important point to note is that in QI2 there is a distinct unambiguous feature at the point I am indicating with a red area in QI2 and nowhere in Marion Ross's inked print does any feature exist which could even remotely be interpreted as matching that point. This point alone is sufficient to exclude Marion Ross as the source of QI2. I believe any competent fingerprint expert proceeding honestly would have proceeded from point 2 in QI2 and gone next to this point in QI2 and seen that it did not exist at all in Marion Ross's print. I believe any competent, honest fingerprint expert doing this comparison would have stopped the comparison at this instant and not continued to search throughout the unclear, smudged, overlaid, double-tapped areas and tried to search out points in those areas. MR MOYNIHAN: If we capture that image -- I see it is 11.35. If we could have a brief adjournment there, during the course of which I will ask Mr Wertheim to look at Mr Swann's charting which concentrates on this same page 37 magenta area, there is a point of similarity. I appreciate Mr Wertheim's not seen these chartings before so we might get some benefit. THE CHAIRMAN: It might speed things up if he sees them now. MR MOYNIHAN: That would finish QI2. I may have some more other more general points to cover in his evidence. THE CHAIRMAN: We will sit again -- shall I give you an extra 5 minutes, 11.55. MR MOYNIHAN: We need the number. MISS BAHRAMI: FI2409.07. THE CHAIRMAN: 11.55. (11.35 am) (A short break) (11.58 am) MR MOYNIHAN: Mr Wertheim, we have saved your image of the area above the core of QI2, the magenta area. What I want to do is show you a charting that has been prepared by Mr Swann. If you could be shown, please, the chart P for Peter -- A. Mr Moynihan, if I may beg your indulgence for just a second and that of Sir Anthony, I've made reference several times to the clearer image of QI2 that I found in the SCRO productions at the PF's office in Kilmarnock, an image that was not used for preparation of this chart and which was not included in the booklet page 38 regarding this chart and, if it please the Inquiry, I've got it on the screen of my computer and if we can get this flipped over I would simply like to show that image for a second and then we could proceed, if you don't mind. Q. Yes, please. THE CHAIRMAN: Before you do, has anyone else's LiveNote stopped? (Pause) Was there something you wanted to get up on screen? MR MOYNIHAN: It was simply to switch the screen to that of Mr Wertheim's. A. What I -- THE CHAIRMAN: No, don't say anything yet, please. (Pause) What I'm told is it's not displaying but still recording. A. Sir, I've got this image that I'm going to display. In my computer I may do some marking on it using my tools and I would be perfectly happy to copy it after I've marked it or before I marked it and then present it for the record so that it can be transferred to your computer. THE CHAIRMAN: Fine, thank you. MR MOYNIHAN: Mr Wertheim, what in fact you have produced can you tell me the source? Where did you get this copy of the image? page 39 A. When I was at the Procurator Fiscal's Office in Kilmarnock, I studied the Crown production of the charted enlargements of QI2 that were used at David Asbury's trial. I don't know the production number. I believe you may have them in your documents. I'm not aware. Q. It was production 99 of which I have only a photocopy. A. Very good. I studied those and, as I believe I indicated earlier, there was quite a pile of the documents and I sorted through some of those documents and some of them were just general presentations or general productions made to demonstrate different facets of fingerprint identification but one of the other productions, which unfortunately I did not record the production number, to the best of my memory, although Mr Moynihan has my notes so it may be in there -- but one of the other productions contained a photograph of QI2 which alarmed me greatly because it was a crisp, clear photograph in relation to the out of focus photograph that had been used in the production of production 99 to which Mr Moynihan has just advised me. Q. If you give me just second until I will check something, please. (Pause) Mr Wertheim, I am grateful to you for this image. We will indeed take a copy of it and we will try to page 40 track this back. Just by coincidence, since there is nothing new in the world, I will show you two particular images of QI2 that were not used in the comparator exercise because the comparator exercise has been done under our supervision. It has not been done by SCRO. A. That's correct. Q. It was done under our supervision and included in the images that were not used, I have two that I can show you that Miss Gilpin will bring across. (Handed). I am away from the microphone but I trust people can hear if I speak at my normal level of speaking to the children at home. These images were prepared by Dr Bleay at the Home Office from the negatives of QI2. What he says is this and I can make this available. He says this: "It has been suggested that the image of QI2 originally presented to the court has been deliberately printed out of focus in an effort to mislead. This may be true but there is a possible alternative explanation. By printing the image slightly out of focus, the sharp regular background printed pattern on the tin becomes blurred and less distracting to the eye making the flow of the fingerprint ridges across these regions easier to distinguish." Then he says: page 41 "This can be shown in the two images below", which are attached to his report but if you look on the back of the two photographs that we have given you, in pencil there will be written on one "natural colour", yes, and on the other will be written "blurred". Is that right? A. I find on the back -- oh, wait a minute in pencil ... no, I find on the back "QI2 reverse colour background blurred", that's correct, in pencil faintly up in the corner of the blurred image. Yes, indeed. On the back of the other I find "QI2 normal colour". Thank you. Q. So, in fact, what we could have had and the selection was ultimately not of my choosing but we could have had one of Dr Bleay's two but he seems to have a technical reason why one might be, I hesitate to use the term "better", why one might have certain advantages relative to the other. A. Because the Inquiry is in possession of these images, I will defer the marking of this and I don't think it's necessary to transfer the image because I believe this image, which is scanned from a negative of a photograph that I took, I believe is a photograph of the sharper image because what I did when I saw the photograph in the file -- page 42 Q. Mr Wertheim, if I could stop you. You say the sharper image, that's a quality judgment. If you tell me what is written on the back is that the one that is normal colour or blurred? A. On the back it says in the tag: "QI2 from negative (normal-colour) - Bleay X5." Q. I want you just to keep that one in your hand just now because that will be the better image. I will make arrangements to have that available to all concerned for their benefit. I will go back to my normal place. A. The image in my hand is much clearer than my image which is displayed on the screen. The reason the image in my hand is clearer than the one on the screen is because the one on the screen is a photograph I took of the original and there was necessarily some loss of sharpness in the photography process. In regards to the -- well, let me back up. My first thought in the Procurator Fiscal's Office when I first found this photograph was that this represented a gross violation of the best evidence rule. To use an out of focus photograph to produce a charted enlargement when an in focus photograph is available flies in the face of good technique I believe anywhere in the world. To the explanation that Mr Moynihan has just presented me, that it was intentionally blurred in order page 43 to obscure or to make the background noise less distracting, my response is that by blurring the background noise you have also completely obliterated any Level 3 detail, such as those numerous friction ridges -- numerous incipient ridges that exist in Marion Ross's print. In other words, you may have removed the distracting silk screen process that's apparent in this photograph, that I referred to as the sharp photograph, which on the back is marked "QI2 from negative normal colour". You may have removed the distracting silk screen process but in that operation you have also removed very valuable information from the latent print itself and that, even in spite of the suggestion that it was done to remove the background noise, that is still a violation of the best evidence rule. Q. First of all, since I do not know who selected the particular image for the criminal trials, all I can tell you is that the Inquiry, in using the negatives and reproducing images, was given by Dr Bleay both an unaltered and a blurred with the technical difference I've just explained. It transpires that, in fact, neither of those two, perhaps for reasons associated with the blurring, neither of those two was used for the comparative exercise but is still available. page 44 A. Very good and I appreciate that. I wished to make this comment to convey to the Inquiry my feelings and my shock at that instant in the Procurator Fiscal's Office and my continuing concern over the fact that the use, 10/12 years ago, of the blurred image removed crucial detail from the latent print that should have been available all along. THE CHAIRMAN: I see, yes. MR MOYNIHAN: What I would like to do though, Mr Wertheim, just to complete this particular exercise I will follow through what you have been talking about just now and then go to Mr Swann. First of all, there is a great risk that one would have to start QI2 all over again with a different image and go round the clock on the detail, but may I take it that when you wrote your original report -- and your original report is FI0118 and it is about page 56. Remember we were looking at some of these points yesterday; do you remember? A. Yes, sir. Q. Do I take it that when you were writing your comments on the 16 points you were, at that time, taking the advantage of having available to you what you regarded as the clearer image; so therefore the points that you made then, which we have gone through, can be translated page 45 now to the image that I will call the Dr Bleay image? A. I have no recollection of that. I would say that in the absence of a specific mention in regard to the 16 points, these comments (16A, B, C, D, et cetera) would refer to the image actually used in Crown production 99 and, yes, it's there. I would say that while I have no specific recollection of this report that I wrote eight or nine years ago and what my thought processes were, I would say that the comments in this section of my report refer to the image in Crown production 99 and not to the Bleay image, the sharper image. I believe that if I reference the Bleay image, the one that I referred to as the sharper image, if I used it I would have referenced it specifically in the discussion to make clear that I was using a different image than the one in Crown production 99. Q. What I would like to do then is return to the last saved image, which was your evidence in relation to the area to the top of the mark QI2. This is an area that you have indicated by drawing has in the left-hand side the one clear point which would be sufficient to exclude Marion Ross as the source of QI2? A. That's correct. page 46 Q. Let us just use the Dr Bleay image as a control point in relation to this one point. Please take your time to study the Dr Bleay image. Does it alter your evidence of the tracing that you are shown on FI0166A.001, on the left-hand side just now? A. For purposes of this drawing, it might alter it in one way, sir. May I re-mark this chart to demonstrate that? Q. Yes, please. What we can do is -- yes, this has been saved so, yes, you can adjust this. A. Based on the Bleay image -- I'm going to use a colour that we haven't used here. I'm going to use maybe orange. Based on the Bleay image, I see a slight mark which might be interpreted as an incipient ridge in QI2 which would translate in this image to the dark spot in this location (indicated). Actually, it looks like I've used red. Q. The colour does not matter, red's fine. A. Very good. The small line that I've just added as one intervening ridge, and it is below the point marked with the red arrow inside the magenta circle, the Bleay image rather than the indistinct shape in the image on the screen, the Bleay image shows a tiny fragment there which may be interpreted as an incipient ridge. page 47 Now, that is an indistinct interpretation or an inconclusive interpretation because I'm going to add a few more lines and I will use a lighter blue. There are some other of these smudge marks as a continuation of the dark blue lines that I had earlier drawn. There are some apparent smudge marks running through the print in approximately the areas I've located and this artefact that I've marked in red may be interpreted as an incipient ridge on the Bleay photograph, or it may be an artefact introduced right along that smudge line which shows up in both the image on the screen and in QI2. The point of interest to me in that regard is that in the sharp photograph, the Bleay photograph, I see nothing else, even in the sharp image, that would be interpreted as incipient ridges in that area of QI2, which is to say the area of QI2 on the screen that's enclosed within the magenta circle. In other words, if there had been incipient images in that area, they would be of value for comparison with the inked print of Marion Ross because of the predominance of incipient ridges in Miss Ross's print. By blurring the photograph, if it was done intentionally, all of the incipient information that may have otherwise been present was lost. The clear photograph, the Bleay photograph, is a page 48 moderately strong indicator that there are in fact no incipient ridges in QI2, at least to the degree that we see them in Marion Ross's print. I see that one small artefact as I've drawn in red and I'll go ahead and circle that in yellow because the red is tiny ... there is one small piece in the Bleay image that might be an incipient ridge but the Bleay image seems to me sharp enough that if there had been the predominance of incipient ridges in QI2 that we see in Marion Ross's print, they should have shown up in QI2. The fact that they are not there in any way in the crisp image is one more factor that convinces me, as if I needed another because of that single point alone, but this is another factor that argues strongly QI2 is not Marion Ross's print. Q. Mr Wertheim, I do not know how long this takes for all concerned, but I do have an electronic version of this photograph so I will try to get that to individuals as quickly as I can and get it on to the system. Just put it on the ground, Mr Wertheim. A. I'm just getting a little cluttered here. Q. That's why we try to run things electronically. We don't always succeed sometimes. The point is this: even on the two images, the one we have been using and the Dr Bleay image, they are both page 49 consistent in this one detail. As I look at the screen just now, the image with the red arrow pointing to the ridge ending in QI2 that you have charted as absent in Marion Ross, both images show that difference between QI2 and Marion Ross? A. Yes, sir. Q. If I can just keep that one point in mind, and I appreciate on a different image you say you may have been able to point to other differences, we at least we have that one. What I want to do is to look and complete QI2 by looking at Mr Swann's evidence and we can look at this in a variety of places. I think if I try -- save this image, yes. MISS BAHRAMI: That's FI2409.08. MR MOYNIHAN: What I am going to ask you to do is to look at an image provided by Mr Swann. I have it in a variety of forms. I think if I can try TS0002 I will have it in a form that we can do markings on. It is also in a presentation TS0004. Within TS0002 if I could progress to the chart P for Peter, what I have brought up is TS0002.007. It is Mr Swann's chart P and in response to your area of difference 7, which is what we have been looking at, Mr Swann responds that he has in this area been able to page 50 chart a number of points of similarity between QI2 and Marion Ross. He, like you, has been saying there is a clearer image available. I do not know yet which image Mr Swann is using on the left-hand side so we will have to try with a number of variables running here. What I really wanted you to comment on is Mr Swann's evidence that there is, in the area that you are interested in, there are points of identity between QI2 and Marion Ross and, if I understand it correctly on Mr Swann's charting, we are looking at points 1, 2, 3, 4 and 10. I assume that you would say that the presence of the ridge ending which you have identified is itself inconsistent with an identification of these two prints? A. That's correct. Q. So even if Mr Swann's interpretation is correct that points 1, 2, 3, 4 and 10 are common to both, you would say still there's not an identity because of the presence of that ridge ending. Is that correct? A. Yes, and I might add that Mr Swann's points 4 and 10 combined make up the ridge ending. Mr Swann's point 10 he's indicated with two small dots, and I'm referring to QI2, and those two small dots represent the little bulb that I referred to at the end of the ridge. page 51 Q. If you give me a second. I have brought it up in this version because we can actually magnify on this version. A. Excellent. Q. This version happens to coincide with the photographic version we have so I am not using the PowerPoint version. Now I have brought up Mr Swann's QI2 marking and you can now just highlight -- we will not take up time. Are you indicating that your interpretation would be that points 4 and 10, 10 seems to point to two particular points, you would say are points on one continuous ridge and not independent features? A. I would not state that absolutely. Q. If you want then to just, in your own words, tell us what your response is to Mr Swann's suggestion that there are here points? A. Without going back and looking at my earlier testimony, I believe that I indicated earlier that the bulb at the end of the ridge may be a separate dot but I think it's a continuation of the ridge and I indicated that the bulb has a narrow connecting neck to the main part of the ridge and for purposes of my explanation before the break, I had connected it as a continuous ridge all the way down to the bulb. I accepted it may be a ridge ending with a little dot just beyond the ridge ending page 52 rather than the connection as I drew it. I say that without looking at the Bleay image to try to resolve it in my mind. So I'm saying that Mr Swann's point 10 as marked in QI2 is the little bulb at the end of the ridge and his point 4 is the main part of the ridge beginning after the tiny neck as it goes up. Q. Again, Mr Wertheim, since I would understand Mr Swann to complain about the quality of the image we have used for the comparative exercise, I do not know which image Mr Swann would say is a better one, but let us just make the assumption that he would agree with you that the Dr Bleay image is a better image. That is the one he would choose to use. Can I just, as a control, ask you to look again at the Dr Bleay image and see whether it changes your evidence that this feature (4 and 10) is better understood as a ridge ending with or without a point, a ridge ending consistent with Marion Ross, as opposed to what Mr Swann seems to have drawn which perhaps is pointing to at least one incipient ridge, number 10, consistent with the pattern in Marion Ross. So could you check Dr Bleay's image and make sure it doesn't make any difference to your evidence. A. No. Even using the Bleay image, Mr Swann's point number page 53 10 could not be interpreted as an incipient ridge because even in the Bleay image there is a divergence of the adjoining ridges as they go past that point. That rules out point 10 being interpreted as an incipient. The Bleay image does not resolve the issue whether point 10 is a separate dot or an extension of the ridge from point 4. Point 10 leaves that somewhat ambiguous. I mean, the Bleay image leaves that somewhat ambiguous and still I would say with the Bleay image either interpretation might be correct: a strong ridge ending with a tiny dot beyond it, or a continuous ridge with a narrowing spot before the bulb. Q. Is either interpretation consistent with excluding Marion Ross or only one of them? A. Oh, you would exclude Marion Ross with either interpretation. Q. In that case what I am going to do is put that image down, finish with Y7 and QI2 and move on to some of the other general points and I am very much conscious of the time because I have to give others an opportunity to cross-examine you. What I am about to go on to is nonetheless important so I do not want to control you too much. Mr Wertheim, I do not want you to misunderstand me and what I am about to come to. What I want to do is to page 54 put to you an allegation that comes from Mr Swann. I am putting this to you as comment. It is not my allegation; it is his. Secondly, I want it to be clearly understood that because the underlying allegation is that a criminal offence has been committed of an attempt to interfere with the conduct of this Inquiry, you are not under any obligation to answer my question. You may answer it if you wish or not. You are not obliged in this jurisdiction to incriminate yourself. THE CHAIRMAN: It is equivalent to the Fifth Amendment. A. Yes, sir. MR MOYNIHAN: So do you understand? A. Yes, sir. Q. Don't, please, assume that the allegation is one made by me. In your witness statement, if I stand back, you were asked to give and you have given us a witness statement and that is a witness statement that you gave under oath to an attorney in the States; is that correct? A. Not an attorney, a notary public. Q. I apologise. There is one point I obviously have to correct in that and that is the part that relates to XF where your contemporaneous notes suggest that you did see XF; whereas in your witness statement to the Inquiry page 55 you said you did not. Your witness statement to the Inquiry must be understood to have been overtaken by your evidence under oath. A. I would say that my witness statement was made in all honesty at the time and that I forgot. Confronted with -- this is the same Mr Bleay who did the forgery ... was it Mr Bleay? Q. Yes, Dr Bleay. A. Yes. Confronted with his report I believe I had retracted my comments on XF before I even saw my own notes on it. There was no intent to mislead with respect to my comments on XF in the witness statement. Just to make it clear. Q. We are at crossed purposes. Other than understanding that we should strike out your XF comments in your witness statement, I have not gone through the detail of your witness statement, but are you content to say under oath that to the best of your knowledge your witness statement is, with that correction about XF, a true account? A. Yes, sir. Q. The one point which I did ask you to comment on was in relation to an allegation from Mr Swann or Mr Russell, it matters not, about the International Association of page 56 Identification (IAI) investigation, most recently in relation to Mr Swann and Mr Leadbetter and you may recollect you gave some answers in relation to that in your witness statement. Do you recollect dealing with that in your witness statement? A. I don't have a specific recollection of what I said in my witness statement but -- Q. It's okay. Mr Wertheim, what I will do is stop you there because I want to be very, very careful about this. This is now entering a chapter that you can plead the Fifth on. When I close that window I will tell you. A. Very good. Q. I put to you in questions that you did answer my understanding of the allegation but now I have it in Mr Swann's own words so I want to put to you his words and then see if you are content to adhere to the answer you have given to the Inquiry, again, with your opportunity to take the Fifth. So far as Mr Swann's allegation is concerned, if I bring it up it's FI0149.24 and 25. It is a two-page-section. The heart of it is paragraph 42, Mr Wertheim. I will give you a chance to read paragraph 42. (Pause) A. I will waive any right to the avoidance of page 57 self-incrimination. I would adamantly deny the allegations made by Mr Swann in this paragraph and I would demand a polygraph examination if such is accepted in court in Scotland. This is an outright lie. Q. Can I take you to the answer you have given me already in your witness statement to this which is FI0118.3. MR SMITH: Sir, I wonder if I could ask for clarification before this is removed. Obviously a serious allegation has been put to Mr Wertheim. I am not sure I understand what is meant by Mr Swann -- and it may be Mr Moynihan has information on this -- towards the end of paragraph 42 after reference to the complaint. The last sentence says: "The declared objective of the complainant was to bring pressure to bear upon me ..." Can I understand that it is being suggested to Mr Wertheim that he actually said somewhere that he was trying to bring pressure, effectively, to suppress evidence to the Inquiry. If that is the allegation, I think that allegation should be made absolutely clear, and where it was declared by Mr Wertheim that that was so. MR MOYNIHAN: Sir, I take entirely my learned friend's point. One of my reasons, if I can be quite candid about it, for pursuing it as a question is Mr Russell is page 58 absent from the hall and, therefore, unless I take it as it is presented here it will go without comment. That was my reason for making the point to Mr Wertheim that this is not my allegation, it has come from others. I would rather not add to what we see on the screen because I personally speaking for myself just now know no more than I can see on the screen. I accept that this question arises but I would prefer not to, myself, enter into it but simply put the point to Mr Wertheim for his comment. I have no doubt others may pursue it but I don't believe it's responsible for me to go further than I am. MR SMITH: I follow. I am quite content with that response. THE WITNESS: Mr Moynihan, with that in mind I am not backing off one iota from my previous statement but I would ask the permission of the Inquiry to go through several sub-allegations and address them each very quickly. MR MOYNIHAN: Mr Wertheim, my opening to this was you have already given us some answer to the general allegation and I was just wanting to know if that answer was one to which you would adhere and then, if you wish to answer more fully than you have already answered in your witness statement, I will obviously give you the right page 59 and the opportunity to do so. A. With the understanding that the general allegation in this is that there was a conspiracy between the McKies and myself, the Vice-President of the IAI, to plot against him and Mr Leadbetter. No such conspiracy ever existed: period. Q. I am not going to make any attempt, for reasons really that were focused by my learned friend Mr Smith's question, to paraphrase what is in paragraph 42 because if I paraphrase it I may omit some essential detail. So paragraph 42 you can come back to in any of its subordinate parts. Your existing answer to me was in FI0118.003 -- page 9. You will see that the question put to you when you were asked to prepare a statement, a question I had formulated was this: "One of the issues was in relation to the reference to the IAI. Mr Russell has alleged that this was done to influence the Inquiry outcome and could be construed as a breach of section 35 of the Inquiries Act." That is simply the section that creates an offence interfere with the Inquiry. The Inquiry team wondered if you wished to take advice on this aspect. So that was our indication you could take the Fifth. page 60 I will not read it out. You have given an answer to that paraphrasing the allegation that is now more fully stated by Mr Swann. First of all, my first question would be if what you have set out in your answer you are prepared to accept as being true under oath and then, secondly, if you wish to add to it in amplification now that we know what Mr Swann, within certain limits we know what he is saying, if you wish to add to your answer. First of all, the first question is: are you prepared to say what you have written in your answer is in fact the truth? A. It is. Q. Secondly, and I have said I will give you the opportunity, if you want to go back to Mr Swann's allegation it is FI0149.24 and 5. Mr Wertheim, I have brought it back up again. If there is anything you wish to add to what you had said in your written statement about this matter, please feel free to do so. A. I'm going to use the yellow highlighter to highlight certain parts of Mr Swann's allegation. The attempts ... I remember how this works now. (Pause) I've highlighted three areas of text and I will address each of the three separately. I don't believe I page 61 need to reference these to the preceding sentences to which they refer because those are already part of the record. The first highlighted area says: "The complaint was pursued by one of the McKies' most vocal 'expert' supporters who had also worked and campaigned closely with their lead expert, Pat Wertheim. The 'case' against me was conceived, encouraged and pursued between Iain McKie, Shirley McKie and Pat Wertheim ..." I cannot comment on whether or not the International Association for Identification was a part of any conspiracy because I know not what they do but I can comment that the word "complaint" at the first of this highlighted sentence appears to refer to the phrase "disciplinary case" in the preceding sentence and the idea expressed there is apparently that Mr McKie, with or on behalf of his daughter, Shirley, had filed a complaint against Mr Swann. If that has indeed happened, today is the first I have heard of it. I was a part of no such operation. It says here March 14th of 2008. I was unaware that Mr McKie and Shirley -- I'm highlighting additional little segments up here -- I was unaware that Mr McKie and Shirley were filing another complaint against page 62 Mr Swann. I was not a part of any such operation. I was not involved in the conception, encouragement or pursuit of any such complaint in conjunction with Iain McKie and Shirley McKie. My inclusion in that sentence is a lie. In the second area that I highlighted "was devised", and this refers to what Mr Swann refers to as a sham IAI disciplinary hearing. Mr Swann says that I was a party to devising and implementing such an operation with the Vice-President of IAI, subsequently the President of IAI. My affidavit, my statement, reflects that Mr Garrett approached me to ask what could be done. The affidavit which Mr Swann refers to here is that -- the affidavit of which Mr Swann refers to, I think was executed in September of last year. I have no independent recollection of the date of the execution of that affidavit. I was contacted by Mr Garrett after -- okay, first, he approached me when he was a Vice-President of the IAI at a conference in Boston two or three or four years ago. It was a conference which Mr Andrew Smith also attended and I was approached at that conference by Mr Garrett and asked what could be done and my response to him was that Dave Grieve and I had tried aggressively to get the IAI to do something in year '99/2000, 2001 and were unable to do so and that, page 63 therefore, I had no hopes of him accomplishing anything. He asked if there wasn't anything that could be done and I said, "Absolutely, Mr Swann and Mr Leadbetter could file a complaint against me for making an erroneous exclusion with Y7 and QI2", and I would welcome such a complaint filed against me with the IAI, because my certification and my career would end if such a complaint against me were upheld by the IAI and I would encourage such a complaint to be filed. The problem with filing such a complaint is that the person filing it would have to go on the record as taking the opposite position of me, thus anyone who filed a complaint would be subject to disciplinary action by the IAI if they were found to be wrong, just as I would be subject to disciplinary action if I were found to be wrong. Thus no-one has ever filed a complaint against me in regard to these issues. That was the conversation with Mr Garrett two or three to four years ago. Following his election as President in August one year ago, he instituted this Y7 Committee apparently -- I don't know Mr Garrett's mind -- but apparently as a continuing thread of his thought processes from the conversation we had had several years earlier. He formed the Y7 Committee as a ... I don't know if the word secret is appropriate but page 64 he formed it as a more or less confidential committee to examine the mark Y7. I believe -- this is speculation on my part -- I believe the formation of the Y7 Committee resulted from a complaint filed by Les Bush in Australia over the erroneous identification of Y7 by SCRO. I am aware that Mr Bush filed a formal complaint with the IAI some six months or a year ago. I played no part in Mr Bush's decision to file that complaint. I have not seen that complaint. I have heard of it. I believe Mr Garrett's formal basis for the formation of Y7 Committee was the complaint filed by Les Bush. I believe the formation of that Committee resulted as well from a continuing thread of concern on Mr Garrett's part dating back to the conference several years ago at which Mr Smith was present. After this Committee was formed -- and by the way the Committee was formed with no input whatsoever from me and no consultation with me and with no knowledge on my part other than I had heard a rumour that such a committee was being formed. In, I believe, September of last year I was contacted by Mr Garrett and asked if the images of QI2 and Shirley McKie's left thumb which appear on Ed German's website (www.onin.com/fp) if those images were true and correct representations of the page 65 original Y7 and Shirley McKie's fingerprint and I told Mr Garrett they were. Mr Garrett then asked me for a sworn affidavit to that fact alone, that the images on the Internet were true and accurate and I responded with an affidavit to Mr Garrett that both of those images were correct, that the image of Y7, which was posted on the Internet in 1999 or 2000, that image was scanned by Mr German directly from the negative of my photograph when I photographed Y7 in place on the doorframe. The inked impression on Mr German's website was scanned directly from an inked impression of Shirley McKie that I myself took in March of 1999 as reflected in those earlier notes. My affidavit to Mr Garrett only attested to the authenticity of the two images on Mr German's website. It was not an affidavit and expert evidence. I made no comment in that affidavit about the authenticity or the erroneous identification. To the best of my knowledge there was nothing said in that. The entire affidavit simply attested to the legitimacy of those two images. "The McKie and Wertheim team moved instantly against me", the third allegation in this. I am not a team with McKie in any endeavour against Mr Swann. This paragraph page 66 alleges some massive conspiracy of Mr McKie, Shirley McKie, myself, Bob Garrett, the entire IAI, the Y7 Committee, whoever sat on that Committee -- and I still don't know who was on that Committee -- in some immense conspiracy to attack him and Mr Leadbetter and I adamantly deny that I am a part of any such conspiracy. This is a bald faced lie. THE CHAIRMAN: I think we have got a clear position -- Mr Wertheim's position on this is absolutely clear. A. Thank you. THE CHAIRMAN: Are there any other matters you want to deal with? We have run over slightly. (Document screen saved as FI2409.09) MR MOYNIHAN: First of all, we can close that chapter. There is one other chapter, sir, I would look at very briefly this afternoon as briefly as I can. THE CHAIRMAN: I am obviously anxious about the timing. What I propose is -- we have already reduced the lunchtime. I think we had better sit again still at 1.50 and I would be available to sit rather longer this afternoon than we have done but it is the extent to which that is acceptable to everyone else. I do not want to make it more difficult but certainly I am prepared to sit on as long as -- certainly to a reasonable time. page 67 (1.10 pm) (Luncheon Adjournment) (Afternoon session) (1.50 pm) PAT ALEXANDER WERTHEIM (continued) MR MOYNIHAN: Sir, I think to the relief of all I have no more questions and the suggestion is it be Mr Holmes who cross-examines next. THE CHAIRMAN: Mr Holmes, I imagine that there are a number of questions you want to put and the normal practice would be to ask you to say what the issues are you wish to cover. Are you able to do that broadly? MR HOLMES: I can give an outline. The first issue I would like to cover is the issue of a single versus a multiple touch and that's in relation to Y7. THE CHAIRMAN: Yes. MR HOLMES: The second issue relates to Mr Wertheim's Inquiry statement. The third relates to Mr Wertheim's evidence at the trial of Ms McKie. The fourth relates to the images of Y7 that Mr Wertheim has seen. The fifth relates to the comparator exercise he was required to carry out for this Inquiry. The sixth relates to his opinion on Y7 itself. The seventh relates to his opinion on QI2. The eighth relates to XF. The ninth relates to the distribution of material relating to Y7 page 68 and the tenth relates to allegations made against the SCRO officers who identified Y7 and QI2. THE CHAIRMAN: Allegations made by ...? MR HOLMES: Mr Wertheim. THE CHAIRMAN: Yes. Very good, I will allow those. Cross-examined by MR HOLMES Q. Mr Wertheim, I will start, if I may, with this issue of a single as opposed to a multiple touch and that's in relation to Y7. A. Yes, sir. Q. The starting point, if I am correct, for your opinion on Y7 is that it is a single touch and not an multiple touch; is that correct? A. That's correct, with the slight modification that in the area I indicated (which was referred to in Shirley McKie's trial as the "blob") I find the detail unreliable and there could be some slippage or smearing in that area. Q. What is it that brought you to the conclusion that it is a single touch with a continuous ridge flow? A. In the instance of a double tap or an overlaid impression, it is virtually impossible that all of the ridges will align perfectly with no clue to the double tap or the overlay. In my career, to the best of my knowledge, I have page 69 never seen ridges align perfectly in a double tap. I have seen, I believe it would be safe to say, many thousands of examples of double taps, overlays in which the ridges crisscross, they are offset but there is always a clue to a double tap which can be discerned during the careful analysis of the latent print. In my analysis of Y7, I saw absolutely no such clues and thus concluded that Y7 is a single touch of one fingertip that represents the direct contact between the skin on a person's finger and the doorframe and then release. Q. Is it based on the premise that the ridge flow is continuous throughout the mark with the exception of this area that you have identified as the blob? A. Continuous, yes. Continuous, uninterrupted, no strong angularities, no offsetting, no overlaps, no breaks. Q. You did say on Tuesday that virtually no mark is without some distortion. Is that something with which you would agree? A. Absolutely. Q. How do you explain the presence of the fairly large area above the core if this is a single touch? A. I don't understand. Would you care to put an image up and ask me about the specific area to which you refer? Q. Could I have TS0006 up, please. Next page, please. page 70 This is the image that was submitted by Mr Kent. I think you may already have seen this during your evidence-in-chief. A. Yes. Q. The area that you identify as the core of the mark is towards the top of that image; is that correct? A. Yes. Q. There is a fairly extensive area in this photograph to the left of the core, a very large area. How do you reconcile that with the fact that this is, in your opinion, a single touch? A. Do you mean to the right of the core? Q. That's correct, yes. A. It's as I described: a series of parallel unbroken ridges. I see no disconformities; I see no ridge breaks; I see no overlaps; I see no smudging. I see an area of ridges flowing in concert without interruption. That leads me to conclude that it is uninterrupted by the presence of a double tap; therefore, I conclude that it's one single impression in that area. Q. There are some fairly dark areas throughout the mark, not just in the blob area that you have described. Again, is that something that you consider to be consistent with a single touch? A. There's a fairly large dark area here (indicated) page 71 there's a fairly large dark area here, there's four blobs right here, there's a dark area here (indicated). For the record, I'm indicating areas all through this piece of wood which have dark areas. My point is that I have no expectation that the wood between the dark areas I've indicated is blemish-free. Therefore, I would expect to see dark areas within the print that are completely unrelated to the print, as are the dark areas that I've circled round the border of the print. I have no problem with darker areas in that print. I think they have little or nothing to do with the print itself. Q. Do you see the area to the immediate right of the lower left-hand circle that you have drawn there? A. Repeat the position again. Let me see if I can make sure I'm looking at the same spot. Q. There is an area to the immediate right of the lower left-hand circle that you have drawn? A. To the immediate left of this (indicated)? Q. To the immediate right. A. Are you referring to this area (indicated)? Q. No, above that. A. Above that. I'm afraid I will have to ask you then to mark it yourself. Q. If I can show you with the cursor there is an area to the immediate right of the lower left-hand circle that page 72 you have drawn and it goes around what would be the bottom of the mark if you were looking at it as it is on the door standard to the top left-hand circle that you've drawn. Is that shape consistent with this being a single touch? A. In my opinion, yes. Q. Does it not bulge out beyond the boundaries of what a thumb would normally look like? A. I used the analogy earlier in the week of a football deflating, being pressed against the wall and distorting and leaving an impression. The tip of a finger is a complex spheroidal shape. It is not a firm, hard shape. When pressed against a flat surface, you will get bulging. In most cases, you will get a smooth oval shape without concave or extraordinarily convex lines along the peripheral margin of the print. But I see nothing in this print to support the belief that the shape, in any way, indicates anything out of the ordinary with regard to a normal touching. Q. Why then does this area at the bottom of the mark bulge beyond the boundaries of the top of the mark? A. I don't see that it does. Would you please draw a line and show me what you're talking about? If you would rather I might suggest you let me draw a line around it page 73 and you tell me what part of the line you don't like; it's your choice. Q. If you want to give it a try, Mr Wertheim, please go ahead. A. All right then. What I am going to do then is I am going to cut this. I appreciate it's Mr Holmes, isn't it? THE CHAIRMAN: Yes, Mr Holmes. A. The name tag is on the wrong spot so you will have to forgive me. I can appreciate that I've grown somewhat more adept at the use of this tool in the last several days than you might be at the initial start. I've enlarged the area which includes Y7 and the five yellow circles that I set to illustrate dark spots outside. I'm going to choose my magenta line tool and I'm going to trace roughly the outline of this print and then when I'm finished, I'd be glad to entertain any ... (indicated) Now, for your reference, Mr Holmes, if you wish to compare this on my phase 1 chart of Y7 you will find a yellow outline on Shirley McKie's inked fingerprint which represents the outline of the area in Y7. So if you have access to my phase 1 chart and Shirley McKie's print I would invite some discussion on whether the shape I have just traced on the screen corresponds to page 74 the shape in that presentation. For purposes here I think I might try to rotate this to an upright position as seen to the eye of the fingerprint examiner. Could you, please, rotate it for me because I'm not sure that I know what I'm doing? There we go, we've lost the cut. I'll recut the thing then. You going to cut it for me? Perfect, thank you. MR HOLMES: You have drawn a line round this mark and it would appear to me that at the bottom of the mark there is a significantly wider area than there is at the top. Is that not correct? A. If I'm not correct the bottom of the thumb is wider than the top of the thumb. I see nothing in there that causes me to reconsider my opinion that this is a single tap. Q. Is it not possible this could be made up of two ovals, one pointing north to south and one pointing east to west within that mark? A. No. In my opinion, that is utterly impossible. Q. How many ridges would you say there are above the core in this mark? A. Well, I haven't counted them but let's do so. I'm going to put a little green hash mark rather than try to trace page 75 the entire ridge. First up I will put a red circle to indicate the area that I see as the core. The direct core is somewhere in the area or proximity of the red circle that I've drawn. (Indicated) Now I'm going to go to my green hash marks and we will work our way up to the tip: 1, 2, 3, 4, 5, I believe we've got 6 right there, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24. We may have some colour reversal. For the record I'm going through the blob right now, the area I highlighted as unreliable. 25, 26, 27. Now we're back on clear ridges. 28, 29, 30, 31, 32, 33, 34, 35. So my count is 35. I will state that that is not an absolute number. If you were to do a ridge count on a line to either side of that -- I'm drawing a blue line from the core straight up through those ridges to the top and I've tried to keep it straight when I was doing the green. Perhaps I should have put the blue line first. If you were to take a line 10 degrees to either side of the one I've drawn (indicated), the ridge count will vary because of ridge endings and bifurcations that occur within that cone or that angle that I've defined by the two outside blue lines. So the number 35 is an approximate count but I think it is reasonably accurate. Q. How many ridges, would you ordinarily expect to be page 76 visible on an impression that you come across above the core? A. I've never counted them. It has no bearing on the identification. I've seen latent prints with no ridges above the core, everything below the core. I've seen other latent prints that will run from the core all the way up to the nail itself and have a greater ridge count than this. There is nothing in the number 35, the number 30, the number 20, the number 40 or the number 50 that would indicate that there are any issues here. Q. On inked impression how many ridges above the core would you normally expect to be visible? A. I have never in my career known a fingerprint examiner to count the ridges from the core to the tip of a finger. Ridge count in the sense of inked prints is done between the deltas and the core. But, if you like, let's put Shirley McKie's inked fingerprint up there -- we happen to have one -- and count the ridges from the core to the tip of that. Q. Perhaps later, Mr Wertheim. My question really is with this number of ridges above the core, how far round do you think this fingerprint represents towards the nail of the person who deposited it? A. I will make a very rough guess. Some people might criticise me for even speculating on this issue because page 77 there is no clear indication, but based on my training and experience I would say the nail would subscribe an arc possibly in the location I've shown in red (indicated). That is subject to interpretation. The nail may subscribe an arc in the area I'm drawing inside the first line or it may subscribe an arc in the area outside the first line ... let's try that one again. There may be a nail arc up where I've drawn the top red line now. It could be anywhere in that range. Q. So is it possible for you to say, looking at this mark, how near the tip of the finger that last ridge at the top would be? A. I'm sorry? Q. Is it possible for you to say, upon looking at this mark, how near the tip of the finger that last ridge that is visible at the top would be? A. How near in what respect, please, Mr Holmes? Do you mean how near in physical inches or millimetres or how near in ridge count? Q. How near in a physical distance? A. Well, we don't have a scale here to tell us what the physical distance is. I don't know. Q. Perhaps by comparison to the remainder of the thumb then. A. Well, we don't have the remainder of the thumb. The page 78 remainder of the thumb is somewhere down off the bottom of this screen. Q. What you have is what you have marked on there, the core, and a fairly significant number of ridges above it. Is that correct? A. You will have to put the word "significant" -- or the phrase "significant number of ridges" in context. It's significant if you are considering ten ridges it's insignificant if you are considering 100. We've got 35 ridges. There's nothing remarkable about that. In relation to the bottom of the print and the tip of the nail, if I can demonstrate on my own thumb, some people will have a core in the very middle of the pad. Some people will have a core lower, closer to the knuckle. Some people will have a core higher towards the tip. There's nothing in this print that allows us to make any determination regarding the position of the core in relation to either the nail or the knuckle. Q. Is there anything about the position of the core on this mark that allows you to -- I won't say determine but to tell anything about the way in which the mark was deposited? A. The mark was deposited with the centre core area at the lower dimension of the touch, with the touch encompassing an area of skin above the core and to the page 79 right of the core. What that means -- and I will attempt to demonstrate as I hold up the tablet -- is the thumb was not pressed flat as I am now demonstrating with my thumb (indicated). The thumb was rolled slightly to the tip and it was canted slightly to the right. So you have an impression in roughly that position (indicated). Can you see sir? THE CHAIRMAN: Yes, I can see, thank you. A. Mr Holmes, can you see what I'm demonstrating here? MR HOLMES: Yes, thank you. A. I might comment because some issues have been raised criticising me for the fact that I took so many inked prints from Shirley McKie but when comparing fingerprints the best possible results will accrue when one compares like to like. Therefore, the tip of the finger when deposited in that manner (indicated) will not be recorded on rolled fingerprints nor will it be recorded on a normal plain impression such as used in the SCRO productions and such as we used in the Y7 productions for purposes of this Inquiry. That was a plain impression taken at the bottom which did not include the inked print at the tip. Therefore, when I took the inked prints from Shirley McKie, I had an ink pad and I had a virtually unlimited page 80 supply of paper. Therefore, I kept pressing the thumb, trying to duplicate direction, pressure and rotation of touch in order to achieve an inked print that represented the same area of friction skin, the same direction, the same rotation along the axis of the thumb and the same upward cant that is represented in this inked print. Q. So for the print to be deposited in the way that you have concluded, what would have to happen is for the thumb to be rolled upwards towards the tip and to the right; is that correct? A. That's correct. Q. Is that an unnatural way for someone to deposit a fingerprint? A. I am not an expert in the natural way somebody touches a doorframe at 4 feet 10 inches off the ground. I would say I see nothing unnatural in walking by a doorframe and touching with your thumb aimed slightly upwards and possibly canted to one side. I see nothing unnatural in that. Q. Individuals who take inked printed impressions from donors have to be trained in how to do that, do they not? They have to be trained in how to roll the thumb and roll the fingers so as to get a clear impression. Is that correct? page 81 A. I'm having trouble with the accent. I sincerely apologise. Did you say door knobs? Q. Donors? A. My apologies. I was distracted so, please, repeat the question. Q. Individuals, police officers and the like, who take inked impressions from donors have to be trained how to do that, do they not? They have to be trained how to roll an individual's finger so as to get clear mark on the fingerprint form? A. That is correct, yes, sir. Q. Do you not then consider it unlikely that an individual leaving a chance impression would roll their thumb towards the tip of the thumb and to the right leaving an absolutely clear impression with a clear ridge flow? A. That's correct. I've never seen it. Criminals don't roll their fingerprints at the scene of a crime. Q. But still the interpretation that you prefer is that this is a single touch and that it was deposited in that way? A. Yes. Now let me comment on your question regarding the way police officers are trained to take inked fingerprints. The purposes of taking inked fingerprints on a fingerprint form are primarily for the classification and filing of those fingerprints in page 82 criminal history records. They are taken to include the largest area of friction ridge skin and document that area of skin. They cannot be taken to include every area of friction skin. But the primary purpose of taking inked fingerprints on a fingerprint form would be for criminal history purposes so that the fingerprints may be classified and filed by a classification formula, even though we now use AFIS, and so that a majority of the friction ridge skin is recorded. In the vast, vast majority of cases inked fingerprints taken in that fashion are taken prior to the development of latent prints for comparison. A fingerprint expert -- not a jailer taking inked prints for a criminal history records file, but a fingerprint expert taking inked prints specifically for comparison purpose with a latent print that has already been developed -- will try to duplicate the area of friction skin and the direction and pressure of touch so he's comparing best possible inked print to the latent print that he has to work with. Q. You will be aware that a number of Core Participants were asked to provide opinions concerning Y7 and QI2 to the Inquiry. A. Yes. Q. And the SCRO contributors are of the view that this is page 83 more than one touch. Are they wrong? A. They are. Q. You will be aware that Mr Swann considers this to be more than one touch. Is he wrong? A. He is. If that's his position, he is but let me ask you as well, Mr Holmes, because in reference to your immediately previous question a number of SCRO experts have represented the opinion that this is more than one touch, is that your ...? Q. I am speaking about my clients when I say that. A. Okay. I beg your pardon because I don't know who your clients are specifically by name but it was my understanding that there were SCRO experts who had agreed that Y7 is a single touch. So if I'm wrong in that belief, I apologise. Q. We've certainly heard no evidence of that, Mr Wertheim, and the nine officers that I represent all consider it to be more than one touch. A. Very good, I stand corrected. Q. Are these officers wrong in their opinion? A. They are. Q. Mr Swann, Mr Leadbetter, they are wrong in their opinion; is that correct? A. They are. Q. Mr Berry and Mr Graham are you aware of what their page 84 opinion is on whether it was a single or double touch? A. No. Q. If they are of the view that it is more than a single touch, again are they wrong? A. They are. Q. Mr McLeod, who agrees with you on the identification or the lack of an identification of Y7, states in his contribution to the comparative exercise that Y7 is most likely the result of a multiple touch with some rotation. Is he wrong? A. I would have to know what you mean by multiple touch with some rotation. It is possible that when the finger contacted the surface during the contact it may have moved up and rotated to the side. So there may have been some movement of the finger during the deposition of Y7, but it was a single act of touch and release regardless of whether some rolling either from core to tip or side to side. THE CHAIRMAN: This is one of the things I was going to ask you and I just want to get it clear now. When you say about a single touch, it can either, as I understand it, it can either mean that the person's finger has touched and been lifted and touched again, or can it mean that the first physical contact has continued but has changed position? page 85 A. Yes, sir. If the finger touches, lifts and touches again, that is what we would refer to as a double tap. We might call it an overlay, we might call it two touches and that did not happen in this case and I would not refer to that as a single touch. A single touch can mean or can include an impression in which the finger touched and then rotated before it being lifted. That has to be considered a single touch. If that were not a single touch, no rolled impression taken in the history of the world is a single touch because every rolled impression taken on an inked print form is put with the thumb on one side, rolled across to the other side and lifted and we consider inked prints -- I'm glad, you find it funny, thank you -- we consider inked prints rolled impressions to be single touches and in that sense this is a single touch. THE CHAIRMAN: I just wanted to get it clear in my own mind. Are you not ruling out the possibility that there has been that type of movement that you have just described with the finger remaining in contact? A. Oh no. I would not rule that out at all, sir, and I apologise to the Inquiry if I left the impression in the past three days that I was denying that movement occurred. I'm denying that a double tap or that a discontinuous impression was left and I'm also denying page 86 that twisting and smudging occurred. There may have been some slight rolling either side to side or there may have been some rolling centre to tip and that rolling may have been diagonal, from core diagonally towards the tip. So there may have been movement, but this mark represents a single contact, possibly accompanied by some movement, and then removal. THE CHAIRMAN: It is just I want it to be clear what terms are being used. MR HOLMES: I am taking it that when Mr McLeod says multiple touch he refers to the former situation where the finger is lifted and then deposited again. If I am wrong in that, no doubt he will correct me. If his opinion is that this is a multiple touch, then you're saying that he is wrong. Am I correct in that? A. If Mr McLeod states that this fingerprint represents two discontinuous touches of the skin, then he is wrong in that assessment. Q. Mr Kent has also given evidence and he has also said that this is as a result of more than one touch. Do you disagree with that? A. I absolutely disagree with that because Mr Kent based his conclusion in part on the fact that the ridges at the top of this mark are thick and far apart and the page 87 ridges at the bottom are thin and close together and using an inked printed impression taken by the Met and presented in their chart that was presented to us, the participants, we saw exactly that same ridge structure in that inked print, perfectly consistent with what we see here. Q. Mr Kent gave evidence that your approach (that is to say, outlining a continuous ridge flow within this mark. For those using LiveNote it's on day 19) Mr Kent gave evidence that that approach was, as he described it, simplistic and potentially misleading to a lay jury. Can I take it you would disagree with that? A. Mr Kent is a brilliant chemist. Mr Kent is not a trained fingerprint expert. Mr Kent is not an experienced fingerprint expert. I would find any such statement to be outside the realm of Mr Kent's expertise but further I disagree with the statement on its own merits. Q. On Tuesday you cited Mr Ashbaugh as the source of some authority on how to spot a double touch. Would you agree with that? A. Yes, I would. Q. Mr Ashbaugh wrote an e-mail in 2000, I think the number is CO1752. It is on page 5? MISS BAHRAMI: Would you like to save this image? page 88 MR HOLMES: Yes, please. MISS BAHRAMI: FI2409.10. MR HOLMES: CO1752. It is on page 5 of the document, it may be page 6 of the PDF. Can you move on a page again, please, and again. THE CHAIRMAN: Do you want to go back? A. For the record I would like to state that I have heard of the existence of this e-mail but I have never seen it before. (Pause) MR HOLMES: Apologies, Mr Wertheim, I think we now have the correct page. If you look down to the fourth paragraph on that page it says: "The photograph of the fingerprint chart was of very poor quality. It had 16 lines drawn into the mark but I basically ignored it." That's the paragraph that I am looking at. A. Very good. My screen is very faint, broken up. Is that true of everybody's screen? Q. The document is not good. He goes on to say: "I carried out a brief analysis of the crime scene mark. Under normal circumstances a mark of this nature may require an hour or more to analyse the various ridge paths as the mark was at least a double tap, if not a triple tap." Again, Mr Wertheim, my question is: is Mr Ashbaugh page 89 wrong about this being a double or even a triple touch as opposed to a single touch with continuous ridge flow? A. Yes, Mr Ashbaugh is. If that's Mr Ashbaugh's position, I would love very much to hear his explanation why he believes it to be so because I do not see it that way whatsoever. I would add that I have taken two or three courses under with Mr Ashbaugh. I have studied all of the red flags and Mr Ashbaugh coined the use of the term "red flags" specifically in the analysis of a fingerprint -- of a latent print, the analysis phase of the latent print. Mr Ashbaugh coined the term "red flags" to indicate features which he saw that were an indication of a double or triple tap or other problems in the print. The features defined by Mr Ashbaugh in the courses I took under him included an angularity of the ridges where they meet. It included ridges that didn't join evenly. It included bulges in the ridges along a certain line within the fingerprint. It included overlapping ridges along a margin or a line through a fingerprint. It included spurs on the edges of a significant number of ridges in line with each other. I see none of those clues that I was ever instructed in any of Mr Ashbaugh's class present in Y7: none. page 90 Therefore, I would say that unless Mr Ashbaugh has discovered brand new red flags that he did not include in any of his courses, there are no such clues in Y7, there is nothing in Y7 which, in my experience, indicates a double tap. I followed the analysis procedure enunciated by Mr Ashbaugh in which he says, "may require an hour or more to analyse the various ridge paths", because, as was seen in the presentation I used at Shirley McKie's trial I traced every single ridge path in that mark from the core all the way up to very tip, all of the ridges that we counted, which might be a good exercise for you to go through and look at that exhibit later and see if the number of ridges that I've drawn in that deviates significantly from the number of ridges I counted for you a minute ago. But my point is I followed the accepted methodology, I followed the training that I have received from Mr Ashbaugh and any other expert that I've attended classes with, I followed my experience, 36 years, and I recognise that some of the SCRO experts have more than that, but I still maintain that there is nothing in this print to indicate a double tap and I would like very much for Mr Ashbaugh to demonstrate to me what he sees that leads him to that conclusion because I don't see page 91 it. Q. On this occasion you are willing to differ from him? A. Absolutely. Q. I will move on just briefly to the topic of your Inquiry statement. The first paragraph of that statement says that you were approached in December 1998 by telephone by Mr McKie and that you thereafter say, as at March 1999, when you came to examine Y7 you had no further conversations with the McKies. Is that correct? A. To the best of my recollection, that is correct. After that initial contact from Mr McKie, I asked him to have his attorney contact me. You'll appreciate that in the United States the distinction between solicitor and -- THE CHAIRMAN: Oh, yes, I am familiar with that, thank you. A. I was contacted shortly thereafter by Angela McCracken and virtually all of the communication, all the arrangements that were made, were done between myself and Ms McCracken. MR HOLMES: You will at some point, of course, have had contact with Ms McKie herself because you took inked impressions from her. Is that correct? A. Oh, it's in my notes. Off the top of my head I don't remember the exact date and time. THE CHAIRMAN: We have those. MR HOLMES: How many impressions did you take? page 92 A. Boy, I don't know the answer, Mr Holmes. If I had had any idea that it would become controversial I would have counted them. THE CHAIRMAN: I thought you did give us some figure between 100 and 150. A. I've on various occasions I have said 100/150. It's something in excess of 100, I'm sure. I had Miss McCracken arrange for me different styles of paper. I had her arrange for me the cheap copy paper that they used, I had her arrange for me the expensive stationery they use and don't mean one sheet of each I mean an unlimited supply, as much as I wanted. I had her arrange for me the tractor feed style computer printer paper that they use. When I was printing Ms McKie, if I can stand and demonstrate, I had her standing to my right, I had the ink pad and I had -- there was a table, possibly slightly higher than this but maybe not, and I had my ink pad and I had all of the various papers and I would press her thumb over and over and over (indicated). I began with a complete set of rolled impressions taken in the fashion of a jailer fingerprinting a suspect being booked into gaol. Those were the rolled impressions and the plain impressions. I began that way. But because the allegation was that it was McKie's page 93 left thumb, following the taking of all ten fingers one time, then I proceeded to take just her left thumb. Because her left thumb was on my right side it was easier for me to just hold her thumb out and press the ink, press the paper, yeah right, it needs to be a little higher, press the paper, right, it needs to be a little more to the left now and I just went over and over and over and I repeated the process for two or three sheets of paper of each kind completely filling at least one edge of the paper with print after print after print. So I had at my disposal three or four different types of paper and I filled, to the best of my recollection, two or three sheets of each kind of paper with numerous inked impressions. Now the reason I did that is because, as I've stated, I want to compare like to like. I wanted to duplicate as exactly as I could the direction and pressure and rotation around the axis of the thumb sideways and I'm not talking about a rolled impression I'm talking about whether the thumb was canted to one side when I touched. So I took prints over and over and over trying to reproduce that. If you were to put it to me that the number of prints that I took was only 50, I would say I can't page 94 disprove that. To the best of my recollection it was 100 to 150. THE CHAIRMAN: I think maybe what you are being asked is you took a large number. A. I took a large number. MR HOLMES: Whatever figure you gave yesterday or previously the answer is, I take it, you are not sure how many you took, is that -- A. They are all wild guesses and approximations. They are not intended to mislead. Q. Were you made aware by Ms McKie or by her solicitors or anyone that you had contact with in the course of this case that the mark Y7 had previously been examined by another expert? A. Mr Swann himself told me that before I ever came to Glasgow. At the Fingerprint Society lectures in 1999, I was making a presentation and the week following the lectures I was due to come to Scotland and look at the prints here in Glasgow. So the week prior to my visit to Glasgow I was at the Fingerprint Society lectures. Mr Swann, who I barely knew at the time, approached me in the hall, between the lobby of the hotel and the main lecture hall, and I remember the moment clearly because I thought it highly improper. He approached me, introduced himself and said, "I understand you're an page 95 expert who's going to Scotland to look at the McKie case", and I was slightly taken aback and I said, "Yes, I am". And he said, "Well, I've already looked at that case and I can assure you the fingerprint is not forged and it is Ms McKie's print. There can be no doubt of that". And that final clause, "there can be no doubt of that", burned itself into my mind because I thought why in God's name is this man telling me this, knowing that I'm an expert going to examine that print? Is he trying to influence me? I found the whole conversation uncomfortable and improper and at least a borderline breach of ethics on Mr Swann's part if he had viewed the print previously to approach me like that before I'd ever examined it, to tell me what his conclusions were and what conclusions I should reach. So, no, I did not hear that from Mr McKie or Shirley McKie or Angela McCracken. I heard that direct from the mouth of Peter Swann before I came to Glasgow. Q. Is it something you discussed with anyone else before you gave evidence? A. I believe I may have mentioned it to Angela McCracken or Donald Findlay. I have no direct recollection of a conversation involving that, although I cannot believe page 96 that something that significant would have gone unmentioned. I did not note that. I'm not aware whether Ms McCracken or Mr Findlay made note of it. Q. Did you express any view when Mr Swann approached you as to whether the mark was a good identification or not? A. When Mr Swann approached me I hadn't seen the mark. I had no opinion of anything. Q. When you did come to view the mark, you say in your statement to this Inquiry that within a few moments you had serious doubts about the accuracy of the identification. Is that tantamount to saying that you knew that it was not or Y7 had not been deposited by Shirley McKie? A. If I showed you a blurred, out-of-focus picture of Mike Tyson and a blurred out-of-focus picture of Madonna how long is it going to take you to realise they are not the same person? I stand firmly by my statement that it was a matter of some seconds, measured not in many minutes, that I realised it was an erroneous identification and as I stated, I believe on Tuesday, as soon as I reached that realisation I put the SCRO materials aside because I wanted to proceed with a very careful analysis of the latent print before I went to the inked print and then I wanted to look at my own inked prints of Ms McKie. So, yes, it was a matter of seconds when I saw the page 97 two prints, Y7 and Shirley McKie's print on the charted enlargements at the Procurator Fiscals' Office here in Glasgow, that I realised this was an erroneous identification. Q. That's my question because your statement says that within moments you had serious doubts but it's not that you had your doubts you knew at that point that this was, in your opinion, an erroneous identification. Is that correct? A. Both statements are correct because every human being is subject to self-doubt when he sees in front of him the impossible and, as a fingerprint expert, to me the thought that the SCRO could make a mistake and chart 16 points was the impossible. So the human response of self-doubt was what compelled me then to close those productions and say, right, I have to have an original image of the inked print taken by myself so I know it's Shirley McKie's left thumb, and not some other finger from her or another person, and I have to have some crisp, clear, clean photographs of the mark and I want to work through the proper analysis and comparison and evaluation and reach my own conclusion. In other words, what I'm saying is both statements are correct, Mr Holmes. I knew it was a bad identification but the human emotion of self-doubt page 98 compelled me to act in the way I did after that. This is the gut-wrenching effect that I referred to earlier which the newspapers seem to have keyed in on as the only thing worthy of reporting from Tuesday's session. Q. You have quantified these moments in the past in interviews you have given as 60 or 90 seconds. I take it you wouldn't disagree with that now? A. I didn't have a stop watch. I'd say, yes, 60 seconds. If you were to tell me it was 30 seconds or 120 seconds because you were there with a stop watch, I'd say okay. Q. My question is if you were carrying out an ACE-V analysis as you have described in your evidence so far, would you even have looked at the known print within 60 or 90 seconds? A. Oh no. No, that's why as soon as I had looked at that chart and had that feeling, I closed the chart and I said, right, I've got to back off and do this correctly. If I'm to challenge the British fingerprint profession with the first erroneous identification in the history of 100 years of fingerprints in Great Britain I have to do this right. Q. By that stage you had already seen both impressions. Is that not correct? A. Well, it was a little late to unsee the inked impression in the chart. page 99 Q. On that basis the analysis or the examination that you carried out of Y7 was not, strictly speaking, an ACE-V analysis, was it? A. It was an ACE-V analysis but it was accompanied by that initial glance. But I scrupulously followed ACE-V and I scrupulously documented it in my notes. My notes will reflect the analysis I did. Q. You said on Tuesday that what you do when you carry out your analysis is to assess the mark, you take in the number of details you would expect to see in the known print and you, at that stage, form an opinion as to what your level of tolerance might be, that kind of thing. That's not what you were doing when you were looking at both the marked enlargement of the inked print and the marked enlargement of Y7, was it? A. No, it wasn't. Q. Again, this may be superfluous but you state in a letter, 4th February 2000, addressed to Lord Hardy that you glanced at Ms McKie's fingerprints and discovered much to your shock that the mark was not her print at all. Again, are you content with the fact that this was a glance? A. Yes. Let me go back to my earlier analogy, Mr Holmes. If I give you an out-of-focus photograph of Mike Tyson page 100 and an out-of-focus photograph of Madonna and you take a glance at them and you say that's not the same person and you put them away, then the doubt that's going to creep in and the thought that's going to occur to you during the night is, well, you know, those images were out of focus and there were 16 points, they each had two eyes, two ears, too nostrils, a chin, two cheeks, a forehead, a nose. I've got 16 points maybe the exposure was wrong on one of the photographs, maybe it was Madonna with a dark tan in one of the photographs and so self-doubt will creep in and you say, okay, before I judge the two photographs I saw yesterday, I want to take two photographs myself that are in focus and I'm going to look at them really close to make sure I'm right, but you still know you're right. Mike Tyson and Madonna are not the same person. Y7 and Shirley McKie's left thumb are not the same fingerprint. Q. It's that obvious? A. To any true expert it is that obvious. I don't know how many thousands of fingerprint experts around the world have seen this mark. Perhaps you could do the survey but I know the number who have seen it and disagreed with the identification is overwhelming and the number who have seen it and agree with it could be put on one bus. page 101 Q. There are still fingerprint experts who are arguing this some ten years or more later. If it is that obvious why are we having this argument, Mr Wertheim? A. Because I think all of those arguing are in this room, with the exception of Mr Leadbetter, Mr Swann and Mr Berry. The number who are maintaining that it is correct is a very small number. Q. You mentioned in your statement that you gave images of Y7 and of Ms McKie's fingerprint to Mr Grieve and Mr Ashbaugh. Why? A. The V part of ACE-V is "verification". In that regard, as I testified on Tuesday, blind verification is the strongest form of verification that exists. I made the statement on Tuesday that blind verification is virtually impossible to achieve unless you have a very large number of examiners so that it can be taken from one and given to another without any knowledge. This opportunity was perfect for blind verification because I had been contacted by Iain McKie and had a complete discussion with Angela McCracken regarding the issue of fingerprint forgery. I was deemed to be an expert in fingerprint forgery because I conducted extensive research into forgery in 1992, '93, '94 and published a paper on the topic in 1994 that is still considered probably one of the leading resources for page 102 fingerprint forgery in the world today. I believe Mr Kent referred to my paper when he did the analysis of mark Y7 for forgery. The point is both Mr Grieve and Mr Ashbaugh believed that I was only looking at Y7 for the single issue of whether the print was forged. There was no thought whatsoever that it was an erroneous identification. Therefore, I believe it was on the Friday of that week, I had been to Glasgow, I had returned to Edinburgh, I had not talked to Mr Grieve or Mr Ashbaugh at all, I returned to Glasgow then and obtained from Ms McCracken additional photographs of Y7 on a one-to-one scale. In other words, actual size. In two envelopes, I placed a photograph of Y7 and a sheet of paper on which I had taken Shirley McKie's original inked prints so that each envelope contained both original photographs made using SCRO negatives ... let me re-track that because I can't say I'm absolutely certain of that. They may have been photographs taken using my own camera and my own negatives but I believe at that point I was still using photographs made from the SCRO negative. Each envelope contained a photograph of Y7, a sheet of inked prints taken in the correct direction and pressure and orientation, and I believe at that point I page 103 had also obtained from Ms McCracken some extra photocopies of the charted enlargements which I put in the envelopes. That night when I returned to Edinburgh, it was late in the day and I was to meet Mr Ashbaugh and Mr Grieve down in the lounge of the hotel prior to going out to have dinner together. When I met them in the lounge, I had consciously planned this in my own mind to assure that I offered them no insight whatsoever into my conclusion. When we met in the lounge, we sat, we had a drink and we're talking and when nobody was listening I leaned forward and I said to them, as I recall -- I'll try to repeat the words exactly, although I can't swear to the exactness of it, I looked at both of them and I said, "I need you both to do me a big favour". And they both said, "Sure, Pat". I said, "No, a really big favour", and they paused for a second and said, "All right", and I reached into my pocket and I removed the two envelopes and they were sealed. I had sealed the gum flap on them. I handed one to Mr Ashbaugh and one to Mr Grieve and I said, "In these envelopes you will find some fingerprints. I want you to do a thorough examination and talk to a lawyer next Sunday". I had talked to Donald Findlay and he had agreed page 104 that Sunday, although inconvenient, would be possible for him to talk to Mr Grieve and Mr Ashbaugh. They both accepted the envelopes and said, "All right", and then before they could say anything else I said, "Fine, let's go get supper", and I stood up. I wanted to make it absolutely clear to them that there was going to be absolutely no discussion of those fingerprints whatsoever, that they were to look at the contents of those envelopes knowing only that there were fingerprints in them and that they were requested to do an examination and talk to the lawyer two days later. Those are the circumstances I think perhaps not exactly but very, very accurately reflecting the circumstances under which I handed those fingerprints to Mr Grieve and Mr Ashbaugh. Q. At the time neither of them were instructed in Ms McKie's defence; is that correct? A. No, they were not. At that point, they both thought they were looking at fingerprint forgery because that's what I had talked about earlier in the week. They had not talked to Mr McKie, nor Shirley McKie, nor Mr Angela McCracken. They had not been instructed. When I sat down I did not even name Donald Findlay. I said, "talk to a lawyer on Sunday". Q. Mr Grieve did carry out a comparison; Mr Ashbaugh did page 105 not. Is that correct? A. I think that's inaccurate. Mr Grieve stayed in Edinburgh. Mr Ashbaugh had left Scotland before breakfast the next morning. Q. To your knowledge did Mr Grieve carry out a comparison? A. Yes. Q. To your knowledge did Mr Ashbaugh carry out a comparison? A. Yes. Q. Do you know when Mr Ashbaugh carried out a comparison? A. I would presume that night because he was scheduled to stay with us in Scotland for a couple more days. I have never discussed the case in any great detail with Mr Ashbaugh. Q. Can I be clear: by the time that you had given them the photographs, had you seen the original door standard or had you only seen the photographs? A. Oh, yes, yes. As my notes will reflect, I received the doorframe itself on the very first visit to Glasgow. The dates are in my notes but, yes, I had seen the actual doorframe itself some two or three days before I gave those photographs to Mr Grieve and Mr Ashbaugh. Q. In some of the text of your report you refer to a possible smear line in Y7. Can I be clear: are you referring to the fault line in the mark or are you page 106 referring to what you have described yourself as a possible brush mark? A. I'm referring to that -- we could call it a brush mark, we can call it -- you could call it a smear running through the ridges. I've been criticised heavily for it. I believe on one of the documents -- no, I did not. Did I highlight in yellow on a fingerprint that mark through the document? My notes show it clearly. If my notes are available we can put the page up. I referred to that. There is no consistent word used throughout the last decade in the record referring to that mark but I believe we're talking about the same thing. Q. I am just asking are you referring to the fault line that is in the mark itself between, as I would have it, the two portions of the mark or are you referring to the damage of whatever sort that has been caused to the mark? A. With all due respect, Mr Holmes, to me the term fault line refers to a geological feature and I am not aware of the use of that word in any fingerprint textbook. It may be used informally between a couple of examiners as a descriptive method to describe something to each other during a consultation, but if you can put the image up and show me what you mean by "fault line" I'll gladly page 107 answer your question. Q. What I am asking about is what you refer to in your statement as a possible "smear line" within Y7 and I'm asking if that is a feature of the mark or if that is the damage that has been referred to previously? A. That would refer to the damage that was present on Y7 when I received the doorframe, the damage on Y7 itself. We've seen it in some of the earlier images. It is recorded in my notes as I saw it on the very first examination or I should say on the first thorough analysis. It is an artefact of damage introduced by something rubbing across the doorframe after the powder had been applied to the print. I have seen within the last few days a photograph with a piece of string wrapped around the doorframe and it was suggested to me that this piece of string might have resulted in that damage and I would say, yes, a piece of string could have caused that damage. There are any other number of things that might have caused that damage. It was present on the doorframe at the first instant that I observed the doorframe. Q. In fact, you say in your statement at page 5 that one slight brush mark does show across the face of the latent being photographed by the police. Would you accept that that's what your position is? page 108 A. Could you repeat the last line? Q. "... one slight brush mark does show across the face of the latent being photographed by the police." A. Yes, I stand by that completely. One slight smear mark does show in the photograph ... can we put that paragraph in context? Do I have my statement here in front of me? I want to make sure that we're not referring to the blob, that we are referring to the same smear mark in the print. Okay, I have here my statement now. Which paragraph? Q. It is on page 5. MR MOYNIHAN: Sir, are we talking about Mr Wertheim's Inquiry statement? THE CHAIRMAN: No, I was suggesting if we could put up a photograph of it, it might help but there is no need if you can deal with it your own way. I thought if we were going to run on we would take the break a bit later; so we will do that about 3.30. (Pause) MR HOLMES: I think I can shortcircuit this matter by simply saying the brush mark cannot have been there at the time the mark was photographed by the police. Is that correct? A. That's correct. Q. Because in the photographs that were taken by the police page 109 it is not present. A. That's correct. Q. There are some photographs that I would like to show you, if you would not mind, that were taken by you. There is a package of photographs that the Inquiry has that were submitted by you, all of them of Y7. (Handed) A. Right. Q. You can see there are quite a large number of photographs there in the package that was submitted by yourself to the Inquiry. All of these are of Y7. Do some of those photographs show the damage and some others not? A. Well, let me say that some of these are photographs that I took of the SCRO photograph. They are not all original photographs of Y7 itself. I photographed the SCRO photograph that I was provided numerous times as well as photographing Y7 numerous times. Q. I see. Is it the position then that the photographs which do not show any damage are photographs taken by you of the photograph itself and the photographs taken which do show damage are photographs taken by you of the doorframe? A. Yes, sir, and if I can explain the difference in these photographs, you'll find that some of them have a ruler in them, as this one does (indicated) because I laid a page 110 ruler down on top of SCRO photograph when I took it. The photographs that do not have a ruler, such as this one (indicated), are the ones that I took of the original Y7. Why then would I not include a ruler? Because I did not want to lay anything on that surface that could cause any damage to it. Q. If I can move on from this topic to your evidence during the trial of Ms McKie, you mentioned yesterday that you agreed with around four or five of the points that were marked by the SCRO officers during your evidence at the trial. Is that correct? A. Yes, I believe that's true. Q. You also said that given the different purposes of the trial and of this Inquiry, you now do not agree with all of the points that you did at the trial. Is that correct? A. That's correct. My position has changed based on the intent of the proceeding in which I'm testifying. Q. You said that you conceded these points at the time but that you were not really agreeing with them. Is that what your position is? A. I said that I conceded to them. I believe there's a subtle difference. Q. So when you say that you "conceded to them", you did not regard them as points in sequence and agreement but for page 111 the purposes of the trial, you were prepared to agree that the SCRO interpretation of them was correct? A. I was prepared to concede that the SCRO interpretation of them was correct. Q. The reason that you gave for that was that your evidence was in fairly short compass at the trial. You said you gave evidence for a day and a half and Mr Grieve for half a day. Is that correct? A. That's correct. I must state that for purposes of that trial a day and a half was adequate. Obviously, for purposes of this Inquiry much more time is required and much more detail is sought. Q. Who is it that told you that your time at the trial was limited? A. Nobody. My purpose at the trial was single-fold. I simply had to demonstrate to the jury conclusively -- to the court, I should say, because I would include the attorneys and the Lord Johnston -- I had to demonstrate conclusively to the court that Y7 was not Shirley McKie's print. There was no question of what happened or how it did happened or when did it happen or who did it; simply that it was wrong. I believe the purposes of this Inquiry are somewhat deeper than that. Q. The evidence that you gave at the trial to the effect that you could concede a number of points marked by the page 112 SCRO that you did not really agree with but were prepared to concede was given as a result of, as you saw it, the limited purposes of the trial. Is that correct? A. That's correct. MR HOLMES: Mr Chairman, the next question I am going to ask perhaps bears a warning from you on the witness' own position because what I am going to ask is if his evidence today is that during Ms McKie's trial he gave evidence on oath which he knew to be false. THE CHAIRMAN: I think that does call for what we called before the Fifth Amendment, that you are not obliged to answer any question that may incriminate you in any way the suggestion being that, as I understand will be made in this question, that your evidence on oath on that occasion differs from your evidence on oath at this Inquiry and that, therefore, your evidence on a previous occasion is open to question in legal proceedings -- could be, could be. So you are not obliged to answer the question if you do not want. A. I have not perjured myself neither there nor here. If there is a discrepancy in my testimony which is irreconcilable, such as Mr Moynihan pointed out in my notes with regard to my observations related to QI2, I'll readily admit it. But I think we may be dealing with semantics and I'm perfectly happy to proceed and page 113 consider anything you want to put to me. THE CHAIRMAN: It is entirely a matter for you whether you wish to answer the question or not. MR HOLMES: I will formally ask the question then. Mr Wertheim, is your evidence today that during Ms McKie's trial you gave evidence on oath which you knew to be incorrect? MR SMITH: I wonder if I can interject for a moment? THE CHAIRMAN: Yes. MR SMITH: I think if this is adopting a course of an accusation like this, if Mr Holmes' position is there is inconsistent evidence being given he should put to the witness what he said here today. We have the transcript. This is not something that is unavailable -- THE CHAIRMAN: What the witness said on the previous occasion. MR SMITH: -- on a prior occasion. That is the proper way it should be done under the Evidence (Scotland) Act -- THE CHAIRMAN: In other words put the precise terms. MR SMITH: Absolutely and, indeed, the context of that is required. THE CHAIRMAN: I think that is -- A. Mr Chairman, with all due respect to the Inquiry, I have come here to appear without legal representation because page 114 I have nothing to hide. This is the second allegation of criminality made against me today in this courtroom. I wish now to exercise my right to appoint counsel to represent me at this Inquiry and I wish my appointed counsel to sit with me through any further questioning. THE CHAIRMAN: I was going to say that did occur to me that you don't have separate legal advice and that I think if you wish to have it you certainly should. A. I see my position here as a friend of the court and I resent the fact that I have to be represented by a lawyer to defend myself against spurious charges but I am exercising that right at this instant. THE CHAIRMAN: I think that is perfectly legitimate. A. I wish to appoint Mr Andrew Smith as my counsel. THE CHAIRMAN: I think the first person you would need to speak to would be Digby Brown possibly but I'm not sure what the rules of the Faculty of Advocates are about direct appointment. A. My apologies for not knowing the difference. THE CHAIRMAN: Don't worry. Maybe we should do is take the short adjournment now and give you an opportunity to discuss the matter. Perhaps also we could proceed after it if they are not ready to deal with this point to another point and you page 115 could return to it if you wish to do so. MR HOLMES: Certainly, sir. THE CHAIRMAN: We will rise now until you are ready but not before 3.30. (3.22 pm) (A short break) (3.37 pm) THE CHAIRMAN: I am not sure how far advanced you have become in this but I have formally, as you know, appointed Digby Brown and you to represent Mr Wertheim's interest but what occurs to me, and will hear what you have to say about it, is that it seems to me that, rather than have this dealt with now, that Mr Holmes should be asked to put in writing the allegation that is being made against Mr Wertheim and that he should then be given an opportunity to respond to that in writing if he chooses to do so. MR SMITH: Sir, I wonder if I could say this at the outset: the first thing that is important is Mr Wertheim had, prior to a few minutes ago, made it very clear in correspondence with the Inquiry team that he was not legally represented and, in fact, chastised the Inquiry team for communicating with him or attempting to do so via Digby Brown. However, things have changed, as has been indicated. page 116 I am very conscious, sir, that listening to the exchange more recently that Mr Wertheim, as he pointed out himself, has twice today been accused of two serious crimes without any prior notification that he is going to be so accused and there are undoubtedly significant Article 6 rights in play here. I am still unaware of the precise nature of the allegations made, particularly regarding the question of perjury. You are right, sir, there has to be, effectively, a charge being made that he has prior notice of, he can give instructions on, he can think what his defence is, and I am sure there is one he wishes to present and explain the position fully. In the same way that if he was served with an indictment charging him with perjury. Sir, that is a practical issue. I may say that I have been invited by him and I am happy to accept for present purposes the representation. There may be issues of conflict of interest here. I do not know and what I certainly do not know is whether -- there clearly is no possibility of proceeding with that particular allegation at this time because I, although I have read the transcript of his evidence when he gave it in the trial, I am not in a position to read it now, take instructions, then in denial of it, and it has to page 117 be dealt with now. Now it's now a public allegation. It has to be ruled on and disposed of in some way. I cannot do that and it may be Mr Wertheim, for all I know, or I may decide I cannot continue to act because of the theoretical appearance of conflict of interest. I also observe, sir, that it is a matter of regret that when Mr Holmes sought leave to cross-examine, and on being invited to say what the issues were, he did not mention anything that could responsibly be suggested would be within the question of making a specific allegation there was a prior inconsistent statement on oath. That is a matter of regret but we are where we are. My suggestion, sir, is this: we cannot realistically, even without this problem we would not be finishing this this afternoon. I would hope to restrict my questioning to half-an-hour but I think with prior circumstances that would be optimistic. To deal with the allegations plural, I suppose, that have been made we are in a position where Mr Wertheim will have to give evidence on another occasion at some stage. I am not convinced that can be done by video link, something that can be discussed with him no doubt as to where we are. I also, frankly, feel it a little unfair page 118 for Mr Wertheim to be expected just to put everything behind him about what has been suggested and to then be questioned about things like bifurcations and ridge endings by Mr Holmes who has just made a very serious allegation against him that is going to be ringing in his ears and he clearly is very distressed and irritated about that allegation. THE CHAIRMAN: Yes, I understand that. MR SMITH: Sir, I regret to say it seems to me, in fairness and realism to all parties concerned we have to waken up to the fact Mr Wertheim is going to have to come back with perhaps separate legal representation in order that he can be in a position to respond to any other allegations which may be made without prior notice. He has told me he is concerned what is going to happen next, "What I am going to be accused of?" Sir, we are where we are and I suggest we are realistic and make arrangements for him to come back at some stage in the future. I agree with you, sir, that if allegations of this nature are going to be made, it is my submission they have to be made in advance, clearly, carefully and with sufficient notice in order that someone can decide whether they are going to have legal representation and what their response should be. page 119 I may say if other allegations are going to be made of a similar nature by any representative to any other witness, then I would suggest a ruling is made that advance notice is given of that to the party concerned so they know where they stand. THE CHAIRMAN: I think I should say in fairness to Mr Holmes there was some indication given to me by Counsel for the Inquiry that I may at some stage have to give a warning to a witness. So to that extent I was aware that he was going to put some matter that might call for a warning but beyond that I can't say anything. I still adhere to the view that it should be in writing, what is alleged against the witness, and then he should have an opportunity to be properly advised as to what answer, if any, he wishes to make to it. On the second point that you make, which is that he does not, as I understand it through you, feel that he wishes to continue his evidence today, then I would have to accept that. I cannot ask him to do something that he does not feel able to do. MR SMITH: I may say, sir, just to make it absolutely clear it wasn't entirely his decision. It seemed to me that looking at it as objectively as I can, that it is not a particularly attractive way of continuing when you know what has been said and then to engage in a technical page 120 discussion about fingerprints. So I don't think it's necessarily entirely his own view. It certainly is one I share. THE CHAIRMAN: Yes, I think your point about it being realistic that even sitting late and despite his accommodating us the way he has we are not going to finish his evidence today. I don't think it's profitable to have a debate about when he might be available or whether we can do it by link or what because I'm not whether on a link one could use the drawing system that you have been using. I think I must accede, in the circumstances, to your application. There was one other matter brought to my attention which is quite different and that is that I gather some people -- and I wasn't aware of it -- have been, as it were, demonstrating their own reaction to answers that have been given and to evidence. I really do not expect that short of behaviour and I find it unbecoming. If you happen to disagree with what a witness is saying that is all right but you do not demonstrate your views. I am sorry about this when you have helped us, Mr Wertheim, but I think this is the fairest course that I can take for you at this time and so we will now proceed on Tuesday. MR MOYNIHAN: We proceed on Tuesday with Mr Grigg. I think page 121 one of the matters that may be worth raising is that I certainly, picking up what my learned friend, Mr Smith, has just said, plainly from -- there is the straightforward technical question of whether the fingerprints have been correctly identified or not. In addition to that, there is the 12 years of history, to some extent, in relation to this, that will without question bring in some attacks on character from both sides and I have raised in conversation the extent to which attacks on character will assist the Inquiry. Above and beyond that, it has to be said, in fairness, that the allegation that is made against the Scottish Criminal Record Office is that some of their officers engaged in a criminal conspiracy at some stage. That is an allegation that is being supported by reference to some of the technical fingerprint evidence and, accordingly, even I can anticipate, sitting where I am, that those who are attacked in that manner will feel the need to defend themselves in a similar fashion and though I have no reason myself to anticipate what may be asked of Mr Grigg, my concern is that we will encounter much the same difficulty with him and, indeed, with successive witnesses in relation to this matter. It is very much a question on which you, sir, would be asked to reflect because to give advance notice in page 122 writing of specific lines is something that may be just a degree impractical and that we have to acknowledge there is a limit to which attacks on character may be relevant. However, the contradiction, as I have indicated, is that I apprehend that there will be those who will be seeking to take from the fingerprint evidence allegations against the Scottish Criminal Record Office staff that they engaged in some improper conduct and, accordingly, there will have to be some means in which they can defend themselves as they see fit. THE CHAIRMAN: I think consistent with the ruling that I have made that where an allegation of criminality is going to be made against anyone on the Inquiry there will have to be written notice given to them by the party who is seeking to make that allegation. I am not critical of the way it has been dealt with to date, Mr Holmes, but I am sure you will be able to formulate as soon as possible the allegation that is being made and I would be obliged if you give it to the Inquiry, then the Inquiry in turn will pass it on to the party or any party affected. MR MOYNIHAN: Sir, sorry, trying to think this through myself. The procedure of course that we have to give consideration to is the technical procedure of a warning page 123 letter. THE CHAIRMAN: Oh, yes. MR MOYNIHAN: Of course had a warning letter been appropriately framed then it could have given advance notice of this. As I've said, I assume that this is simply the first of a number of lines of cross-examination which for perfectly foreseeable reasons will raise these sorts of issue. Perhaps Mr Holmes could reflect on the fact that we may need to give witnesses a warning notice that they may be open to challenge on various lines and that would bring it within the rules of the Inquiry. THE CHAIRMAN: Yes. I hope it is reasonably clear now what approach we're going to take. Again, I am sorry, that having accommodated us we have not been able to use the time fully but that is no fault of yours whatever, and so we will adjourn now until 10.00 on Tuesday. (3.50 pm) (Adjourned until 10.00 am on Tuesday, 29th September 2009)