page 1 1 Thursday, 1st October 2009 2 (10.00 am) 3 ROBERT HARVEY MACKENZIE (continued) 4 Further examined by MR MOYNIHAN 5 THE CHAIRMAN: Good morning, Mr Mackenzie. 6 I think we were dealing with the Rosetta. 7 MR MOYNIHAN: Mr Mackenzie, what I wanted to do was approach 8 again the Rosetta, beginning with a slightly earlier 9 part of your book which we all have. 10 If I could bring up CO0059 and, on this occasion, go 11 to the manuscript pages 23 and 24, please, so that will 12 be digital 24 and 25. 13 You covered this yesterday and what you indicated 14 was these were two images of the same fingerprint but 15 with differences between these images? 16 A. Correct. 17 Q. It's a point I have been making myself last week, that 18 the same features can appear different as between 19 different images? 20 A. Correct. 21 Q. Yesterday you indicated the contrast between the two 22 images, bifurcations on page number 23, manuscript 23 page 23, appear to be ridge endings in page 24? 24 A. Between the three images, yes, in magenta appear of the 25 manner of ridge endings as opposed to bifurcations, page 2 1 ridge endings. 2 Q. So it's comparing the highlighted magenta on the right 3 with the corresponding green on the left? 4 A. Correct. 5 Q. What you indicated yesterday when looking at these -- 6 and it was at page 62 of the transcript -- that the 7 importance of this was that it stresses to fingerprint 8 examiners the need to look at the best prints. 9 Is that correct? 10 A. The best material available to you at any given point, 11 yes. 12 Q. What you did not actually cover -- and this is my reason 13 for returning to this and starting here -- of the two, 14 which is it that you regard as the better? 15 A. Undoubtedly the Strathclyde Police elimination left 16 thumbprint plain impression shown on page 23. 17 Q. However, what you do to proceed, ultimately will 18 culminate in the analysis of the Rosetta, is in fact to 19 use the one on the right? 20 A. Correct. 21 Q. What you are doing is using the inferior one of the two? 22 A. Comparing one with the other, yes, that is the lesser 23 quality. 24 Q. If I can work this through, if I go back now in the book 25 to pages -- bring up a pair -- 17 and 18 and it will be page 3 1 digital pages 18 and 19. Again, the one on the left 2 comes out not too badly electronically. The one on the 3 right is perhaps even more inferior than the paper copy. 4 Do I understand that the image on the left, which is 5 "second left thumb image Internet", it is marked, is 6 indeed this basic image that you carry through in your 7 analysis culminating in the Rosetta? 8 A. Yes, it is. 9 Q. On page 18, you indicate an area that is possibly an 10 injury? 11 A. From my experience, the disturbance of the ridges there 12 looks like the result of an injury. 13 Q. What I was going to ask you about in relation to what we 14 will be talking about today, if I understand it 15 correctly, the feature that I am going to ask you about, 16 the Rosetta, is in the vicinity of the crescent -- and I 17 have just put on the image on the right-hand side a red 18 oval that's very difficult to see on the computer screen 19 but in the book, if you look at the book, have I indeed 20 marked, roughly, the area of the crescent? It is not so 21 much where it is top to bottom but where it is in 22 relation to the magenta line that indicates -- 23 A. The orange line on this occasion. 24 Q. Habit, I'm afraid. It just shows you how poor my colour 25 recognition is. Orange on this occasion. page 4 1 A. I've got the original. It's orange. 2 Q. Have I marked the position of the crescent shape 3 relative to the orange mark? 4 A. From what I can see on the screen here it looks as 5 though it's the approximate area, yes. 6 Q. So if we could save that image, please. That will be 7 image 2 for today for a reason that will become apparent 8 in a moment. 9 THE CHAIRMAN: You say from what you can see on screen, but 10 if you look at your book -- 11 A. The book's clearer. 12 THE CHAIRMAN: It is clearer and may be you would like to 13 just check it with the book. 14 A. It's just to the right of the orange -- the orange line 15 is an approximation. It was just to give a guide to 16 what I was actually trying to -- my observations from 17 the left-hand image. Basically, this is the approximate 18 area of the damage. So where you've marked it on the 19 book here, because the ridges, it's quite dark on the 20 screen, it looks as though you've marked just about 21 where the Rosetta characteristic is. 22 MISS BAHRAMI: That is image is saved as FI0110.02. 23 MR MOYNIHAN: What we will look at, Mr Mackenzie, is on the 24 left-hand screen, I will do the same and I will put an 25 oval round what attracts me all the time and helps me to page 5 1 orientate the crescent shape. 2 A. That's what you described as a crescent shape yesterday 3 and I would agree that's at that point, yes. 4 Q. As I say, it does not matter whether it is truly a 5 crescent. It is just that is how I will refer to it. 6 I will take the circle or the oval away because it 7 does tend to obscure the point I am trying to make. If 8 one attaches significance to the crescent, the point is 9 that the Rosetta characteristic is immediately adjacent 10 to the crescent and is where the finger of the hand is 11 currently pointed (indicated). Have a look at your own 12 book. If you look at page 32 of your book -- in fact, 13 it is very difficult to see on the digital version. 14 A. Yes. 15 Q. So where I am pointing to is the Rosetta characteristic? 16 A. Yes. 17 Q. What I will do is put an arrow in. I will come back to 18 this shortly in one that is marked up. My arrow now 19 points to the Rosetta characteristic. 20 A. Okay. 21 Q. The reason for doing this is that what we actually find 22 is that the Rosetta characteristic rests exactly on this 23 fault line that you are describing as an area of injury? 24 A. No, it's very close to the area of the injury. 25 Q. Very close to it? page 6 1 A. Yes. 2 Q. One possible explanation would be that the area you have 3 described as the injury, on the left-hand side can one 4 see it tracing up the line I am showing just now? 5 A. Yes. 6 Q. So if I put that line in. Again, it not intended to be 7 exact -- 8 A. In the same manner as my orange line wasn't meant to be 9 exact but, yes, that's the approximate area. 10 Q. I might be arrested for drunk driving if that's my best 11 effort. 12 A. Could I add, just to add to my opinion as this being 13 some damage, if I could actually point out while we're 14 actually discussing this potential as damage, that 15 actually in the core area the inner-most recurving ridge 16 on the left-hand image, which is quite clear here, 17 you'll actually see that there's actually a split in 18 that inner-most recurving ridge. Whereas if you go back 19 and look at the Strathclyde Police image, there's no 20 such split and that again was further information that I 21 took cognisance of. It wasn't just where the orange 22 line -- the orange line was basically just to give the 23 approximation, but actually looking at the finer detail 24 the damage goes right into the core of the print. 25 Q. Can you tell me, please, can you point to me the area of page 7 1 damage in the core you are mentioning? 2 A. Here. (Indicated) 3 Q. When you say "here", can we put a circle. Just 4 highlight the circled area. 5 A. Okay. 6 Q. So you have now put a red oval over an area. Where you 7 say the break are you indicating -- 8 A. Just at the top of the oval and if you look at that and 9 if you look again at the police form taken in 1997, 10 there's no such break there. So that reinforced my 11 judgment that there had been damage and it was right as 12 far through as the core of the mark. 13 Q. First of all, if we save that image, please. 14 MISS BAHRAMI: That's FI0110.03. 15 THE CHAIRMAN: Before we go to that, should we then see 16 where the break does not occur, just for completeness. 17 MR MOYNIHAN: Yes. If we go back in that case to page 23, 18 digitally page 24 -- before we make a change can I keep 19 on the left-hand side of the screen the current image 20 from page 18 and bring up on the right-hand side the 21 digital page 24, manuscript page 23, so we can compare 22 side-by-side. 23 THE CHAIRMAN: Would you like to mark the equivalent area 24 where the break does not occur so we can all be sure we 25 are looking at the same spot. page 8 1 A. Okay. (Indicated) 2 THE CHAIRMAN: Thank you. 3 MR MOYNIHAN: We will again save that image. 4 MISS BAHRAMI: That's FI0110.04. 5 MR MOYNIHAN: Mr Mackenzie, what I suggest is one possible 6 interpretation of this area of damage that you are 7 indicating on the left is that it is to be seen by 8 contrast with the better image -- that's the police 9 print is better, so we're using an inferior image -- and 10 that what you have even in your book, let alone what we 11 see on the screen, is a copy -- 12 A. Sorry, which page are you talking about? 13 Q. Sorry, page number 17 in your book. 14 A. Yes, that's correct. 15 Q. Even your original is a copy; it is a copy taken from an 16 Internet image? 17 A. Correct. 18 Q. The Internet image will itself be a copy? 19 A. I presume so. 20 Q. It must be because it's on a computer. 21 A. It's been captured from whatever image Mr Wertheim had 22 on to the computer, yes. 23 Q. So what we are actually looking at and what you are 24 looking at in front of you is, at best, a third 25 generation image? page 9 1 A. Correct. 2 Q. Why one uses, as far as possible, originals is it is 3 known there can be deterioration in the quality of the 4 image from generation to generation? 5 A. You're suggesting that's an explanation for what may be 6 damage? 7 Q. An explanation I'm suggesting, yes. 8 A. It certainly may be a theory put forward. 9 Q. You do not know what the explanation is for the damage. 10 A. No. All I'm saying is from my experience and looking at 11 the image just the same way as I was looking at a mark 12 and taking all the information, when I first received 13 these images that was my observations and that's hence 14 it's produced in the book and today it's still an 15 observation. But it's based on experience of seeing 16 fingers through various stages from, for example, 17 arrestees may re-offend several times and you can see 18 differences from one form to another. 19 So, using my experience of that, the indications, 20 and particularly looking at that right down to the core 21 area there where it actually cut through the ridge, from 22 my experience, my opinion is that that looks like as a 23 result of an injury and that's what all I can say. 24 Q. Your normal experience in a lab would be comparing first 25 generations, one set of inked prints with another set of page 10 1 inked prints? 2 A. Correct. 3 Q. So that the variable factor of image quality would not 4 be a complication? 5 A. The image quality does vary on first generation inked 6 because every impression taken is different and they can 7 be smudged and, I say, on occasions fingers coming in in 8 a chain of events where an arrestee has been arrested 9 several times that it can change due to injuries. 10 Q. By degree, Mr Mackenzie, what we have here is not just 11 the possibility that one inked print may differ from 12 another but, first of all, the first complication is 13 that the original photograph of the one on page 17, the 14 photography technique even initially applied may result 15 in some measure of distortion? 16 A. Photographic technique, are you talking about 17 Mr Wertheim taking a photograph and putting it to the 18 Internet. 19 Q. No. Even if Mr Wertheim takes his photograph there may 20 be differences to be observed even if one compares one 21 photograph with another taken of the same inked, yes? 22 A. Yes. 23 Q. So that is an area of possible distortion. 24 Secondly, there is a potential for distortion when 25 one of those images is put on a computer? page 11 1 A. There is potential, yes. 2 Q. There is a third distortion when that computer image is 3 downloaded and printed on whatever quality of printer it 4 is printed on? 5 A. I understand that, yes. 6 Q. So there is a minimum of three sources of possible 7 distortion? 8 A. Correct. 9 Q. What you are then looking at is an image which has I 10 will use the neutral term "damage" in it and we are 11 trying to construe that damage, conscious of at least 12 the three areas of potential distortion that are natural 13 in moving from one copy to another. 14 A. Okay. 15 Q. Whether it is due to natural deterioration from one copy 16 to another or injury, the fact is that what you are 17 doing now is you are looking at Y7 which, on this 18 hypothesis, is an undamaged finger, yes? 19 A. Okay. 20 Q. And you are comparing with that undamaged mark an image 21 you see at number 17 which has damage of uncertain 22 origin, yes? 23 A. Yes. The reason for obviously making a comparison is in 24 that this was further, obviously, additional impressions 25 that had been taken from Ms McKie and were not available page 12 1 to me initially. So it was taken in cognisance of and 2 because it's not just the Rosetta characteristic but a 3 group of characteristics relative to where the Rosetta 4 characteristic is that were not available to me on the 5 police elimination forms. So that was the order of 6 using it. 7 Q. The point about it is that what you are looking at is 8 ultimately an inferior copy, yes? 9 A. It's not a first generation copy of the print. 10 Q. It's inferior to the first generation one that's on the 11 screen. 12 A. Yes, sorry. Page 23, yes. 13 Q. It has one could call it damage or it has artefacts in 14 it, the inferior one? 15 A. Yes. 16 Q. Artefacts in it that run very, very close to the very 17 feature that you are trying to explain? 18 A. Yes, but that's the starting point. That gave me the 19 starting point. The Rosetta characteristic where I put 20 it as being in Ms McKie's print was the starting point 21 in a cluster of characteristics, not just the Rosetta 22 characteristic. 23 Q. Do you recognise that the starting point has certain 24 weaknesses because you are looking at an image that is 25 troubled by artefacts? page 13 1 A. In the same way as I would take regard of all the 2 information in the mark when I would be assessing that 3 cold from the start, the same way I would like at, as I 4 think I've said in my evidence already, you've obviously 5 got to take into account all the information in the 6 control print and when I was using this for comparison 7 purposes at that stage I was taking in cognisance. 8 Hence, I wouldn't have actually highlit that but I was 9 actually -- again, it was in the interests of 10 transparency to basically give to whoever the audience 11 was going to be when this was done, to give my 12 observations. So it's a bit like saying, "Did you take 13 notes". Well, this was my -- this was me actually 14 articulating on paper my observations and nothing more 15 than that. 16 Q. What I covered with you yesterday was that if you are 17 correct about the relocation of the Rosetta 18 characteristic, its original point on Ms McKie's 19 fingerprint was in fact observable in the print, the 20 inked original, first generation inked original 21 fingerprint dated 6th or stamped 7th February that you 22 looked at on 17th February 1997? 23 A. I only discovered that one point, not the cluster of 24 points available but that one point from my observation 25 in the comparative exercise. That was the first time page 14 1 that I noted it. But there was no supportive further 2 area to the right of that which there is within the 3 Internet image. That's the difference. 4 Q. Let us then carry on and look at the Internet. First of 5 all, let us look at your charting of Y7 so we know the 6 points we are going to talk about. 7 Page 11 of your book, digital page 12. 8 A. 11 and 12, yes. 9 Q. In fact, if we bring up 11 and 12, so 12 and 13 10 digitally. On page 11 -- and for members of the public 11 just for convenience I will use the manuscript numbers 12 which are in the top right-hand corner so we are all 13 looking at the same thing -- on page 11 you have a 14 charting of Y7 of points numbered 1 to 45 in clusters. 15 A. Sorry, 1 to 45 in clusters? 16 Q. Yes. 17 A. Yes. 18 Q. On the corresponding copy of the police image you have, 19 in fact, highlighted only points 1 to 30? 20 A. Correct. 21 Q. The omitted items, 31 to 45, I do not find reproduced on 22 a single sheet -- in other words, there's no single copy 23 of Ms McKie's fingerprint on which I can see numbers 31 24 to 45? 25 A. Correct, because these were found when the Internet page 15 1 material became available. 2 Q. But even when the Internet material became available, 3 you did not mark on one copy of the Internet image the 4 features 31 to 45. 5 A. No. 6 Q. Why not? 7 A. It's the first time I've thought about that question. 8 Basically, my process was going through what I had on 9 the police form and then when the Internet became 10 available, I then marked up the additional information 11 that was unavailable to me on the police form. 12 The thought has never occurred to me to mark 13 everything on the Internet copy, other than, should I 14 say, I think I referred to Chief Superintendent Bell 15 asking me to put points on it. They weren't numbered 16 within, I think, the two or three pages of the Internet 17 copy. So at some stage I did mark points on that I 18 could observe, if you like, second-hand after having 19 done my original observations from the police form. So 20 it's not correct to say that I haven't marked more 21 than -- I have attempted to mark with the dots on, and I 22 think it's the three pages later on, and I say it was 23 Chief Superintendent Bell who said, "Could you mark on 24 these what you can actually see on the Internet". I 25 think it was because of comments that had been made by page 16 1 people about the Internet images. 2 Q. One of the reasons about asking you about where you've 3 marked this additional set of clusters on one image is 4 that if one looked at them all side-by-side on one 5 image, one would then get a visual understanding and 6 appreciation of the relative -- relative -- movement of 7 these points. 8 A. That's a possibility. I'm also thinking that a reason 9 for -- and it's not, it's just me thinking through a 10 process just now -- it would also, if I had used the 11 Internet copy it would have had to take cognisance of 12 the damage right down into the core area. So using the 13 clear image and in the process that I did for the 14 initial points that I marked on page 12, that was from 15 the best image available and it's the additional stuff 16 that was not available within that image that -- and I 17 say it's the first time I've ever even thought of what 18 you've actually suggested. 19 Q. We will look at this going through some of these 20 clusters but the first point that arises is, as you said 21 yesterday, that in fact what we can see on the 22 right-hand side of the screen are some of these 23 additional points. 24 They are actually there, aren't they? 25 A. Could you explain which ones you are talking about? page 17 1 Q. Some of the points that are otherwise missing, 31 to 45, 2 are in fact present on page 12? 3 A. On page ... I don't understand what you're suggesting. 4 Q. Some of the points that you have highlighted as 31 to 45 5 on the left-hand side are, in fact, present on page 12? 6 A. 31 to 45 not ... well, I now see what you are meaning 7 that what I said was that there were three points that 8 were common in the group 23 to 28 with three that were 9 within 38 to 45. Is that what you're meaning? 10 Q. Yes. Mr Mackenzie, number 26 on page 12 and on page 11, 11 number 26 is 43? 12 A. Yes, that's correct. 13 Q. 27 is 44? 14 A. That's also correct. 15 Q. 28 is 41? 16 A. That's also correct. 17 Q. Why is that not marked -- to assist people who are 18 looking at this -- on page 12? 19 A. How's it not marked? You mean why have I not gone back 20 and marked in magenta ones in that area of the 38 to 21 45-point -- 22 Q. Let us look at this -- if I just ask you this -- if we 23 then look at page 11, what you in fact are indicating on 24 page 11 is that there are three points in fact present 25 twice, each of three points present twice on page 11. page 18 1 A. Yes. 2 Q. But there is nothing on page 11 or page 12 to alert the 3 observer to that fact. 4 A. Okay, I need to now explain my processes. I think this 5 is what I said about when putting together this book. 6 This, if you like, is my notes of how I went about the 7 comparison and from what I had available in the police 8 form 23 through to 28 is part of my re-examination of 9 this case using my original or the prints that had been 10 available to me. 11 I identified that cluster shown on 11. Again, it's 12 a sequence of events of what then with the Internet 13 stuff coming available, it hasn't occurred to me ... I 14 mean, I see what you're suggesting but it never occurred 15 to me to then suggest that I should have been, say, 16 putting, like, a double number beside these, for 17 example. So I take your point but this is a record of 18 the process and, if you like, my notes of the progress 19 of how I conducted this. I don't know what you're 20 trying or if there's somebody trying to read into it 21 but... 22 Q. Mr Mackenzie, I will try to be more straightforward. 23 What we will ultimately come to, the question in 24 relation to the Rosetta characteristic and it is true 25 now of any characteristic that you say is relocated, the page 19 1 question is what physical movement transfers that 2 feature from one position on a print to another? What 3 physical process does that? 4 If I can give you just an example, point number 26 5 on page 11, point number 26 is the same as point number 6 43. 7 A. Yes. 8 Q. What physical motion results in a duplication of that 9 feature as points 26 and 43? 10 A. Okay, it's my opinion that when this finger was 11 deposited on the surface that the lower segment had 12 touched first with an axis approximately in the core 13 area because I've referred to my interpretation that the 14 lower half has swivelled. That's the description I've 15 given to it, with the axis of movement starting roughly 16 in the core area and coming round in an anticlockwise 17 manner, then the finger has slightly lifted from the 18 surface and the area in which I've highlighted 23 to 28 19 has then touched and then the finger has very slightly 20 lifted again, and continued in the anticlockwise manner 21 and moved slightly to the left; hence, the reason that 22 there is a second cluster and it came to obviously 23 having all that material available to do the analysis 24 eventually came to the conclusion that there's at least 25 two touches in the top. page 20 1 So it's an anticlockwise movement, swivelling in the 2 base part, continuing round the finger lifting off, 3 depositing the area with 23 to 28 or 29/30 as I've 4 illustrated on here and then going further round and 5 lifting off and moving slightly to the left and 6 depositing the group of about eight characteristics 7 that's between 23 and -- sorry, between 38 and 45. 8 Q. 26, 27 and 28 have swivelled round anticlockwise to be 9 43, 44 and 41. Where are 23, 24, and 25? 10 A. Where are 23, 24 and 25? 11 Q. Yes. Did they swivel round? 12 A. Again, they would be further off to the left of the 13 group of 38 to 45. 14 Q. Far off to the left? Right. What about 29 and 30? 15 A. 29 and 30 ... this is the -- sorry, which numbers did 16 you say? 29 and 30? 17 Q. 29 and 30. 18 A. 29 and 30 are what I observed as incipient ridges and, 19 again, with the second touch, as I explained, with 20 incipient ridges they may or may not appear depending on 21 the pressure at that moment in time when the print was 22 left. 23 Q. We will come back to the question of swivel in a minute. 24 What else I want to ask you about, concentrating now 25 on points 29 and 30, points 29 and 30, if I look at page 21 1 page 11, are as you say incipient ridges in furrows 2 either side of one ridge. 3 A. Yes. 4 Q. Along from them in the same furrows are 31, which is in 5 the same furrow as 29, and 32 which is in the same 6 furrow as number 30. 7 A. Yes. 8 Q. Where on the image on page 12 do we see the features 31 9 and 32? 10 A. They haven't been recorded in that inked impression. 11 Q. So in the better quality police impression, the features 12 that you regard as 31 and 32 are absent? 13 A. Yes. 14 Q. Can you explain to me the evidential justification of 15 relying on an inferior image for the existence of points 16 which are absent from the better quality police 17 impression? Evidentially, how do you justify that? 18 A. All I can say is the particular recording of the prints 19 of Ms McKie and in relation to what's been left there, 20 then it's on different occasions and, as you say, my 21 observations and on these particular points, 31 and 32, 22 it was from the Internet version which these appropriate 23 characteristics were appearing. 24 Q. If I look then, please, at page 26 (digitally 27) -- if 25 I keep page 12 up on the right-hand side and go to page 22 1 page 26 on the left, again I apologise to the members of 2 the public, the quality is not clear, but if I can point 3 (indicated) am I correct with my pen, Mr Mackenzie, in 4 pointing to feature number 31? 5 A. Correct. 6 THE CHAIRMAN: I think we should maybe ask for it to be 7 drawn in in due course. 8 MR MOYNIHAN: Yes, if we can put the text icon back up and 9 31 and 32, first of all, the numbers. I will not get 10 this correct, Mr Mackenzie, without your help. 11 Is my pen at the moment poised on the feature number 12 31? 13 A. Appears to be, yes. 14 Q. I will just do this because the image is so poor but we 15 will just try and do it roughly. In the area that I'm 16 pointing to roughly there are the two features 31 and 17 32. Correct? 18 A. Correct. 19 Q. You have also marked -- and it is even more faint on 20 this -- to the left of 31 and 32, two other blue 21 circles. 22 A. Yes. 23 Q. I will not try that. Those other two blue circles on 24 page 26 one assumes are features 29 and 30? 25 A. Correct. page 23 1 Q. But they are unnumbered? 2 A. There aren't numbers? 3 Q. They are unnumbered on page 26? 4 A. Yes, I think because in the presentation I think we 5 actually omitted this page in the presentation yesterday 6 and the explanation was that we'd finished off with the 7 PowerPoint showing 29, 30 and it came up with 31 and 32 8 and at that point I should have referred to this page. 9 So it was to show the continuity and, yes, I haven't 10 marked the points but I would have been able to 11 illustrate what you have just pointed. 12 Q. Mr Mackenzie, for continuity you have marked circles but 13 you have not numbered them as 29 and 30? 14 A. Again, this is the thought process that it was to point 15 out that these two were areas of occurrence in the ridge 16 detail that wasn't present on the police form but with 17 the Internet I was satisfied that that was in the 18 appropriate position with what was on the mark. So, 19 again, there's nothing -- I can't see anything untoward 20 in it. It was an omission yesterday and it should 21 flowed into that and I could have given it. There's no 22 reason for not marking them or any -- 23 Q. I am not suggesting any impropriety but to an enquiring 24 mind, someone who is following your demonstration, with 25 what I now have up on the screen, if you had flagged 29 page 24 1 and 30 as the blue circles immediately to the left of 31 2 and 32, somebody might have said to you, "But, 3 Mr Mackenzie, why are 31 and 32 not on the corresponding 4 positions in page 12"? 5 A. That's the nature of incipient ridges. Sometimes they 6 record and sometimes they are not and the actual depth 7 of that incipient ridge in the furrow would depend upon 8 how it was recorded. 9 So with the Internet material becoming available it 10 was my opinion at that time that that was the other two 11 that were shown in the mark. 12 Q. But you see my point that the enquiring mind -- 13 A. Absolutely. 14 Q. -- has to actually go some considerable distance to 15 piece this together to even ask the question. Yes? 16 The next step we take -- and I am going to add to 17 the image on the left, a yellow circle, again to show -- 18 I will take that away but if you look to the area where 19 I put the circle and I will redraw it, my crescent shape 20 is where the finger is? 21 A. Sorry? 22 Q. The crescent shape? 23 A. The crescent shape is just to the -- that's the crescent 24 shape where you're -- 25 Q. Please, as on many of these occasions, use your own page 25 1 book which is much superior quality. The area I am just 2 about to mark with an oval in yellow is the crescent 3 shape? 4 A. Correct. 5 Q. So what we are now about to see is that 31 and 32, the 6 features that are missing on the inked police original 7 are, in fact, in close proximity to the very point we 8 are interested in, which is the Rosetta Stone (sic)? 9 A. Yes. 10 Q. What I want to do is to move you to page 32. 11 THE CHAIRMAN: Do you want to record this? 12 MR MOYNIHAN: If we take these away now, yes. 13 THE CHAIRMAN: But do you want to record it? 14 MR MOYNIHAN: I am sorry, sir, yes. I am grateful. 15 MISS BAHRAMI: That's image FI0110.05. 16 MR MOYNIHAN: If we move to the paper page 32 of this and if 17 you could also bring up image FI0110.01 -- and that 18 explains why the numberings for the hearing begins at 19 FI0110.02. If we have up simultaneously -- also the 20 image that will be FI0110.01. I thought we saved an 21 image before we started. 22 If we could bring up, please, on the right-hand side 23 page 17 (digital page 18). What I have brought up on 24 screen are pages 17 and 32. Page 17 is the original 25 copy in your book of the Internet image. page 26 1 A. Yes, the one that's marked the second Internet image. 2 Q. The reason why I am having to do this exercise is that 3 the copy on screen marked 38 to 45 is obscure. We did 4 this to some extent yesterday but I will redo the 5 exercise just now. First of all, I have to locate my 6 crescent. Have I located it, yes? 7 A. Yes. 8 Q. If I put an arrow on the crescent, immediately to the 9 left of the crescent is the Rosetta characteristic, 38? 10 A. Correct. 11 Q. What I will do is try to mark that again with an arrow. 12 This is the reason for coming to the better quality 13 image: if I look at your page 32, if I go one ridge down 14 from the Rosetta, there is then a ridge which breaks, 15 yes? 16 A. Yes. 17 Q. The right-hand side of that ridge which I am pointing 18 now to with an arrow is your point 39? 19 A. Correct. 20 Q. What is the feature immediately to the left? 21 A. It's a ridge ending to the right, it's the other side of 22 the break. 23 Q. It's a ridge ending? 24 A. Yes. 25 Q. So now we have if we could mark in the text -- I'm not page 27 1 very good at this -- first of all, the crescent, then 2 the first arrow is 38, the second arrow is 39 and the 3 third arrow is 40. That gives us clarity. 4 Would you now in the book, Mr Mackenzie, bring up 5 page 26 of your book -- we had better save that image 6 before we go too far. 7 MISS BAHRAMI: That's saved as FI0110.06. 8 MR MOYNIHAN: Look back to page 26. Again, this will be 9 quite difficult. If we can go back to the image -- in 10 fact, it is very difficult to do on the image that we 11 saved, but on the left-hand side if we could bring up, 12 please, FI0110.05. 13 I will try to highlight the area that I am 14 interested in, slightly obscured but hopefully the 15 ladies and gentlemen will be able to follow this. It is 16 clearer in your book. 17 Again, if I start at the crescent, adjacent to which 18 is the Rosetta on the right, 38, I go one ridge down, I 19 go along to the end of the ridge where I've now marked 20 up on the screen as 39, I go across the gap and, on 21 page 26, what I get across the gap is 31 and 32? 22 A. On either side of that, just to the left of that. 23 Q. On either side of that ridge? 24 A. Just to the left of it, yes. 25 Q. So 31 and 32 seem to be sandwiched either side of page 28 1 point 40? 2 A. Yes. 3 Q. Now we have up on screen point 40. 4 Can you explain to me how you can construe on this 5 inferior image that particular mark -- I will resist the 6 term that was used at the criminal trial -- that 7 particular mark which is now number 40 as three 8 discernibly different features, two incipient ridges 9 either side of a ridge ending? 10 A. Sorry, can you repeat the question? 11 Q. If 40 on my right-hand side image coincides with the 12 location of points 31 and 32 -- let's bring up page 26 13 in the original. On the left-hand side bring up page 26 14 (page 27 digitally). Again, apologies for those who are 15 watching this in the public bench. The paper version is 16 superior to this extent. In 31 we may have to just put 17 in the text box. Point 31 and then point 32. We're in 18 the area I'm about to indicate by an oval. That is the 19 area of 31 and 32 (indicated). 20 A. Okay. 21 Q. Yes? 22 A. Okay. 23 Q. It is the same area as point 40? 24 A. It's to the left of point 40. 25 Q. Why do you say it is to the left of? Mr Mackenzie, if page 29 1 you look at your book you have the crescent. Can you 2 find the crescent? 3 A. Okay. 4 Q. The ridge immediately to its side is the Rosetta, 38? 5 A. Okay. 6 Q. Hold open 32 and 26 just to double check. 7 One ridge down from the Rosetta there is a small 8 ridge that begins slightly to the right of the Rosetta, 9 goes slightly to the Rosetta's left and there's a break? 10 A. Yes. 11 Q. On page 32 the right-hand edge of that ridge is 39? 12 A. Correct. 13 Q. The left-hand side of that ridge is 40? 14 A. Correct. 15 Q. Here on page 26 we come from the crescent left to the 16 Rosetta, down one ridge and left to the gap where there 17 is nothing, immediately to the left of the gap there are 18 two blue circles, one on top of the other, the circles 19 touching each other, and those are points 31 and 32. 20 A. Yes. 21 Q. In that area of 31 and 32, you are in fact, in a 22 combination of these two pages, pointing to three 23 features: 31, 32 and 40. 24 A. Yes. 25 Q. Can you tell me how on the right-hand side of the image page 30 1 on the page we have up just now, page 17, you can 2 discern three features in that one mark, with that one 3 point on the image? 4 A. My observations were there's actually a -- if you look 5 at point 40, there's a thickening of that particular 6 ridge there and the incipient ridges are close by on 7 either side of that, particularly the one in the top is 8 causing that thickening at point 40 and the other one is 9 slightly separated to the left of your arrow of 40. 10 Q. Mr Mackenzie -- 11 A. That's point 32. 12 I will use the pejorative term that came to be used in the 13 criminal trial. The point which is highlighted as 14 number 40, that thickening area, was in the criminal 15 trial referred to as an example of a "blob" in the 16 image. 17 A. Sorry, which trial? 18 Q. In the criminal trial during the course of the 19 examination of the witnesses, Mr Findlay came to ask 20 Mr Stuart and Mr Macpherson, "What is that blob". 21 A. Okay. 22 Q. The blob in this instance is the thickened almost little 23 circle that we see pointed at in number 40? 24 A. I wasn't at the trial and it's the first I've heard of 25 the reference to it, but my analysis led me to believe page 31 1 that at that point the thickening is on the upper half, 2 right above 40 is the incipient ridge and below it 3 separately I can see the other incipient ridge. 4 Q. So your interpretation of that feature is that there are 5 three anatomical features present: two incipient ridges 6 either side of a ridge ending? 7 A. Yes. 8 Q. You can see that? 9 A. That's my interpretation, yes. 10 Q. I should be able to see that. 11 A. Sorry? 12 Q. I should be able to see that? 13 A. In my analysis and looking at the material I had, I can 14 see it. 15 Q. Now, surely, we are right in the area of the injury when 16 we are talking about these features, the crescent 38, 39 17 and 40. This is where the injury you say runs right 18 through? 19 A. Correct. 20 Q. In that area you say, despite all the distortions that 21 are possible, there are discernible three distinct 22 anatomical features, two incipient ridges and a ridge 23 ending? 24 A. What I'm saying is from my analysis it's consistent with 25 being these incipient ridges in that place. page 32 1 Q. If we move then on to the next point about this, now 2 that we know that at point 40 -- if we save the images 3 that we have just now. 4 MISS BAHRAMI: That's saved as FI0110.07. 5 MR MOYNIHAN: Can we go back, please, to page 11, just one 6 image of page 11 -- if we keep page 17 on the right-hand 7 while I think about it and have brought up on screen 8 page 11 on the left. 9 Mr Mackenzie, how many times on page 11 do we see 10 the Rosetta characteristic? 11 A. On page 11, once. 12 Q. Where? 13 A. Where? Where it's marked as point 38. 14 Q. Now that we know that number 40, point 40, is very 15 close, we see on the left-hand side, again it's 16 reproduced number 40 is very close to 38, yes? 17 A. Yes. 18 Q. Where on the left-hand side of the screen do we see 19 marked the two incipient ridges 31 and 32? 20 A. Where on the left? 21 Q. Yes. 22 A. Over above the fault line and more to the right of the 23 page. 24 Q. But you have not marked it. 25 A. On page 11 -- page 33 1 Q. Sorry, where on the left-hand side, point 40, you've 2 told us is a ridge ending, either side of which are two 3 incipient ridges, numbers 31 and 32. 4 Where on the left-hand side of the screen have you 5 marked those incipient ridges, which is are either side 6 of number 40? 7 A. They're not marked in that particular part of the mark. 8 Q. They are not marked? 9 A. No. 10 Q. They are only found on the right-hand side of the image 11 as 31 and 32? 12 A. Where the different touch was. It's a separate touch. 13 Q. So the separate touch has, in fact, you would say, 14 revealed on the right-hand side the minuscule incipient 15 ridges but not the more gross feature, the ridge ending? 16 A. Correct, because in different placements sometimes 17 incipient ridges show and other times they don't show. 18 Q. Now that we know that number 40 is indeed sandwiched 19 between 31 and 32, we can then make the translation that 20 31 and 32 are close to the Rosetta characteristic. 21 Correct? 22 A. From the combination of the common points in the two 23 clusters. Is that what you're suggesting? 24 Q. Yes. 25 A. Yes. page 34 1 Q. So if I look at the right-hand side of the screen where 2 my arrow is at 40, one could as easily write in as that 3 general area, that blob, 40/31/32? 4 A. Yes. 5 Q. Close by is the critical feature number 38, the Rosetta 6 characteristic? 7 A. Yes. 8 Q. It ought to be, therefore, if you look at page 11, it 9 ought to be in the vicinity of features 31 and 32 marked 10 but it isn't? 11 A. It's in the area where the distortion above the fault 12 line and it's basically cut-off in that area to the 13 right of, basically, 31 in that area. 14 Q. Have you thought about this before? 15 A. Sorry? 16 Q. Have you thought about this before? Is this new to you 17 that -- 18 A. No. 19 Q. Sorry? 20 A. No. 21 Q. Have you thought about it before? 22 A. Have I thought about it before? 23 Q. Yes. 24 A. Where in relationship, yes, I have. 25 Q. Can you explain then why two very small incipient page 35 1 ridges, 31 and 32, apparently appear in the print and 2 the more significant, more prominent feature, the 3 Rosetta characteristic, number 38, does not? 4 A. As I've said, it's right at the point of the fault line, 5 in the upper area above the fault line and it's cut off. 6 Q. It comes back to the question I had asked you in 7 relation to a point on page 12, if we bring back up 8 page 12. The point is that points 31 and 32 ought to be 9 on page 12? 10 A. If they were recorded, yes. 11 Q. But are not? 12 A. They aren't. 13 Q. Where on page 12 do we see in that ridge the ridge break 14 which you mark as 39 and 40? 15 A. There's no recording a ridge break on the police form at 16 that point. 17 Q. Accordingly -- and, again, because the police form 18 begins to taper out at this point the Rosetta 19 characteristic, you would say, is simply off to the 20 right? 21 A. It's basically if you look at point 28, the ridge 22 immediately below that flowing to the right, in fact, 23 the, should I say, the lower leg of that bifurcation, 24 28, will continue down there and form your crescent 25 shape and the ridge immediately below that just off the page 36 1 page is where the Rosetta characteristic is. 2 Q. What this actually ultimately comes to, Mr Mackenzie, is 3 to suggest to you in evidential terms there is at least 4 a question mark over the reliability of this particular 5 theory because what it depends upon is the use of an 6 inferior image which shows certain features not present 7 in the better police image? 8 A. The Rosetta characteristic, to explain, was the starting 9 point for a cluster, as I've illustrated basically above 10 that, that formed my conclusion. 11 As I say, the recording in the police form there 12 doesn't show that starting point. 13 Q. It doesn't show those features. 14 A. The small break in the recording in the police form is 15 not recorded as a break on the police form -- sorry, 16 recorded on the Internet copy and has not been recorded 17 on this occasion as a break in the ridge which may or 18 may not, again depending on inking and pressure, appear. 19 Whereas in the Internet copy the break is consistent 20 with what is in the mark adjacent to the Rosetta 21 characteristic. Hence the reason it was marked because 22 its presence there is consistent with being that area. 23 Q. If we look then at one of the Inquiry images, which I 24 have said to you is taken from the negative of the 25 original photograph, so it is taken from something that page 37 1 I can say is the first generation, albeit reproduced 2 here on computers. If we look at Mr Zeelenberg's FI0170 3 and I can give you -- I am just asking you be given the 4 photographic original, which is a first generation item. 5 (Handed) 6 I am going to highlight it for everybody else. The 7 only reason I keep returning to Mr Zeelenberg is that he 8 has a number that enables us with certainty to fix our 9 eye upon what you say is the Rosetta characteristic. 10 The Rosetta characteristic is number 14, yes? 11 A. Yes. 12 Q. The ridge below, if you look at the original, does not 13 have the break which is 39 and 40? 14 A. The right-hand image? 15 Q. Sorry? 16 A. The right-hand image? 17 Q. You are looking at the photograph of the inked 18 fingerprint of Ms McKie. 19 A. Correct. 20 Q. It does not have the ridge. 21 A. Correct. 22 Q. So, therefore, what I have come to call the blob, which 23 you interpret as two incipient ridges either side of a 24 ridge ending at a break, is not supported by this first 25 generation image. page 38 1 A. I think I've explained that with the double touch on 2 that part, that touch, that particular touch, where -- 3 Q. Mr Mackenzie, I am sorry, we must be at crossed 4 purposes. I am looking at Ms McKie's inked fingerprint. 5 A. Yes. 6 Q. Inked fingerprint. 7 A. Yes. 8 Q. The ridge below point 14, the Rosetta, does not have the 9 ridge break which includes your feature number 40? 10 A. Correct. 11 Q. Therefore, the blob that I have been describing, which 12 is the combination of two incipient ridges either side 13 of a ridge ending, number 40, does not exist in the 14 inked original on this image of Ms McKie that was part 15 of the examination in February 1997. 16 A. The ones marked as 39 and 40 as a break in the ridge, my 17 observation, doesn't appear on this inked copy. 18 Q. Therefore, the combination of two incipient ridges, 31 19 and 32, above and below a ridge break, number 40, is not 20 supported by this image? 21 A. No. The ones marked -- the ones around 40 are from the 22 separate touch, to the right of the touch that we've 23 been referring to as 39 and 40. 24 Q. Sorry, I am not understanding. How do you get a 25 separate touch when the police are taking an inked page 39 1 original? 2 A. Sorry, I'm referring to the mark. 3 Q. What I am asking you is that the feature which you are 4 discerning on the mark, we have not even looked at the 5 mark really so much -- we have been looking at the mark. 6 I will come back in a second. 7 I have been looking at all morning at the 8 fingerprint of Ms McKie. I've not looked at the mark. 9 The fingerprint of Ms McKie is where the crescent is. 10 I've not looked at the mark -- sorry, I will start 11 again. 12 A. Sorry, the fingerprints of Ms McKie is where the 13 crescent is, did you say? 14 Q. Mr Mackenzie, I'll start that point again. 15 You have open before you page 32 of your book. 16 A. Okay. 17 Q. You have an interpretation of Ms McKie's left thumb 18 where, if we start at the crescent, you have the Rosetta 19 characteristic, one ridge down, 39 and 40, we understand 20 that 40 has either side of it two incipient ridges, 31 21 and 32. 22 A. Not on page 32. 23 Q. That's one of the problems we have: not on page 32. 24 It's on page 26 that we see points 31 and 32. 31 and 32 25 are on page 26. page 40 1 A. Yes. 2 Q. Page 26 does not tell us that nestling between those two 3 points is point 40. 4 A. No. 5 Q. Page 26 does not also tell us to the left of them, the 6 blue circles, are 29 and 30. 7 A. No, but that is following on the sequence I explained 23 8 through to 30 and yesterday we omitted to move on to 31 9 and 32 in that part of the presentation. 10 This page, if I continued would have been in 11 continuity from the explanation of the first cluster 12 that I found and that's where the incipient ridges were 13 consistent on the mark in that first of the two touches 14 on the top before it went further anticlockwise. 15 Q. Mr Mackenzie, what I am trying to do here is this: 16 page 32 is you interpreting an inferior image. 17 A. It's not the same quality as the police form, no. 18 Q. In part one can demonstrate that by saying that you see 19 on the image, the inferior image, a break either side of 20 which are points 39 and 40 -- 21 A. Yes. 22 Q. -- not to be found on the police original that I have up 23 on the screen. 24 A. Correct. In that particular recording of Ms McKie's 25 print there's no break shown. page 41 1 Q. What this then comes to, the conclusion to this is: when 2 you have been interpreting Y7, have you been working 3 back from your interpretation of the inferior Internet 4 image -- so a picture drawn from the inferior Internet 5 image -- working back to Y7 to see if you could find 6 spots -- and I mean literally spots -- that might 7 correspond to the features that you have observed in the 8 inferior Internet image? 9 A. No. If what you're suggesting is that I looked at the 10 Internet image first and then went back the way, that's 11 not the case. It's this cluster, 38 to 45, was 12 obviously an area that I still had to establish after 13 having done 23 through to 32. As a result, I say, of 14 the Internet images becoming available, the 15 information-gathering stage or the target area, if you 16 wish, the cluster of -- not necessary at that point. I 17 wouldn't be claiming to say I saw a target area of eight 18 but certainly the Rosetta characteristic, the break 19 beside it and then following on from that, this cluster, 20 basically I established that on receipt of the Internet 21 copy. 22 So the process -- and I think I've explained it 23 already -- and that was why it's from 23 through to 30 24 ... sorry, 23 through to 31 ... no, sorry, 23 through to 25 30 on the right-hand against the police image, that was page 42 1 what I gleaned from the police form. I say before, you 2 could probably put this as my thought processes and this 3 was the procedure. I know that Iain(?) mentioned why 4 did they not put the other numbers, so I tried to 5 explain before that that was a separate confirmation for 6 me before I then was able to establish this other 7 cluster which then led me to the conclusion that this 8 was or confirmed my initial thoughts of the movement 9 within the top part of the mark. 10 Q. If I look at it from a different angle, if I look at the 11 image which is on the screen taken from the negative, in 12 fact, I think it's a scan, a scan of Ms McKie's prints 13 on 6th February, date stamped the 7th, I would not find 14 a ridge break in the ridge immediately below the Rosetta 15 characteristic? 16 A. There's no ridge break recorded there. 17 Q. Let us bring up then, again, pages 11 and 12 of your 18 booklet. Again, the clarity of your booklet is helpful. 19 We have the Rosetta characteristic marked by you as 20 point 38 -- 21 A. Correct. 22 Q. -- with an arrow to it. 23 Immediately below that, you have indicating that a 24 break exists in the print roughly where I've put the 25 second arrow, that is the arrow the tail of which goes page 43 1 down, it is an arrow almost pointing straight up, 39 and 2 40? 3 A. It's slightly above where your arrows are. 4 Q. If I look across to the police original form -- this is 5 a different version, as you say, this is 18th February 6 not the 6th, but a second police form -- I do not find 7 that ridge break because the key is to follow the ridge 8 which is intermediate between 29 and 30 because 31 and 9 32 are either side of the same ridge, I don't find that 10 ridge break? 11 A. I'm not quite sure where you're pointing to but -- 12 Q. 29 and 30 are two incipient ridges either side of the 13 same ridge, which further down it's path has the 14 incipient ridges, 31 and 32, either side of a ridge 15 break, 40, yes? 16 A. Okay. 17 Q. There is no break on that ridge in this image. 18 A. No and, again, at this stage using that police form it 19 wasn't until a later stage, as I said because of the 20 Internet one became available, that this further cluster 21 I was able to establish that and it was after -- 22 Q. Mr -- 23 A. Let me finish. 24 Q. I will just interrupt you, please. I am asking you 25 about the existence of a ridge break. It is not to be page 44 1 seen in either of the two police forms. 2 A. Correct. 3 Q. Therefore, if one compares either of the two police 4 forms with what you have drawn on Y7 as a ridge break, 5 39 and 40, far from a similarity, a point in common, we 6 would have a point of difference. 7 A ridge break exists on page 11 which does not exist 8 on page 12 and does not exist on the copy of Ms McKie's 9 print that the Inquiry has used for the comparative 10 exercise. It is a difference. 11 A. That particular segment of Y7 as what I assessed at the 12 time of that target area showed a break and there was no 13 correlation in my mind to actually look at the common 14 points eventually having identified the two clusters. 15 So there was no -- I was not looking for, obviously -- 16 well, there was no way, obviously, I was going to find a 17 ridge break in my initial analysis looking for this 18 cluster 23 through to 30 that's marked. 19 Q. Mr Mackenzie, as you sit in this hall, in the witness 20 box, you have told us that in Y7 a ridge break exists at 21 39 and 40. 22 A. In that segment of the mark. 23 Q. It does not exist on page 12. 24 A. Not in that recording. 25 Q. It does not exist on the comparative exercise image, the page 45 1 original of which you have to check, Mr Zeelenberg's 2 charting, the corresponding point, page 14. 3 A. Correct. 4 Q. So either you are correct about 39 and 40 on Y7 and it 5 is, therefore, a difference relative to these police 6 forms, yes? That is one possibility. 7 The alternative is that what you have actually done 8 is you have seen a feature in the inferior image from 9 the Internet and worked back to see if you can find a 10 corresponding feature? 11 A. No, no, absolutely not. You always assess the mark 12 first and the area you are looking for. That area was 13 an area that was still outstanding until such time as 14 the Internet stuff became available. So it was not a 15 matter of looking at the Internet and then going back 16 the way. That cluster and the supporting other 17 characteristics further up from that were an area that I 18 was still to establish. 19 Q. Can you explain this then to me, and I will finish at 20 this point: on the assumption that you are correct that 21 there is a ridge break, 39 and 40, can you explain what 22 the reliability is of saying that that is identical to a 23 corresponding feature in Ms McKie's fingerprint when you 24 cannot see it in the better police fingerprints and you 25 have to resort to an inferior Internet image that is at page 46 1 least a third generation copy? 2 A. It's not a matter of reverting to an inferior, the 3 material that became available from the Internet 4 provided a range of additional ridge -- sorry, ridge 5 detail that was not available, it's outwith what was 6 recorded on the police form and my target, as I've said, 7 in that area of the 38 to 45 in sequence and agreement 8 in that area and a separate touch on that touch, the way 9 that has recorded indicated to me there was a break. 10 Now, as I've said, individual touches, individual 11 recordings of prints can show differently. On that 12 particular segment, and where the mark was left it gave 13 me the indication there was a break. 14 I agree that within the police forms there's no 15 break at that point but the Internet copy was consistent 16 with my target area there and I say that and the Rosetta 17 characteristic, along with the other features -- not 18 just the Rosetta characteristic -- was enough to satisfy 19 me that there was a recording that was consistent with 20 that area. I'm still totally satisfied that that was 21 the explanation and it's two different touches and you 22 will get differences when ridge detail touches the 23 surface, whether it be a chance or by recording. 24 I think I'm actually being open and transparent in 25 explaining how I came to my independent assessment of page 47 1 this and that's all I can do. I'm only presenting it in 2 the order of how I did it. It was only once one cluster 3 was established and another cluster was established that 4 I then noted that three of them were common. 5 Q. Mr Mackenzie, I am not suggesting you are other than 6 open and transparent and I do recognise that. What we 7 are looking at on screen has existed for ten years. 8 This was something you prepared back in the last quarter 9 of 1999. I am not suggesting that you are anything 10 other than open and transparent. What I am asking you 11 is to discuss with me the justification. 12 What I will do is stop there, sir, because I 13 appreciate the time. I want to look at an alternative 14 view of this and ask you to comment on that. That would 15 be an appropriate point to adjourn? 16 THE CHAIRMAN: We will sit again at 11.50. 17 MR MOYNIHAN: If we could save the images. 18 THE CHAIRMAN: Maybe we should make it 11.55. 19 MISS BAHRAMI: It's FI0110.08. 20 (11.35 am) 21 (A short break) 22 (11.55 am) 23 MR MOYNIHAN: Mr Mackenzie, I am going to continue with the 24 Rosetta characteristic I trust not for too long. I have 25 two particular lines of question to put to you. page 48 1 The first one is this, just to backtrack: in 2 February 1997 when you were involved -- and we will look 3 at this shortly -- in two examinations of Y7 using 4 different images and different impressions of Ms McKie 5 on each of the two occasions -- 6 A. Correct. 7 Q. -- if I understand it correctly, the Rosetta 8 characteristic would have been observable in the images 9 of Y7 available to you and your colleagues at SCRO in 10 February 1997, on Y7? 11 A. Correct. 12 Q. That would have been, if one had understood Y7 as a 13 single touch, a point of difference between Y7 and 14 Ms McKie's fingerprint? 15 A. Absolutely. 16 Q. Therefore, that Rosetta characteristic required an 17 explanation in order to reach the conclusion that 18 Ms McKie's fingerprint was indeed Y7? 19 A. Absolutely and if I give my explanation for it, you said 20 to go back, we've already touched on this, I can't speak 21 for my colleagues because I don't know how they-- they 22 will give their evidence separately but all I can speak 23 is how I approached it, my assessment of the mark, and 24 from day 1, from 17th February '97, I was totally 25 satisfied that this mark had been subject to extreme page 49 1 movement, distortion, et cetera. I had taken cognisance 2 of the fault line as I have termed this white line 3 running across and that, from experience, and also 4 because we've seen these prints shown in various 5 orientations, if you can orientate it to actually about 6 45 degrees it actually jumps out at you and I apologise 7 if I'm using a pun but it stood out to me like a sore 8 thumb. That's the way it's going through my process. 9 From that assessment, I was satisfied that this was 10 more than one touch and, as I say, it got explained 11 again yesterday, my target area and my starting point 12 from my memory going back those years was from the core 13 area out to the right, taking cognisance of the fault 14 line and I satisfied myself with that and the assurance 15 in my mind that this was a more than one piece. Yes, 16 the Rosetta characteristic would have been there but it 17 didn't cause me any problems at that time in that the 18 quantity and quality of the information below the fault 19 line was more than sufficient to lead me to the 20 conclusions that it did then and the conclusions that I 21 have today. 22 Now, I've described this in the past as a very 23 complex mark. I'm quite sure later on in 24 cross-examination or other items in my evidence my 25 initial thoughts were that this is a very complex mark. page 50 1 You do, through many years of experience, come across 2 unusual and complex marks and this is actually one of 3 two in my career that stand out to me that were -- 4 basically required all my skills in the identification 5 process. I had not a shadow of a doubt at the time that 6 the quantity available to me in my initial comparison 7 allowed me to come to the conclusion that the donor of 8 this mark was Ms McKie. 9 Q. I want to break that down so I can understand it better. 10 Before I go back over your answer, I want to put in some 11 other bits of information. 12 The initial examination of Ms McKie's fingerprint by 13 you -- and I'll not ask about your colleagues, I will 14 concentrate on you because I will ask your colleagues 15 about this in due course -- you looked at Ms McKie's 16 fingerprints on 17th and 18th February 1997. 17 A. Correct. 18 Q. So far as the particular explanation that you have given 19 for the Rosetta characteristic today, that we have 20 discussed so far, that's an explanation that opened up 21 for you when you received the gift of the Internet 22 images? 23 A. Correct. 24 Q. That is possibly some time around about August -- 25 A. Mid-August 1999 or maybe -- I think actually it may be page 51 1 recorded, I think, about September time we were alerted 2 to material being on the Internet. 3 Q. The reason why I put that is that the particular 4 explanation that you have given in evidence today is one 5 that opened up to you two and a half years after your 6 original examination of Y7. 7 A. Correct. 8 Q. With that in mind, let's go back. I want to be clear 9 about your thought process. I will outline the 10 possibilities; I will not be exhaustive. The thought 11 process could be that in the bottom half of the mark 12 looked at alone there were enough points of similarity 13 to persuade you beyond doubt that the mark was 14 Ms McKie's. 15 A. Correct. 16 Q. Therefore, anything in the top half could be ignored 17 because you had already made up your mind there must be 18 an identity. That is one possibility but I will go 19 further. 20 The second possibility is that though there was 21 enough in the bottom part to identify as Ms McKie, there 22 was this point of difference in the top half, the 23 Rosetta characteristic, for which an explanation must 24 still be found. 25 A. At some point in time. page 52 1 Q. That explanation at some point in time could either be a 2 specific explanation (movement of one type or another), 3 or it could be an inferential one. In other words, it 4 could be that because there were so many other points of 5 similarity, this point of difference must be capable of 6 some unknown rationalisation. 7 Do you follow me? 8 A. Not the last part. I don't know what you mean by 9 unknown rationalisation. 10 Q. What I mean is that you may not have known exactly how 11 the Rosetta characteristic came to be different but if 12 everything else was the same, then the Rosetta 13 characteristic must be capable of some explanation but 14 you do not know what, but you just assume is what it 15 comes to, that the Rosetta characteristic is capable of 16 an innocent explanation because everything else is in 17 agreement but you simply don't know what that innocent 18 explanation is. 19 Do you understand my range of possibilities? 20 A. I say, it goes back to my initial assessment and from my 21 experience of looking at many thousands, probably 22 millions, of marks in my career that my assessment of 23 this going right back to the first time I actually 24 looked at it that it was a single finger in that area. 25 The extent of ridge detail there suggested it was likely page 53 1 to be a thumb. The distortion within it and I say 2 actually holding it at arm's length and this is right at 3 that moment in time from the initial original 4 photograph, led me to believe that there were more than 5 one touch involved quite distinctly and, again, it 6 depends on further down the line and we've seen images, 7 different contrasts, but quite distinctly and I say 8 actually tilting the image actually to about 45 degrees 9 on some of these pages, to me it stands out, as I said, 10 using the pun, like a sore thumb. But I was conscious 11 of the distortion within that and it was also in my own 12 mind sure that it was the other part would be from the 13 same person. I didn't consider within an area of where 14 this was taken the chances of it being another person 15 and I was confident that that would have been made by 16 the same digit from the same person but there was a 17 severe disruption, movement as eventually obviously as I 18 get material to analyse it in more detail then the 19 answers were there. But based on material available at 20 that given time of the initial comparison, I was 21 satisfied beyond any doubt that the area below the fault 22 line, which I observed -- I say I can't speak for 23 anybody else and you will ask other witnesses and I know 24 there's already been witnesses to the Inquiry that may 25 or may not or certainly haven't confirmed the existance page 54 1 of -- but I've tried to illustrate through my 2 presentation yesterday what I was seeing, that's been 3 backed up by the image from Kasey Wertheim and that was 4 where I established my analysis and that was the basis 5 for the start of my analysis and I was totally satisfied 6 on the 17th and also on the 18th. 7 I don't know what the differences were. I said 10 8 or 11 on the first day, 12 or 13 -- I couldn't recall 9 exactly which were the different characteristics but I 10 know there was marginally better and this image on the 11 right for me, although it's not a rolled impression, is 12 the best crisp image I've seen of Shirley McKie's left 13 thumb. 14 Q. Could I just put it as I understood it then. What you 15 are saying then is you were able to make an 16 identification on the area of the thumb below the fault 17 line on Y7? 18 A. Correct. 19 Q. So far as the area above the fault line and any 20 differences that there might have been in that area, at 21 the time you put them out of account because you 22 believed that area at the top of the thumb to be the 23 subject of distortion? 24 A. Absolutely. 25 Q. Even though on closer examination you would now say that page 55 1 the area above the fault line in Y7 is itself capable of 2 being matched to Shirley McKie independently? 3 A. And the reason for that is given the passage of time and 4 other contrast, various photographs, et cetera, because 5 you will have seen, the Inquiry has seen throughout the 6 various sessions, people referring to, I think right at 7 the beginning, of this area in the top left-hand corner 8 and some images being the black blob. The same term has 9 been used by Mr Findlay for something else but the black 10 blob when, in fact, with different contrasts, et cetera, 11 and having the opportunity to have these printed in 12 various contrasts, et cetera, actually does expose ridge 13 detail in that area. Whereas in some of the images it 14 just looks like a black circle and there's no detail in 15 it. 16 Q. Can I pick that point up. I am going to digress. It is 17 an important point. I will pick that point up but then 18 I will come back to what I was going to ask you. I am 19 digressing. 20 I understand fingerprints to be viewed as a highly 21 reliable means of identification because the features in 22 the finger are, barring injury, constant over time? 23 A. Other than injuries -- very deep scarring injuries can 24 sometimes remain but normal minor cuts, et cetera, 25 although at one period in time of recording may show page 56 1 scars, the tissues will repair themselves, unless it's a 2 deep-based scar, and the ridge detail will come back 3 exactly as it would be. 4 Q. So there is the element of constancy which is essential 5 to the reliability of fingerprints as a means of 6 identification, yes? 7 A. Yes. 8 Q. The dilemma that I would ask you to comment on is this: 9 if the theory is that fingerprints are a reliable means 10 of identification because of the constancy of the 11 feature, what is one to make of the fact that the 12 features will, in fact, vary indeed between one inked 13 impression and another and even in relation to the same 14 inked impression those features will vary one image with 15 another? So, in fact, the theory of constancy is, in 16 fact, to be seen as a practical input of almost infinite 17 variability? 18 A. There are definitely variabilities, one, in how the mark 19 has been left because chance impressions, just as the 20 word suggests, are what you get -- what is left is what 21 you get and it could be right up in the tip of a 22 particular digit or an edge, et cetera. It can be 23 distorted. It can be under different pressures and I've 24 illustrated in the presentation of how features, I think 25 probably we've described it, can change but there is an page 57 1 incidence happening of a ridge ending or a bifurcation, 2 although I think we covered it again this morning, that 3 there's one instance in Ms McKie's print where actually 4 ridges look like continuous, whereas on the inked print 5 there's a bifurcation, a ridge ending immediately below 6 it. It looks quite different. 7 This is why, again, I was explaining that to try and 8 put into the perception of other people possibly looking 9 at a small area like that on a mark and whatever control 10 print they're looking at could come to the wrong 11 conclusions. But it's not -- although one or two 12 features may change because of what you're left with and 13 then what's different in a control print, it's not just 14 down to the one or two features. That's where the 15 expertise comes in and the experience comes in, being 16 able to recognise that, and it's a variable of a number 17 of then characteristics. It wouldn't be just down to 18 one. You could actually have one or two characteristics 19 appearing slightly differently, but it's the sequence 20 and agreement with other features within the ridge 21 detail exposed that leads you to come to your 22 conclusions one way or another. 23 Q. What I want to do then is move this topic on. Just 24 before I do, I will also ask Miss Gilpin to look for 25 something for me. page 58 1 What I want to do, Mr Mackenzie, is go back to the 2 original theme of talking about the Rosetta 3 characteristic. This is the final chapter in relation 4 to that. 5 I want you to look at some material that 6 Mr Zeelenberg has provided. Again, some of it is of the 7 same history as your own presentation. I have it, 8 though, in a PowerPoint presentation from him in colour. 9 That is the reason for using this: it is a colour 10 version. AZ0058.79. Sir, it is also on our database as 11 AZ0048 but that is not on Trial Director so AZ0058.79. 12 You may recollect that the three numbers that you 13 said were the same -- and if I can find my notes, I will 14 get those numbers -- 26, 27, 28, 43, 44, 41 are the 15 numbers are the same. I will go back over it. 16 If I understand it correctly, Mr Zeelenberg himself 17 observed that some of the points you charted were, in 18 fact, duplicates and then he sought to put that forward 19 in a drawing. 20 If I take you back in Mr Zeelenberg's presentation 21 to page 75 -- 22 A. Sorry, can I ask when this presentation was? 23 Q. If give me just a second. I may not be able to answer 24 that directly. I have it as an appendix 6 to something 25 or other. I will make enquiries. page 59 1 A. The reason I ask is I've seen two presentations -- well, 2 I use the term loosely "presentations" -- but I've seen 3 two deliveries by Mr Zeelenberg, one at Tulliallan and 4 one at the Justice 1 and I don't recall -- it may have 5 been at Justice 1 but I'm not -- I don't recall the 6 first slide you showed me then. 7 Q. I will cause some enquiries to be made about that. 8 Appendix 6 is the other version of that document. I 9 cannot remember appendix 6 to what. It may be 10 appendix 6 to a response to the Justice 1 Committee but 11 I may be incorrect about that. 12 What is brought up on screen is, in fact, a draft of 13 Mr Zeelenberg's presentation to the Inquiry. I don't 14 know whether this slide existed any point back. 15 A. I've never seen this before. 16 Q. That's fine. 17 What you will see, by coincidence, is that 18 Mr Zeelenberg has himself observed that the points 26, 19 27 and 28 are duplicated in your charting also by 20 numbers 43, 44 and 41. So his understanding is the same 21 as your own. 22 Do you see that? 23 A. Okay. 24 Q. If I follow this -- and I may not because I have not 25 spoken to him about this so I don't know -- if I go page 60 1 back, though, if I follow this and go back to page 79 or 2 slide 79, do you see -- 3 A. Sorry, you showed me a slide there just before that that 4 seems to be familiar. 5 Q. We'll go back. 6 A. I would imagine this must have come from Justice 1. 7 THE CHAIRMAN: The date at the top is August 2000. 8 MR MOYNIHAN: So in fact, that would be -- 9 A. In 2000, if I could explain for the continuity of the 10 first time -- I don't know whether you've actually got 11 it on the system but the first time I was aware of 12 Mr Zeelenberg giving, as I say, loosely, a presentation, 13 was the same day that I delivered this presentation to 14 the inquiry that was ongoing at that time. 15 Q. If I can assist, Mr Mackenzie, and this may assist us in 16 following this, it has just been drawn to my attention, 17 in the bottom left corner is written "Tulliallan". 18 A. That's mine, yes. 19 Q. So you and Mr Zeelenberg and others attended a meeting 20 at Tulliallan about August 2000? 21 A. Mid-august 2000, yes. 22 Q. So, therefore, with the Chairman's assistance then of 23 that date, page 79 -- 24 A. No, that wasn't shown at Tulliallan. 25 Q. No, it may have been -- this is what we will check -- page 61 1 exhibit 6 as a response after Tulliallan, a response by 2 Mr Zeelenberg to your presentation and that would 3 explain why it was August 2000. 4 A. Okay. 5 Q. Again, please, do not take this as gospel from me. My 6 reading of this is that Mr Zeelenberg as observed an 7 overlap or duplication of the features, hence why he has 8 on the right-hand image at the top a red area. 9 A. Okay. 10 Q. With some features towards its right-hand side which 11 are, in fact, also within, is it magenta? 12 A. Okay. 13 Q. A magenta shape so they are common to the two? 14 A. Okay. 15 Q. He's also tried to plot some other areas: A is probably 16 the bulk of the features 1 to 22 on yours, if you look 17 at your page 11? 18 A. Sorry, where has he plotted 1 to 22? 19 Q. Bear in mind don't take this from me, just consider this 20 yourself. It would seem, if I look at your page 11, 21 your numbers 1 to 22 would seem to fall broadly within 22 the green box A? 23 A. There certainly are some features marked there. 24 Q. Then a cluster, 33 to 37, may be what he is trying to 25 depict by the yellow area E? page 62 1 A. It's in that approximate area. Without actually 2 studying it -- but certainly that's the area, yes. 3 Q. That's the approximate area. 4 We then move up and, of course, the critical one we 5 are going to track is the area B, which is this magenta 6 or mauve shape, which is of course the one that is going 7 to move. Some of the features are common to the red 8 area C. If I come back, the blue would seem to 9 comprehend the points 29 to 32 and perhaps some others? 10 A. Okay. 11 Q. C would seem to embrace, again very loosely, 23 to 28 12 round to perhaps 36 or so -- maybe not as far as 36? 13 A. No, 28. 14 Q. Okay, 23 to 28. What he is trying to then do, and there 15 is an area D in the middle, I'm not 100 per cent sure 16 which particular features, maybe that's 29 to 32. Maybe 17 D is 29 to 32. 18 A. Certainly 30 to -- sorry, 29 to 32, yes. 19 Q. Mr Mackenzie, I am being extremely slow on the uptake. 20 Mr Zeelenberg has actually marked it on the charts for 21 us and I apologise. He has clusters taken from, in 22 writing: A, 1 to 22; B 38 to 45; C, 23 to 28; D, 29 to 23 32; and E, 33 to 37. 24 A. Correct, yes. 25 Q. Do you accept that's roughly right? page 63 1 A. Yes. 2 Q. So far as that then is concerned, what he is depicting 3 graphically here -- and by that I mean by means of 4 graphic design -- is the area A (that is the points 1 to 5 22) remain largely in the same area, essentially in the 6 same area? 7 A. Yes. 8 Q. The points in E (that is 33 to 37) he suggests move 9 slightly anticlockwise? 10 A. Yes, that's consistent with me saying the swivelling. 11 Q. But then it would seem that on your interpretation, D, C 12 and B move down relative to A, in other words come in 13 closer proximity to A? 14 A. This is basically how he's illustrated it because he's 15 not taking account of this being in more than one piece. 16 Q. I think all he is doing is trying to account for where 17 the points are on your chart, ultimately. 18 A. You're relating them saying they are closer to A. All 19 I'm explaining is that that's because that piece is 20 completely separate from the lower half, just to 21 clarify. 22 Q. Completely separate but it has moved down, when Y7 is 23 deposited, if this is correct, it's moved down to be in 24 closer proximity to A. 25 A. If Mr Zeelenberg's perception is this is one piece, yes. page 64 1 Q. What about your interpretation? What do you say has 2 happened to these clusters? How have they moved? 3 A. Just to repeat what I've actually said earlier on, A, 4 from roughly the core area which we've discussed several 5 time, is roughly the centre of the axis of movement, if 6 you like, the initial -- I mean, all of these are 7 interpretations from any expert. I mean, the only way 8 we would have known is we were actually witnessing it 9 happening, but from my analysis and findings it would 10 appear to me that from the core area there's an area -- 11 or a movement in the axis starting in the core area and 12 a twisting anticlockwise, first of all, of the part 13 below the fault line, then the finger has lifted off and 14 the area which includes C, the red area, has touched 15 again with the numbers 24 through to 28 and then lifted 16 slightly off again, very marginally off again, and 17 moved, still consistently, anticlockwise and recorded 18 the area that has been shown or outlined here in B on 19 the mark. 20 Q. On the left-hand side? 21 A. On the left-hand side. 22 Q. What this is entailing is how many touches? 23 A. At least three. 24 Q. At least three. Because what must happen is that the 25 areas B, C and D must do more than simply move in page 65 1 unison -- 2 A. Sorry? 3 Q. The areas B, C and D? 4 A. D, delta? 5 Q. D for delta -- B for bravo, C for Charlie, D for 6 delta -- 7 A. Okay. 8 Q. -- must do more than move anticlockwise. 9 A. Sorry, are your saying Mr Zeelenberg's saying that 10 they've moved more than anticlockwise? 11 Q. No. First of all, Mr Zeelenberg is depicting something, 12 the explanation for which must be more than just that B, 13 C and D have moved anticlockwise. It must take more 14 than that to produce the eventual configuration that you 15 say is the case. 16 A. What I'm saying is it's not just the continuation of the 17 swivelling, the finger has lifted off, a minuscule 18 lifting off, causing the fault line, then the area of 19 characteristics highlit in C has been deposited and the 20 finger has been lifted off slightly again and the 21 continuation of the anticlockwise movement has deposited 22 area B. 23 Q. If we move it, though, in an anticlockwise direction, 24 the shape that is B would alter its orientation, would 25 it not? page 66 1 A. Sorry, could you repeat that? 2 Q. I will explain it to you. The edge of B, which I am 3 just about to indicate to you, as one rotates the shape 4 anticlockwise, would alter its orientation. Perhaps I 5 can just simply depict it. As it moves round, it moves 6 round 90 degrees, the line B would be something like -- 7 sorry, the shape would become something like so 8 (indicated) as it moves through 90 degrees. 9 Do you understand what I'm trying to draw, badly? 10 A. Yes. 11 Q. If it moves through 180 degrees, the shape would be like 12 so (indicated). We will swivel it in a moment. First 13 of all, let's save these images. 14 MISS BAHRAMI: That's FI0110.09. 15 MR MOYNIHAN: What I am going to do is start again with 16 AZ0058.79. This time what I am going to do is highlight 17 the image on the right. That is the undisturbed image. 18 If you could rotate that anticlockwise 90 degrees. 19 Do you see the shape now of B? 20 A. Sorry, which one? 21 Q. B for bravo, the top one. Do you see the shape? 22 A. Okay. 23 Q. The side edge -- 24 A. So what is this? 25 Q. Let us put an arrow so we know what we are always page 67 1 following. That had been the side, yes? The side edge? 2 A. Yes, okay. 3 Q. Right-side edge has now become the top? 4 A. Okay. 5 Q. Otherwise the configuration is pointing down, yes? 6 A. Okay. 7 Q. If we move it through another 90 degrees, the same 8 image -- 9 THE CHAIRMAN: Do you want to mark it at the various stages? 10 MR MOYNIHAN: Yes, sir. I perhaps should save that just in 11 case. 12 MISS BAHRAMI: That's FI0110.10. 13 MR MOYNIHAN: If we then move that image through another 14 90 degrees anticlockwise, we see now that the side I am 15 tracking that had started out as the right edge now 16 becomes the left edge and, indeed, as one would 17 understand as we have gone through 180 degrees, the 18 shape is turned upside down. 19 A. Yes. 20 Q. If we could just record that. 21 MISS BAHRAMI: That's FI0110.11. 22 MR MOYNIHAN: The way it works is not just with the sides 23 but, for example, the relative positions of the points. 24 For example, one could do the same exercise, the point 25 that was on the right-hand side number 45 at the top page 68 1 would, if it swivelled through 180 degrees, then be 2 found on the bottom of the cluster. 3 A. I'm afraid you've lost me, Mr Moynihan. Turning the 4 thing 180 degrees I am disorientated. I don't quite 5 take your point. 6 Q. Mr Mackenzie, this is perhaps the point. Do you have an 7 appreciation of how your points would line up through 8 the swivel that you're assuming if you turn something 9 through an axis relative to point A? 10 A. Relative to A? No, what I said was the swivel for the 11 characteristics in A started about the core area and 12 came round and, as I've actually proved, the swivel has 13 continued through to point the area 33 to 37, which is 14 also in sequence and agreement and that's all below the 15 fault line. The finger then lifts off so there's a 16 different axis, if you like, and this whole area which 17 I've explained to me stands out to me like a sore thumb, 18 this piece, separate piece, has then touched at least 19 once, recorded the characteristics 23 through to 28, 20 then lifted off very, very slightly and gone to the 21 left, again in an anticlockwise direction, and deposited 22 the area 38 to 45. 23 Q. Forgive me, because when you say things like "lifted up 24 and gone to the left" -- 25 A. The finger -- page 69 1 Q. It's okay. 2 A. I'm just trying to -- 3 Q. All you are actually saying is in lay terms it's moved 4 across. 5 A. Yes. It's not a straight up and down. There's a 6 turning and another lean -- 7 Q. But this is the point I am trying to ask you about. As 8 a matter of geometry -- geometry -- do you know what 9 would happen to the relative positions of these points 10 in a swivel? 11 A. All I can recount is the area I have found them in and 12 relating it back to the area that's been identified. As 13 far as measuring and geometry and so many degrees, I 14 have not done that. I've basically identified the 15 characteristics in that area. Others may have done and 16 I presume that's where you're heading, that someone has 17 said X number of degrees turn. That never entered my 18 head to actually record that. 19 Q. Mr Mackenzie, I am not even going to ask you about 20 66 degrees of rotation. We will try that with Mr Swann 21 who comes on Tuesday. 22 What I am asking you is, other than the proposition 23 that the points 38 to 45 started on the right of the 24 image and come to rest on the left, beyond that, can you 25 give me an explanation as to what physical movement has page 70 1 occurred to bring about that relocation of this 2 particular cluster of features? 3 A. I think I've already tried to explain but I say without 4 knowing, unless they were actually witnessing this print 5 being put on -- so it's my opinion from what I found of 6 the deposition on this mark that the bottom half has 7 been touched first with the axis area, if you like, 8 being round about the core; the thumb having moved, 9 swivelled as I have described it, on an anticlockwise 10 direction; the fault line is the major key to this and 11 is the red flag, as I said at the beginning of my 12 presentation, right through up to the cluster 33 to 37 13 contained within that all in sequence and agreement; 14 then the finger has lifted off the surface, touched 15 again at a slightly different angle, which has produced 16 23 to 28; then further lifted off and continued in its 17 anticlockwise direction and moved over, whatever 18 terminology you want, to move to the left marginally and 19 recorded 38 to 45. 20 Q. This is where we get into the geometrical question I'm 21 asking you, whether that involves an anticlockwise 22 movement and not a linear movement right to left? 23 A. My opinion it's an anticlockwise movement on deposition, 24 I say, but actually it is only an opinion and other 25 people will have their opinions. But if I'm asked, not page 71 1 being present when it was put on, then that's just from 2 my experience and from what I've found here. No-one, 3 unless they were a fly on the wall witnessing the finger 4 being put on, would actually know 100 per cent how this 5 had been put on. 6 Q. If i then, because I am getting a bit dizzy with the 7 impression upside down, we'll move it back to its 8 correct position, you will see now that the arrow is 9 going back with the side we have been tracking back on 10 the right. 11 What Mr Zeelenberg shows by this in the graphic 12 design, the graphic illustration, is the movement that 13 you are assuming in fact if one speaks of it in lay 14 terms, the area B has jumped over area D so it was to 15 the right of area D. It is now to the left, yes? 16 A. It's a separate placement area B from area C. 17 Q. It's moved, jumped over area D from the right to the 18 left and it's come down from being within area C to now 19 being below, adjacent to area C? 20 A. Correct. 21 Q. Again, as you look at the clusters, is that an unfair -- 22 again, one might argue about the precise lines to be 23 drawn. Is that a fair representation of the degrees of 24 touch and movement that you're depicting on your 25 page 11? page 72 1 A. I'm quite satisfied that that's my explanation of how 2 this mark was deposited. I think an earlier witness 3 spoke about running the ridges. It may have been 4 Mr Wertheim. I think that's a term from maybe 5 Mr Ashbaugh's course, from memory, but I will be 6 corrected if I am wrong but I think also within that 7 course they talked about jumping of the ridges. 8 Within this upper area I'm conscious of -- and it's 9 this thickening of the ridges and there has been 10 different interpretations of how the ridges would be 11 thicker or thinner, et cetera -- within that area, in my 12 initial assessment, and because I now know that's the 13 term that has been used on a course, I would suggest 14 that there's jumping of the ridges within that. In my 15 overall initial assessment of how this mark looked from 16 the start, that there was jumping of the ridges in there 17 which, until established by having material to establish 18 the actual sequence of characteristics, then it wasn't 19 until that became available that it was then proven that 20 it was incorrect, there was jumping of the ridges and 21 more than one touch in the top half. 22 Q. Again, to go back to the geometry, it would seem that 23 the ridges have jumped in a parallel manner because 24 there's no evidence of cross-over. 25 A. I take your point there. I think I've maybe switched on page 73 1 to, if you are talking about C and D, I said that it was 2 continuing in an anticlockwise manner. Certainly C 3 having gone anticlockwise has been deposited and then in 4 that same degree, if you like, the finger has moved over 5 at place B if that's, you know, basically the thought 6 processes on it. 7 Q. Mr Mackenzie, what I have been trying to think of is it 8 is like a jigsaw puzzle. C has been laid by someone 9 making this jigsaw. They then lifted out the part which 10 is B, they have left C behind and they've moved the part 11 B round and they've nestled it underneath C. That's 12 really what it's like. 13 A. Again, you have actually said to me, "Are you not 14 actually seeing -- you are looking at the control print 15 and then to the mark", basically the answer is in the 16 control print eventually but the mark is the mark and 17 that's the way it was laid down and I say I've tried to 18 explain how I think it was deposited based on the 19 characteristics that I've now established are 20 identified. 21 Q. I am sorry, just so that we are not at crossed purposes, 22 all I am trying to do is to see if there's anything more 23 underlying your opinion that the simple proposition that 24 what you see on the right of the Internet image of 25 Ms McKie comes to be, in your opinion, on the left of page 74 1 Y7, if there is anything more than that, you not knowing 2 what physical process results in the translation from 3 the right to the left. 4 A. No-one knows how that -- you know, as I say, that's my 5 opinion. Others will give their opinion but my opinion 6 is that that's how that mark was deposited. 7 Q. You see the other thing about the jumping of the ridges, 8 if I hold up my fingers, I have ridges running -- my 9 left hand, my right hand -- I have ridges running not 10 crossing and then I will then try, I'm not very good at 11 this, I'll turn the ridges of my right hand, swivel them 12 and I now get a crisscross pattern (indicated). Yes? 13 A. That's an example of -- you may see in some marks. 14 Q. You don't see in this mark? 15 A. No, because it's a minuscule -- although -- it's a 16 minuscule area and the movement and the thickening of 17 the ridges that's how it has been placed. It's not as 18 obvious as an extreme crisscross as you're suggesting. 19 Q. Mr Zeelenberg, you see, if we go through the same 20 presentation and begin at page 96 of his presentation -- 21 let us try it a little bit more elegantly than me and my 22 hands to depict the same process. 23 He is depicting here that if the prints have moved 24 in the manner you describe, you ought to expect to find 25 crisscrossing of ridges and it is suggested -- and this page 75 1 is all I am doing, putting it to you for your comment -- 2 that one does not see in Y7 the pattern of crisscrossing 3 that one might expect if movement such as you assume 4 has, in fact, taken place. 5 A. I would say this is -- I think you used the word 6 "suggestive" and to actually produce like a transparency 7 out of this is a form of suggestion and hopefully that's 8 all it is, is a possibility. But certainly 9 Mr Zeelenberg during the Justice 1 Committee, when he 10 invited himself back to give a presentation, came and 11 did a nearly identical ridge flow tracing as Pat 12 Wertheim had done at the time of Shirley McKie's trial 13 and I hadn't actually had the chance -- I don't know 14 whether it was recorded anywhere -- to actually compare 15 one with another. 16 Again that was another instance where there was a 17 suggestion being put as though it was fact and I can see 18 the theory behind suggesting this but all I can say is 19 that what I found in this mark and the angles there are 20 totally consistent with -- along with the 21 characteristics of what I found in Shirley McKie's mark. 22 I need to add that I've never seen this before 23 either, unless this was part of Justice 1, because a lot 24 of that there was so much put up in Justice 1 that was 25 never shown at Tulliallan. In fact, I don't know page 76 1 whether it's on your system or not but do you actually 2 have a recording of Mr Zeelenberg's presentation at 3 Tulliallan? 4 Q. Yes, I do. 5 A. You do. Basically not to dwell on that, what 6 Mr Zeelenberg produced at Tulliallan -- and I think I 7 actually described it at the Justice 1 and the only 8 comparison I could make to it is it was like a game of 9 battleships. He produced the mark of Pat Wertheim, the 10 one with the brush mark striations, whatever you want to 11 call it, on a laptop, suggested to the Tulliallan 12 meeting that that was the best image of Y7 available and 13 then showed this grid, like battleships, which I 14 actually have a copy of, which basically had letters 15 across the top A to K and down the side 1 to 13 and what 16 he was asking of us, the audience at Tulliallan, to 17 accept was if you put this grid over the mark Y7 and you 18 put a similar grid over Shirley McKie's left thumb, then 19 you would expect within particular squares to find that 20 characteristic in that exact point. 21 Never in my life have I seen any kind of training 22 establishment in fingerprints adopt such an approach and 23 actually within that grid on the mark Y7 is actually 24 shown, because I've actually sitting with it here, is D 25 delta 8 contains where the Rosetta characteristic is and page 77 1 the suggestion would be that because Mr Zeelenberg, his 2 opinion that this was one piece, if you put the same 3 grid over Ms McKie's mark, Ms McKie's left thumbprint, 4 then you would find the Rosetta characteristic in the 5 corresponding square and really the proposition of this 6 being a reality how you could actually compare 7 fingerprints I found absolutely outstanding and that was 8 the sum and substance of, visually, Mr Zeelenberg's 9 presentation at Tulliallan. 10 That then changed by the time we came to Justice 1. 11 Q. But the intermediate stage may be this: at Tulliallan -- 12 A. Sorry, could you -- 13 Q. The intermediate stage may be this: at Tulliallan he saw 14 your page 11, that he then went away and did work to try 15 to understand how the movement that you rely upon could 16 have occurred. So he gave it due deferential 17 consideration, trying to understand, if you were 18 correct, and he came up with the material, some of which 19 we have seen -- and I accept what I am displaying today 20 is his most recent version of that material so it may 21 not be what you have seen before -- but that is the 22 position. He has tried to understand your page 11 and 23 comes forward with this response. 24 A. Okay. Equally, I would need to say that since this was 25 produced in '99/2000 I have not gone away and done a page 78 1 further presentation or further examination. The amount 2 of time that was spent putting together this material as 3 it became available, the amount of analysis and 4 comparison time, which included -- to go back to my 5 opening remark -- these large enlargements which are 6 missing, which would have been very beneficial for the 7 Inquiry to have actually used in conjunction with the 8 presentation, is basically where there was a limit of 9 basically me recording my personal analysis of this mark 10 and this comparison. 11 I haven't had the benefit of and no-one has asked me 12 to go away and revisit the thing once again. I think 13 I'd more than done enough at the time and all I'm 14 putting to the Inquiry is -- and this is the first 15 opportunity, basically, in nine years to publicly 16 actually show how I came to my conclusions and if 17 Mr Zeelenberg and others over the years want to keep 18 adding to, then basically fair enough. 19 THE CHAIRMAN: Just going back shortly before this, if you 20 are correct and there were at least three touches and 21 the third one or one of them was a slight lifting of the 22 finger, would you expect any degree of disconnect 23 between the ridges when the finger was placed again on 24 the surface? 25 A. I think there is evidence within that upper area, I say, page 79 1 I've seen of jumping of the ridges, this thickening of 2 the ridges. Some people would explain it as just 3 pressure but I was conscious of that right from day 1. 4 I think eventually, as the material has become 5 available, then for me -- and I can only speak to 6 myself -- it confirmed that my initial thought process 7 was correct. All I can do for the Inquiry and anyone 8 asking me at any point is that, well, here's my 9 findings. If people have got other opinions, and we've 10 been told it is opinion, then that is my opinions and it 11 hasn't altered from 17th February '97 as to who the 12 donor of this print was. 13 THE CHAIRMAN: So that I get it correct, you would say that 14 there is some -- 15 A. Movement, yes. 16 THE CHAIRMAN: And some disconnect -- to use my phrase -- 17 A. Yes. 18 THE CHAIRMAN: -- between the ridges which would be 19 consistent with a slight -- 20 A. Very, very slightly. I mean, it's a very tiny area 21 where this print is on. Yes, the indications from me 22 from my initial looking at the mark cold was there was 23 this disconnection and in particular the fault line, as 24 you come close to that fault line that's where you can 25 actually start to see the movement. page 80 1 THE CHAIRMAN: Thank you. 2 MR MOYNIHAN: Mr Mackenzie, that was me going to conclude 3 with the analysis of Y7. Before I come later on to QI2 4 I wanted to interpose some of the historical points 5 relating to your work with Y7. I can be a bit quicker 6 with that given that we have, in fact, rehearsed some of 7 this already. 8 On 17th February you were asked to examine Y7 9 because even by then it was known to be in dispute by 10 Constable Cardwell, as she then was. 11 A. Sorry, could you just repeat the question? 12 Q. On 17th February when you were first asked to look at 13 Y7, even by then it was being disputed by Constable 14 Cardwell, as she then was, Ms McKie? 15 A. You said "even by then". Round about 4.00, from my 16 memory -- maybe a few minutes before 4.00, 3.50 or that 17 kind of area of time -- I recall that Chief Inspector 18 O'Neill had been asked to have the comparison looked at 19 again. So if that's what you're saying Ms McKie was 20 disputing it that's the first time that I knew of any 21 dispute relating to this case. 22 Q. When you first examined it you saw 10 or 11 points in 23 agreement in the lower part of the mark? 24 A. Correct. 25 Q. That would be sufficient for you at that point to make page 81 1 an elimination? 2 A. Correct. 3 Q. You could not have made an identification to the 4 16-point standard at that stage? 5 A. At that stage the number of characteristics I saw were 6 10 and 11 because I don't make any differentiation 7 between an elimination and an identification. My 8 analysis of the mark against that individual finger was 9 it was the same person. So I don't -- I wouldn't 10 differentiate between an elimination and an 11 identification. They are both the same thing. 12 Q. You would know that for evidential purposes, if this 13 mark were to be taken to court to make a case against a 14 suspect, now Ms McKie was not a suspect at this stage, 15 you would require to find 16 points? 16 A. It would depend on the case in question. It would 17 depend on any communication between us and the Fiscals' 18 Office, et cetera. It would not have been not 19 considered for going to court. 20 Q. Would it have been treated, if it had been 11 points 21 that you had found, that is the upper number, simply 22 instead of Ms McKie let's assume -- what I am ultimately 23 going to come to is Ms McKie starts out as simply a 24 police officer who has to be eliminated from a murder 25 inquiry. She ends up as a suspect and, indeed, more page 82 1 than a suspect, she ends up as an individual accused of 2 a charge of perjury based on this fingerprint evidence. 3 You would agree with me that by the time of the perjury 4 trial what is relevant is not whether her fingerprint 5 can be eliminated, what is relevant is that her 6 fingerprint can be identified. 7 A. This was a murder case and -- 8 Q. Mr Mackenzie, I am asking you from Ms McKie's 9 perspective, what had been originally an elimination of 10 her as a police officer with reason to have been in the 11 house -- legitimate or otherwise doesn't matter -- as a 12 police officer to have been in the house, she has been 13 eliminated in 1997. By 1998/1999 the landscape has 14 completely changed. She is now the accused, she has 15 been accused of perjury based on the fingerprint. 16 In 1998/1999, the question is can her fingerprint be 17 identified to prove that she was in the house contrary 18 to her denial? 19 A. Absolutely. 20 Q. In 1999 you have heard the Fiscals, who have given 21 evidence. Their understanding would have been that the 22 fingerprint evidence was being presented to the ordinary 23 rule, the 16-point standard, in Scotland? 24 A. I didn't have any communication with the Fiscal. I can 25 only presume that those who were presenting the evidence page 83 1 would have been presenting the evidence to the Fiscal 2 based on their findings. 3 Q. Did it ever in the course of the period from 4 February 1997 to May 1999, when Ms McKie was prosecuted, 5 occur to you, as the Senior Fingerprint Officer, that 6 what had started out as an elimination where you had 7 only 11 points was now being prosecuted as an 8 identification requiring 16 points? Did it ever occur 9 to you that that change had occurred? 10 A. Can I just clarify that the 16-point requirement, as you 11 say, is not a legal requirement. I think it's been 12 mentioned earlier in the Inquiry. The 16-point standard 13 is not a legal requirement. It comes out of initially 14 in 1953 an agreement between fingerprint practitioners 15 in the UK and the Home Office and it was guidelines in 16 departments we worked from. 17 There's many cases where there have been evidence 18 led with less than 16. So as far as -- if I was being 19 asked to produce that and prepare, given proper 20 materials and the time that I've now had to do this, 21 then I would have prepared on whatever findings I had 22 had based on the materials available to me. It 23 certainly never crossed my mind, if you're trying to 24 suggest there, that I should have suggested something to 25 the experts. I mean, I don't know to this day what each page 84 1 individual expert involved in that trial actually saw 2 within the mark. 3 Q. I appreciate it is just slightly after 1.00 but let us 4 just follow this through to a conclusion. 5 Whether it was a legal standard for 16 points, are 6 you disputing the proposition that the Procurators 7 Fiscal who were handling the preparation for the trial 8 had an understanding that the ordinary practice of 9 finding 16 points in sequence and agreement had been 10 met? 11 A. Like I say, I didn't have any discussions with the 12 Fiscal but I would understand that if the officers who 13 were preparing that case had any problems with what they 14 were going to -- and I presume that there were 15 discussions with the Fiscal as to what they would be 16 presenting so there must have been assurances given to 17 the Fiscal that what was being presented was, as you 18 say, to a 16-point standard. But certainly I had no 19 involvement in that. I wasn't aware of any dispute 20 about how many characteristics the other officers may 21 have found. I wasn't aware of anything. So whatever 22 they produced would be based -- 23 Q. You knew that you had only seen 11 on the first occasion 24 and 13. So you had seen a maximum of 13? 25 A. On my first comparisons. page 85 1 Q. As the Principal Fingerprint Officer in the Glasgow 2 department, did it not occur to you to question why a 3 prosecution was proceeding when you yourself had only 4 seen a maximum of 13 points in sequence and agreement? 5 A. It wouldn't be for me to articulate why a prosecution 6 was proceeding or not. After all material had been 7 received over whatever period, if it was me and I was 8 shown and all I could find was 11 or 13 or 15, then I 9 would have told the Fiscal that's what I could see. 10 Now, we've heard a lot within this Inquiry about 11 what's the difference between an identification and 12 elimination and I've actually heard in some quarters 13 people saying, "Well, if it's 15 you can't disclose it 14 but 16 you can." Now the Evett & Williams report, for 15 example, one thing that struck me about the Evett & 16 Williams report was that they did put in materials and 17 looked at the identification process of various 18 individual experts and viewers, et cetera, and the one 19 striking thing I remember from the Evett & Williams 20 report was that there were very few 15-point 21 identifications found. 22 From a practical point of view working within a 23 bureau to try and differentiate -- that's why I say an 24 elimination and a suspect identification is not any 25 different. It's still an identification. I've heard it page 86 1 put by some people that if it doesn't reach 15 -- and 2 this is even suggested, like, for eliminations -- then 3 you couldn't eliminate. In practical terms, if you take 4 it to the extreme as in a murder case with, say, 400 5 marks, would we say then that if there were 20 or 30 6 marks that reached 15 we would leave them live within 7 that case giving the impression to the investigating 8 officers or to the prosecutors that there were 15 9 outstanding impressions remaining in that case, whereby 10 we actually would know that these marks were eliminated. 11 This subject of, you know, how many points do you 12 need to eliminate is a red herring, to be quite honest. 13 MR MOYNIHAN: Sir, with an apology for overrunning, that 14 would a point to adjourn. 15 THE CHAIRMAN: We will sit again at 2.05. There is no need 16 to save this particular image, is there? 17 MR MOYNIHAN: No, sir. It is unchanged. 18 (1.05 pm) 19 (Luncheon Adjournment) 20 (2.00 pm) 21 ROBERT HARVEY MACKENZIE (continued) 22 Further examined by MR MOYNIHAN 23 THE CHAIRMAN: I am sorry, I gave a confused message about 24 the time we would sit again but everyone is here so I 25 think we can commence. page 87 1 MR MOYNIHAN: Mr Mackenzie, before the adjournment I had 2 been asking you about the historical position back in 3 1997 and we were talking about eliminations, 4 identifications and the 16-point standard. 5 If I could have brought up, please, on the screen 6 part of your statement and your statement is FI0046 and 7 if I can go within that, please, to pages 37 and 38 -- 8 THE CHAIRMAN: Do you have the paragraph number? 9 MR MOYNIHAN: Yes, sir. It begins at 136. Page 37 will be 10 136. It is FI0046. 11 I am going to be asking you in a moment about the 12 blind test that was carried out. What I want to do is 13 to begin with a slightly different point. It is 14 paragraph 138. I will just highlight that for you just 15 now. I will give you a chance to read it and everyone 16 else. (Pause) 17 Mr Mackenzie, what this says -- and I appreciate 18 that this is a statement that was taken from you by the 19 Inquiry team but nonetheless it speaks of the blind test 20 being an elimination comparison and the officers who 21 participated being asked whether they would eliminate 22 the mark. 23 Before lunch what I was asking you were a number of 24 questions suggesting a distinction between an 25 elimination on the one hand and an identification on the page 88 1 other. 2 I understood you to say there was no such 3 distinction; whereas this paragraph suggests that there 4 is a distinction and it was understood to be a 5 distinction by fingerprint practitioners in the Scottish 6 Criminal Record Office in Glasgow in 1997. 7 Would you care to comment, please? 8 A. In general or on this particular -- 9 Q. In general, first of all. Was there to fingerprint 10 practitioners a distinction between an elimination on 11 the one hand and an identification to meet the 16-point 12 standard for court purposes on the other? 13 A. An elimination would basically be to whatever number of 14 characteristics the officer was satisfied with to 15 exclude that person from further comparison. 16 As far as a mark for court was concerned, that could 17 vary between, if it was a sequence of fingers, 10 and 10 18 would be acceptable. If it was one finger, then another 19 proposition put forward in the standard is that they 20 wouldn't obviously go more than 16, it would be; unusual 21 to actually produce anything at court normally with more 22 than 16, but as far as a differentiation between the 23 comparison and actually identifying the individual there 24 would be no difference. 25 Q. No difference? page 89 1 A. No. 2 Q. Why then was it that those who participated in the 3 so-called blind test on the night of 17th February were 4 instructed to carry out an elimination comparison? Why 5 were they not simply asked to carry out a comparison? 6 A. Going back to that time, basically I think that was just 7 the minimal information that was to say to be imparted. 8 I don't think there was any motive in it if that's 9 what's -- 10 Q. I'm not suggesting a motive, Mr Mackenzie. I'm not 11 suggesting a motive at all. It's simply the task that 12 they were asked to carry out. What is suggested here is 13 that the task you were asked to carry out was an 14 elimination comparison? 15 A. Basically, it was obviously, I say, the suggestion was 16 to do a comparison and come back with the results but, I 17 say, whether it be an elimination or otherwise, going 18 back in time I can't remember why. 19 I think because of probably what was said there is 20 it had been anonymous and with any test material we 21 anonymise it to, like, a mark and to an individual, if 22 it's from real material. So obviously, this being a 23 blind test, or said to be a blind test, was that the 24 material would be contained on this comparator machine 25 with no other information and the other information at page 90 1 the side at that time was basically to say, if you like, 2 at the end of the day would you identify that or 3 eliminate this and the term was put, "Would you 4 eliminate this?" As to restricting any information in 5 what they had to do, that's what was decided on the 6 night. 7 Q. Mr Mackenzie, are you suggesting that it's a distinction 8 without a difference, whether one calls it an 9 elimination or an identification? 10 A. Obviously this, I say, was a complex mark and had been 11 recognised as such. Again, that would be a reason for 12 actually choosing it as potential for a test, as test 13 material, and a really good test which it's actually, 14 it's obviously turned out to, like, after all these 15 years it's been proven to be a test of experts' skills 16 and it's basically not to put any restrictions, I would 17 presume, on the officers who, in other words, basically 18 tell us, you know, one against the other what your 19 opinion would be without any restrictions saying you 20 have to find 16 or whatever. 21 I'm trying to think back how that would have 22 happened but that would be my current thinking on it. 23 Q. Before I get myself into trouble with the Inquiry team, 24 I should, about this statement, just ask you this: you 25 did give us a lengthy statement for which I am grateful. page 91 1 Are you still now satisfied that what is in your 2 statement to the Inquiry is, as far as you understand 3 it, the true position? 4 A. In its entirety? 5 Q. Yes. 6 A. There was a point I think I mentioned to Mr Holmes that 7 I briefly went through a few pages a few nights ago and 8 there was one point where I had been referring back to 9 joint reports and I think I said from 1967 onwards and I 10 think joint reports came out about 1980. So it's a wee 11 technical point. We moved from statements to joint 12 reports in 1980 and I think it was in the context of 13 talking about how do they now do it for non-numeric. So 14 that jumped out at me and I thought that's not right. 15 That's the only thing I can think of. 16 Q. What I want to do then is to ask you a little bit to 17 follow on from what you said about the purpose of the 18 blind test. 19 So far as the purpose of the blind test, what you 20 have said in paragraph 136 -- I will now take away the 21 highlight, I don't think we need to record the 22 highlighting, the highlighting on the whole of 23 paragraph 138 -- you indicate in paragraph 136 that on 24 the night of 17th February after you carried out your 25 own examination of Y7 information was communicated to page 92 1 Chief Inspector O'Neill and you say it was a complex 2 mark and then you say in paragraph 137, in effect, a 3 decision was taken to use this as a test example 4 effectively put to staff that evening. 5 A. That's correct. 6 Q. Your colleague, Mr Dunbar, if I take down your statement 7 and show you Mr Dunbar -- FI0053.26 -- in paragraphs -- 8 A. What am I looking at? 9 Q. If you begin under the heading "Blind test", read 10 paragraphs 123 down to 127. (Pause) 11 A. It's not how I recall. First of all, if I could start 12 with paragraph 123, that unless, outwith the actual 13 Bureau when I was in it at that time, I wasn't aware 14 Chief Superintendent Ferry was actually present that 15 day. The first I was aware of any discussion on the 16 subject with Mr Ferry was on the Tuesday, the 18th. So, 17 unless there was some other discussion that I wasn't 18 aware of, I'm nearly certain that Mr Ferry wasn't 19 present on the Monday. 20 I'm not aware of Mr Dunbar having opposition to the 21 exercise. I'm not aware of actually Chief Inspector 22 O'Neill having suggested we should have a blind test 23 either. I certainly, from my own personal perspective, 24 remember noting and probably I would have, in my results 25 given to Chief Inspector O'Neill, I would have highlit page 93 1 that it was a highly complex mark because that was how I 2 saw it on that first occasion, which -- if that's 3 recorded anywhere, but certainly that was my take on it. 4 In line with, as I think I've said, we actually 5 encouraged officers within the department, if they came 6 across marks which were complex in nature, they may be 7 give them forward for training purposes and that's how 8 we actually built up a database or collection of marks 9 for tests. 10 How exactly it came about, certainly that's not my 11 recollection, certainly I don't think Hugh Ferry was 12 there. Chief Inspector O'Neill was there. I do know 13 that after I gave my -- my understanding is that after I 14 gave my result of the comparison to Chief Inspector 15 O'Neill and after Alan Dunbar at whatever juncture, he 16 gave his result to Chief Inspector O'Neill, that that 17 part of the proceedings, that was it. The 18 identification was confirmed to Kilmarnock Police Office 19 at that point. 20 As to the exercise, what I mean by that solely as an 21 opportunity to basically get other experts involved in 22 looking purely as a test scenario, nothing to do with 23 the result that had already been relayed. Certainly, my 24 recollection is different from what Mr Dunbar's saying 25 here. page 94 1 Q. Could you explain to me what the purpose was that night 2 of getting whoever was on duty, however many, six or so 3 perhaps -- I do not know how many -- to actually subject 4 themselves to a test? What was the purpose of doing it 5 there, an impromptu test with no notice? 6 A. I say, really from my recollection of events how SCRO 7 had actually been at the forefront of introducing 8 competency tests since 1995, ahead of anywhere in the 9 UK. I had also introduced dip sampling and the third 10 element was blind testing and up to that point we 11 probably hadn't -- well, we hadn't introduced any blind 12 testing because I know that some of the laboratories and 13 things like that, their idea of a blind test is that you 14 make up a case and you put it anonymously into a system. 15 We never entertained going down that line. But as far 16 as actually a comparison without any knowledge of the 17 whereabouts of a mark and the donor of a print, then 18 this particular instance, for whatever -- a decision, 19 I'd be party to that decision because there only was 20 myself from memory, Alan Dunbar and Chief Inspector 21 O'Neill in the Bureau that would be party to starting 22 that. Chief Inspector O'Neill went home up at the back 23 of 6.00 and in that time-frame, it wasn't a big 24 time-frame between 6.00 and 8.00 at night. Officers 25 from the availability on that shift were taken randomly, page 95 1 as far as I understand. There would have been a staff 2 shift list for that night and it was decided to, rather 3 than have it in the main body of the hall -- and this is 4 why I'm thinking about Superintendent Ferry -- certainly 5 at that time, at 6.00 at night, there was a spare room 6 and it was the Chief Superintendent's room and it was a 7 quiet area, take the comparator machine in there and to 8 keep it anonymous put it on the comparator machine. And 9 that was the rough structure that was set out. 10 I say, I don't recall Mr Ferry being there and for 11 whatever reason but nothing to do with in any way the 12 earlier information that had been imparted back to 13 Kilmarnock Police Office. As far as I'm concerned, it 14 was a line in the sand that I personally have thought 15 about this because I've heard -- I can read the 16 inferences that have been made in certain quarters and 17 that's actually turned into information that's been put 18 to, say, the Court of Session in papers along with other 19 inferences, that I put myself in a hypothetical position 20 of saying why would I agree to setting up a test if I 21 had any doubts whatsoever about this identification that 22 I'd already imparted to the Chief Inspector? Why would 23 I, you know, then ask other officers to basically -- or 24 the potential of -- come up with other findings? That's 25 the hypothetical position because the thought process is page 96 1 years later, I'm going I wouldn't have put myself in 2 that position. It may well be me, because I've been 3 instrumental in bringing in competency tests and 4 bringing in the audit thing and certainly I knew from 5 the first minute, the first assessment of that mark, how 6 complex it was. Yes, I would have had an input in 7 saying, as I say, this is a good opportunity but 8 completely divorced from the information stage that had 9 gone to Kilmarnock Police Office. 10 If I had had any doubts in my mind, I wouldn't have 11 been setting myself up for a different decision. That's 12 just my thought processes in the years after. So the 13 event happened and, as I say, I think it's been proven 14 that if any mark was suitable for a test, then this 15 mark, in the history of fingerprints, is obviously 16 because basically a lot of experts have actually failed 17 to properly analyse this mark. So I don't think, at the 18 end of the day, the decision to use it in a test 19 scenario was wrong. It's obviously proven to be 20 material that's an extremely good test and, other than 21 what happened that night, that's my recollection of it. 22 I certainly have no recollection at all of Hugh Ferry 23 being there. 24 Q. I will move on to the next day, the 18th. You have 25 covered that in your statement and you have covered it page 97 1 to some extent in your evidence already. Having 2 re-examined the material that became available on 18th, 3 your view was there were 12 or 13 points in agreement in 4 Y7. Let us take the upper number for the sake of 5 convenience, 13. 6 What I want to do is carry that forward. Would that 7 be the largest number of points in sequence and 8 agreement that you had found prior to the exercise we 9 spent so much time this morning talked about in August 10 or so 2000 for the presentation you have shown us? 11 A. At that moment in time, using actual size print and a 12 comparator, no photographic enlargements being obtained, 13 et cetera, which obviously has allowed further more 14 in-depth study, then at that moment in time I again 15 satisfied myself and, I say, from memory and, I say I 16 think my memory is actually quite good because that is 17 what I've stated before the Court of Session, that my 18 memory at that moment in time was it was about two 19 characteristics more than what I'd seen the day before. 20 So that's why I said it was 10 or 11 or 12 or 13. So 21 there was potentially two more. There was something 22 clearer in it but I couldn't hand on heart say that was 23 the two points or whatever. 24 Q. What I want to do is move on with the implications of 25 that. 13 points in sequence and agreement, assuming no page 98 1 unexplained difference, would be enough to eliminate 2 someone, whether a suspect or a bystander. It would be 3 enough to eliminate them, yes? 4 A. Yes. 5 Q. At that time, barring some exception being made, it 6 would not be enough to use as the basis of 7 identification in a prosecution? 8 A. I think that would be down to the Fiscal, at the end of 9 the day. 10 Q. That's what brings us to that. It would be down to the 11 Fiscal. So you would require to report to the Fiscal 12 that not more than 13 points had been found and the 13 Fiscal would require to consider whether there would be 14 a prosecution, despite the fact that the national 15 standard of 16 had not been met. 16 A. Based on the material I saw on that day and when you go 17 down the scenario of -- because obviously there was 18 arrest prints, et cetera, in a case in general, then for 19 preparation for court then you would be using whatever, 20 again, materials at that moment in time you had. 21 If it had been myself that was involved with that 22 and the material that I had disclosed more -- for 23 example, the Internet image showed me that cluster of 24 five which eventually showed the ridgeology detail -- if 25 I had a form that showed that amount of detail, then page 99 1 that would have provided -- that alone would have 2 provided me with more characteristics, if it had been 3 me. 4 I don't know what material the officers or I don't 5 know what material -- sorry, I don't know what 6 characteristics the other officers in this case found 7 and I'm also not aware of any problems having been 8 highlit for what they were asked to prepare for the 9 Fiscal. So I don't know what discussions went on with 10 the Fiscal; I don't know what number of characteristics 11 they found, but as I said before, if I had whatever 12 number I had, and you mentioned about this being a 13 criminal case, then I personally would have been telling 14 the Fiscal, "From this material available I have now I 15 can't reach 16 but I can tell you that I have X number 16 of characteristics". 17 Do I read into it there's some inference being made 18 here that -- 19 Q. Don't worry about reading things in. Just answer the 20 questions and l will come to the point shortly. 21 You were, at that time, the Assistant Chief 22 Fingerprint Officer in the Glasgow Bureau? 23 A. Correct. 24 Q. In fact, that is a bit of a misnomer because the Chief 25 Fingerprint Officer was a police officer? page 100 1 A. It was a chief Inspector who was the head of the Bureau 2 but I think, looking ahead, they may have expected in 3 future years to have a chief fingerprint officer. 4 Q. So, in other words, the police officer was the titular 5 head, you as the Assistant Chief Fingerprint Officer, 6 you were in reality the Chief Fingerprint Officer in the 7 Department? 8 A. The most Senior Fingerprint Officer in the Department, 9 yes. 10 Q. You looked at it and in February 1997 what you had seen 11 was more than ample to justify that Ms McKie should be 12 eliminated as the source of Y7 in the run-up to the 13 Asbury murder trial? 14 A. Absolutely. 15 Q. Could we then look at the period, let us say, one year 16 later, March 1998. The Crown Office is now preparing 17 for phase 2, preparing to prosecute Ms McKie for perjury 18 based on that fingerprint. 19 Did you, as the Assistant Chief Fingerprint Officer, 20 give consideration to whether what you had observed in 21 February 1997 as 13 points was a sufficient basis upon 22 which she should be prosecuted for perjury? 23 A. I don't think -- it certainly wasn't my decision to -- 24 and again not having any involvement with the Asbury 25 case and I think one followed on from the other, I page 101 1 wasn't aware of any difficulty with Shirley McKie's mark 2 being highlit in the first case. 3 Q. Why was there not disclosure made to the Procurator 4 Fiscal that the senior management (that is yourself and 5 Mr Dunbar) had been unable to find 16 points but had 6 found a lower number consistent with an elimination? 7 A. It's something I personally never have considered, that 8 as far as the ... as far as the identity was concerned 9 of the individual, as far as I'm concerned that was it 10 and not making a differentiation between a number of 11 characteristics. 12 As far as the identity of the donor was concerned, I 13 had no doubt so I had no reason to question or think 14 that I should then interfere with a process that was 15 ongoing with officers and the preparation of court 16 cases. 17 Q. But you do accept that your department would have a 18 duty, a responsibility, to report fully to the 19 prosecution authorities what the findings had been of 20 the fingerprint comparison? 21 A. We did. We did inform the result of the comparisons 22 that the mark was found to be Shirley McKie's. 23 Q. But what they reported was that four officers had found 24 16 points in sequence and agreement. What the 25 prosecution authorities were not told was that a number page 102 1 of other officers who had looked at the mark, while they 2 may have been prepared to agree with the result, were 3 unable to find the 16, had in fact on your case found 4 only 13 and in the case of Mr Geddes had found only 10 5 and Mr Geddes went further. Having been demonstrated 6 the extra six or so by Mr Macpherson was in a position 7 to say he, as an expert, could not see those extra 8 points. 9 Why was that not reported to the prosecution 10 authorities? 11 A. I wasn't aware of what you're saying about Mr Geddes and 12 Mr Macpherson. I was not appraised of that whatsoever. 13 It's only in later inquiries, et cetera, I've learned of 14 that. I wasn't aware of that. 15 Q. By the time of the prosecution of Ms McKie in May 1999, 16 you and Mr Dunbar had, in fact, been witnesses in the 17 English Court of Appeal in the case of MacNamee? 18 A. Correct. 19 Q. In MacNamee, as in Ms McKie's case, a substantial number 20 of experts gave evidence to court? 21 A. That's correct. 22 Q. There was a difference of opinion, even among those who 23 agreed the identification, as to the number of points in 24 agreement? 25 A. Correct. page 103 1 Q. There were some experts, including Mr Swann, who 2 disputed the identification? 3 A. Yes. If you allow me at the at the end of your question 4 I will clarify a lot of issues round there but, yes -- 5 Q. If I finish then. In December 1998 the Court of Appeal 6 acquitted Mr MacNamee because the Court could not reach 7 a conclusion given the disparate views of the 8 Fingerprint Officers. 9 A. Correct. 10 Q. That was known by December 1998? 11 A. Yes. 12 Q. Now, what I am going to suggest -- and it may be the 13 basis for you to intervene -- so if I add in the next 14 part, that in the run-up, in the few days before 15 Ms McKie's trial began, it became known to Mr Macpherson 16 and Mr Stewart perhaps or others, maybe Ms McBride or 17 Mr McKenna -- I don't know precisely which one -- it 18 became known to them that American experts were going to 19 be called to give evidence. It became known to them 20 that the American experts were going to dispute the 21 identification. 22 Did anyone come to you as the Assistant Chief 23 Fingerprint Officer and say to you, "Mr Mackenzie, 24 there's now going to be a contested identification in 25 the Ms McKie case"? page 104 1 A. At no time. Sorry, could I qualify that answer as well. 2 The only indication I got from my understanding of 3 events -- and I say I think my memory's quite good -- 4 that I think there was an adjournment of possibly a 5 week, five days or whatever, from when I think 6 Mr Wertheim was meant to appear and the first I learned 7 was I'm sure there was actually publicity in the paper 8 of this and I'm sure actually Mr Findlay, it was 9 actually in the paper inferring there was going to be 10 some challenge but nobody came to me or there was no 11 suggestions of the Fiscals or consulting with the Head 12 of the Bureau or whatever and it was virtually at the 13 last minute, as far as I knew the trial was starting, 14 there was an adjournment and that's the only indication 15 I remember of -- the first indication there was going to 16 be some kind of challenge. 17 Q. Is there not a sense of deja vu that here was a 18 challenge so shortly after the MacNamee case? 19 A. I didn't link -- I mean, I would like to come back to 20 the MacNamee case in a minute. Don't let me forget 21 that. 22 But, no, I certainly never made any link to the 23 MacNamee case but in my wider answer I'll go on to 24 actually talk about more detail of MacNamee. But, no, I 25 didn't make any connection and, again, I don't know page 105 1 where this line of questioning is coming from but the 2 answer straight answer is, no, I didn't make 3 any connection with MacNamee case. 4 Q. Because you heard much of the evidence in the Inquiry, 5 haven't you? You have heard much of the evidence -- 6 A. Yes. 7 Q. You have heard the two Procurator Fiscals, Ms Climie and 8 Mrs Greaves, give evidence. They had at some stage 9 enquired to the prosecution of Ms McKie contemplated 10 bringing in an English expert to reconsider the prints. 11 For reasons that are perhaps lost now, it was decided 12 not to bring in an English expert. 13 If I understand their evidence correctly, they did 14 not know of the range of view within the Scottish 15 Criminal Record Office about the number of points that 16 could be observed in Y7 and they did not know that some 17 Fingerprint Officers were unable to satisfy the 16-point 18 standard. 19 If I get the drift of what they were saying, they 20 would have been very interested to have known that some 21 officers in the Scottish Criminal Record Office could 22 not agree that 16 points were present. 23 That is the import of this, nothing improper. I am 24 just suggesting to you that it would have been 25 beneficial had the range of opinion on the number of page 106 1 characteristics been, in fact, communicated to the 2 prosecution authorities. 3 Do you want to comment on that proposition? 4 A. As you say, I've heard that earlier evidence and 5 basically because I knew personally of the 6 identification, be it 13, whatever number of points, 7 then I never considered it. It's only from allegations 8 and things that have been in the media, et cetera, and 9 then now coming from procurator fiscals, et cetera, 10 there was no, to my knowledge and certainly personally, 11 there was no communication with me about possibly 12 bringing in other experts or who could we bring in or -- 13 obviously, the Procurator Fiscal prepares their case and 14 certainly I'm not aware of being asked to take part in 15 any discussions. 16 I think there was some evidence of some meetings 17 with Mr Macpherson or Mr Stewart or whatever but from a 18 personal point of view as the Senior Fingerprint Officer 19 in the Bureau I was not made aware of any problems, 20 pitfalls, discussions about, you know, could we get 21 other opinions, et cetera, and it never crossed my mind 22 to -- I wouldn't have been interfering in the process 23 that was going on. 24 There were officers dealing with it, they were 25 obviously satisfied with the identification, what they page 107 1 saw initially when they saw it and what they produced in 2 court they will obviously give their evidence. All I 3 can say is that I satisfied myself, be it at that stage 4 on 13 characteristics. Obviously, given the opportunity 5 to look at other materials down the line it still 6 confirms to me that my decision-making was correct, but, 7 again, I get back to reading into there's obviously some 8 kind of inferences being made against me and I'm not 9 comfortable with that. 10 THE CHAIRMAN: I think we are just trying to establish the 11 fact. But the point was that you were satisfied you had 12 made the identification. Whether it was to 16 points or 13 not, as a fingerprint expert it was an identification so 14 that if your colleagues were giving evidence of an 15 identification, perhaps to 16 points, what they were 16 doing was really the same as you in the sense that -- 17 A. Can we -- the conclusion they came to -- 18 THE CHAIRMAN: -- it was an identification and it would have 19 been a totally different matter if you had failed to 20 make an identification and they were making one. 21 A. Absolutely differently and, again, if I can touch on the 22 blind test before we come back to MacNamee if you don't 23 mind, that a lot has been put into the media, a lot of 24 information and I would say spurious false allegations 25 made in submissions to the Court of Session inferring page 108 1 that officers did not agree or the inference was that 2 people were saying it wasn't a identification. At no 3 time and 'Ive said that in my statement, at no time in 4 1997 or to this present day am I aware of any 5 Fingerprint Officer coming to me and saying, "I don't 6 think that's Shirley McKie's", but obviously there's a 7 very limited number of people have actually looked at 8 the original material. But I take exception to the 9 false allegations and actually been putting forward in 10 averments to the court inferring that we had knowledge, 11 that's to say Alan Dunbar and myself, that officers 12 didn't think this was Shirley McKie's mark. At no time 13 was that the case and I need to clarify that. It's in 14 my statement. 15 My memory of all these events and I say it's going 16 back that time, now I'm actually annoyed with myself, 17 particularly, obviously, just round about that period. 18 I reckon I can remember if we're talking about 19 percentages, I reckon I can remember about 98 percent of 20 all these events. Now, it surprised me within this 21 Inquiry people in high position, police officers, legal 22 people, and this is not -- don't take this as a 23 derogatory but there seems to be an element of amnesia. 24 Maybe I'm just so close to it that I've been living this 25 for 10/12 years the same as others have but my page 109 1 recollection is that there were two people who were 2 satisfied with it on the blind test, one ran out of time 3 and the other had actually asked for enlargements. 4 As far as the total number of people concerned by 5 the Tuesday was concerned, I reckon there were in 6 total -- and I say that's on the Tuesday and I don't 7 know if that's all the individuals that we know about at 8 the moment, but I reckon there was about 11 individuals 9 were involved in confirming, be it on whatever number of 10 characteristics, that this was Shirley McKie's print. 11 What is annoying me is -- and you may have been 12 coming to a question on it -- is that on the second day 13 when the exercise was done the rephotographing and the 14 re-fingerprinting I was instructed to carry out the 15 examination again. Alan Dunbar did another check on the 16 new material, David Halliday was a sergeant and a 17 fingerprint expert did the third check and it's bugging 18 me that I can't -- there was a fourth person and that's 19 my frustration. As I say, I can remember in very good 20 detail but it's round about these two days there's 21 something -- and this is getting this straight from the 22 horse's mouth -- it's frustrating me that I know that 23 there's at least another person somewhere out there and 24 I know you have made attempts, et cetera, but that's the 25 findings that at no time did anyone -- and this is where page 110 1 the inferences are coming in -- that people had 2 suggested that this was not Shirley McKie's print. It's 3 different from -- and we'll come back to MacNamee 4 because there's a wee parallels in there -- that at no 5 time had anyone said that this is not Shirley McKie's 6 print. 7 If I could very quickly give you a wee summary? Is 8 it appropriate at this moment do you want to ask me 9 more? 10 MR MOYNIHAN: Can I just put your mind at ease. First of 11 all, if I were making an allegation I wouldn't do it by 12 inference, I would put it straight? 13 A. I'm not suggesting you're making the inference but from 14 other quarters-- 15 Q. No, it's okay. I will be quite clear where I am coming 16 from. I am not suggesting to you at all that one of 17 your officers came to you or came to any of your 18 colleagues and said, "I positively disagree". What my 19 questions have been directed to is a completely 20 different perspective. 21 If there is a national standard which is 16 points, 22 it's either attained or not. All my questions were 23 aimed at is whether you, as an individual, knowing only 24 13 points had been found, whether you had pause to 25 think, "How can my colleagues be giving evidence to the page 111 1 national standard when I have only been able to find 2 13 points". That is all I was asking? 3 A. All I'm saying is that if there had been a problem I 4 think I would have found out about that if they hadn't 5 reached the standard or if the Fiscal had a problem with 6 it. So I had to assume that they were dealing with the 7 Fiscal, they had meetings with the Fiscal, they were 8 putting forward their evidence, that it must have been 9 satisfactory to the Fiscal what was being presented. 10 And there was never any indication given to me that 11 there was a problem. 12 But I say, I do -- and I know it's not you 13 personally -- but the inference has been made, not just 14 an inference but allegations have been made in 15 proceedings that are completely false and this is the 16 first time I've had the chance to clarify that. 17 It could even be a play of words but it's very clear 18 and it actually ends up in the newspapers suggesting 19 that, you know, this information wasn't imparted, that 20 people disagreed it Shirley McKie. That's the way it 21 has come across in the media and I feel very strongly 22 about that, that certain parties have put forward false 23 information to the highest of places, the court. 24 Q. I was about to say that's me finished this chapter. If 25 you want to go back -- page 112 1 THE CHAIRMAN: To say something about McNamee. 2 A. I want to clarify MacNamee because there are parallels. 3 MR MOYNIHAN: Please, just say what you want to say about 4 MacNamee. 5 A. It might take five minutes just to quickly -- 6 THE CHAIRMAN: That is all right. 7 A. Again, I've got a very clear memory of MacNamee and I 8 didn't make the connection. So I've clarified that. 9 Let me get this right now. About January 1998, I 10 received a phone call from I think it was a detective 11 inspector (I can't remember the name) from the 12 Metropolitan Police asking or saying that my name had 13 been suggested by someone, presumably someone in the UK, 14 as someone who they might want to assist them in an 15 inquiry that they were looking into. I didn't know what 16 it was and I didn't ask, but it basically involved doing 17 a fingerprint comparison and they said would I be 18 prepared to meet with them and see what they had to say 19 and what they would like me to do. I said, "By all 20 means but, if you don't mind, I'll just check with my 21 Chief Superintendent and basically appraise him that 22 I've had this inquiry, I personally don't have a problem 23 with it and I don't imagine that Chief Superintendent 24 Ferry would have a problem". So there wasn't any 25 problem. page 113 1 They duly arrived in the office possibly a week 2 later -- an appointment anyway -- and two officers, the 3 detective inspector and a female detective sergeant 4 accompanying him, came and said they were currently 5 carrying out an internal investigation -- it was like an 6 internal team from the Metropolitan Police had been set 7 up for whatever. At this stage, I didn't know about 8 what it was. In fact, I didn't know until about two 9 weeks before the appeal case what the case was when I 10 read in the paper. That's how divorced I was from 11 actually who was MacNamee. 12 They came with two brown envelopes and they said, 13 "We've got certain materials here" and this is where the 14 parallels come in to what other evidence we've heard. 15 They said, "In one envelope here we've got, like, 16 photographs of a mark, we've got various photographs, 17 various photographic enlargements in this envelope and 18 in this envelope here we have similar material but 19 marked-up material." So right away, and I think I've 20 said in some of the evidence, there was a clue someone 21 else had looked at this fingerprint material. I say, I 22 was curious as to why somebody had suggested me and I 23 sort of posed the question at some quarters further down 24 the line and I said, "I don't really want to know for 25 whatever reason somebody suggested I might be a person page 114 1 who could assist." So that was it. 2 Immediately what I said was -- now the reason I'm 3 saying this is because I mentioned yesterday that I had 4 to look through volumes of paper (it was like multiple 5 phone book piles of paper) for the Court of Session 6 hearing by the Scottish Executive solicitors asking us 7 to comment on various people's statements and, 8 throughout that, there was a thread of people that have 9 been involved in this outwith SCRO in their approach to 10 how they looked at material. 11 The parallel I'm drawing is I said to these Inquiry 12 officers, "Okay, I hear what you are saying. Can you 13 leave me this envelope? The one with the photographs or 14 whatever it is and the enlargements and various 15 contrasts, et cetera", they basically had given me a 16 variety of, and I said, "That envelope there. Can you, 17 please, take that away. I don't want to know anything 18 about it", and they said, "Well, would it be all right 19 if we come back at some point with that after you've 20 actually looked at this", and I said, "Yes, by all 21 means". 22 So that was how I approached it and then I virtually 23 locked myself away because in subsequent days to -- it 24 actually went on at nights when the Bureau was quite. I 25 locked myself into a room to go through this because it page 115 1 was obviously very confidential, no-one was to know 2 about it, the only thing I said was that, "Well, in 3 Scotland we have corroboration and I'm quite happy to 4 look at this but could you possibly get duplicates made 5 of this", and it was basically suggested, the next 6 senior to me was Alan Dunbar and I said, "At some point 7 maybe you could come back and see him but I will 8 independently look at this material for you". 9 The only clue that I had in this -- well, it was a 10 photograph with a reference number on it. It didn't 11 tell me what it was. Obviously, the name MacNamee was 12 on it but it didn't mean anything to me. Basically they 13 asked me, "Do you anything know about, obviously, this 14 name", or whatever. You know, I said, "Well, I don't 15 know". There's no connection no-one, has asked me to 16 look at -- I think they said, "Have you seen this mark 17 before or these fingerprints before", and I said, "No". 18 So it was on that -- but that was how anonymous it was, 19 if you like. I knew nothing about it and that's 20 probably why they came to me because I imagine it must 21 have been discussed elsewhere in other quarters before 22 they even aware to me. So I had never seen this before. 23 So over a period of maybe a week or so I found time 24 to lock myself away and look at this. The actual 25 parallels with this particular mark, and I think I page 116 1 referred to it earlier in my evidence, there's been two 2 occasions in my career that I've actually looked at very 3 complex marks. Now, the MacNamee print was very similar 4 in nature to the McKie print. It was full of movement, 5 distortion, et cetera, and I think if we were to bring 6 them out and put them side-by-side you could see all the 7 distortions. So basically I worked at that and for the 8 first time ever -- I came to my conclusion at the end of 9 the day it was MacNamee's print but to 11 10 characteristics. 11 Now I wasn't asked do this to an elim standard, do 12 it to the 16-point standard, "Please, look at this and 13 give us your opinion". 14 So I then imparted my opinion. No enlargements, as 15 far as I can remember, at that stage, other than -- or 16 final enlargements, if you like, but basically based on 17 the material that they had because it was at a later 18 stage that I actually formalised it because what I 19 actually used for the first time ever -- and it's again 20 there are parallels with the McKie case -- I don't 21 remember any expert in SCRO in my time ever actually 22 producing an enlargement of the mark, an enlargement 23 from their own impression and an enlargement from the 24 plain impression because, again, with plain and rolled 25 not every bit of detail and actually there was an page 117 1 overlap. So I'd actually to mark up characteristics on 2 the plain impression, for example, and then where it 3 went off the edge a bit, like what we've now got with 4 the Internet, I was then, on the rolled impression, able 5 to get other continuity but that was to bring it up to 6 11 characteristics in total. And I personally was 7 satisfied in this area of the print because there was 8 other areas of distortion. 9 Now, it's my understanding from memory that Alan 10 Dunbar later didn't know my results. All I'd said was, 11 "At some point, if you would agree, there's a team from 12 the Metropolitan -- detective officers, would like to 13 speak to you about a comparison and would you be 14 prepared to take part in that". So I basically relayed 15 that back to the team and they came -- sorry, they came 16 one day, got my results from me and then I was off. 17 They actually then, I don't know if it was the next day 18 or not, but they came on a day that I wasn't there and 19 spoke to Alan Dunbar and he was given similar blank 20 material. It was only after Alan Dunbar had imparted 21 his results back to them that they came back on a third 22 occasion that I remember and actually came with the 23 marked-up enlargements and said, "Now that you have" -- 24 I think by this stage I had done mark-ups, "can you then 25 have a look at what you have done or what your findings page 118 1 are against what other officers have done here in the 2 past", and that is the proper sequence of events. You 3 should look at the blank canvas, as I have described it, 4 always and that's a premise that I've always stuck to. 5 Now, what has jumped out at me, and I'm quite sure 6 you'll be reading the various statements that various 7 officers have made over the years and many of the 8 witnesses that have already spoken and others that maybe 9 haven't been here yet, "We have looked at the SCRO 10 mark-ups", quite clearly in their statements and then 11 they go on to saying that they looked at the blank 12 canvas, completely the reverse of what you should do. 13 So that's where I thought it was important -- you 14 know, I've now brought out and that's the only way to do 15 it and it is so distinct in my mind. "Please take that 16 away." 17 It was two weeks before the scheduled -- I think it 18 was November 1998 eventually I was called down 19 supposedly for a day's evidence and ended up being there 20 for a week and I was a day and a half in the box 21 describing my identification on a thumbprint, complexity 22 equally as complex as Y7 is. 23 The final point is you mentioned about 14 people 24 giving their opinions, again, in the MacNamee case I'm 25 not aware -- and I didn't hear every expert -- but I'm page 119 1 not aware of any expert in the MacNamee case saying it 2 wasn't MacNamee's case (sic). Now this is a bit -- I'm 3 not aware of any expert saying it was not -- there were 4 experts saying it was from various findings, there were 5 other experts saying it was insufficient. You've got to 6 draw the difference there between insufficient. They 7 weren't saying it wasn't; they were saying it was 8 insufficient for them to compare. That's a very 9 relevant point from inferences that can be drawn and 10 somebody saying, "I haven't come to a conclusion yet", 11 or whatever, from saying, "It's not". 12 In the MacNamee case I have no knowledge of any 13 expert actually saying -- I may be corrected -- but from 14 my knowledge no-one actually came out and said, "It's 15 not MacNamee's". It was either insufficient or there 16 were a range of experts saying it was. 17 Now interesting again -- and obviously their 18 Lordships made up their mind because of the balance of 19 different experts was that it turns out, obviously, it 20 was the Metropolitan Police or police staff that did the 21 original case and did mark-ups, but when I was actually 22 then shown the mark-ups I could not, significantly, I 23 could not agree with the 16 mark-up that they had made. 24 So there you have it, again from the horse's mouth, 25 that MacNamee, I was satisfied but I didn't agree with page 120 1 how the stuff had been marked up and, obviously, that 2 was a basis of challenge that ended up in the Appeal 3 Court. So that's my involvement with MacNamee and, I 4 say, I think the parallels were useful to bring out for 5 this Inquiry. 6 MR MOYNIHAN: Sir, that would be an appropriate point? 7 THE CHAIRMAN: Yes, we will sit again at 3.08. 8 (2.58 pm) 9 (A short break) 10 (3.10 pm) 11 THE WITNESS: Mr Moynihan, could I just add one further 12 comment on MacNamee that came back to me that thought I 13 it was important to bring out to the Inquiry. It was 14 that the same female Detective Sergeant in that inquiry 15 team who had visited earlier with the materials and who 16 had basically been present during the trial, early in 17 19 ... I'll get this correct now. The appeal case was 18 November 1998 -- early in '99 when the judges came to 19 their assessment of the whole appeal, I had received a 20 phone call from the female Detective Sergeant saying, "I 21 thought you would like to know that their Lordships now 22 having come to a decision actually singled out the 23 evidence of the Scottish Criminal Record Office experts 24 and used four words to describe the officers', basically 25 ability, application, skill and honesty". page 121 1 So this Detective Sergeant actually thought it was 2 relevant to actually contact me to let me know how our 3 evidence was viewed by the judges. 4 MR MOYNIHAN: In fact, what I want to do is just go back to 5 complete Y7 and then we will move on to QI2. 6 In completing Y7, what I am going to ask you to do 7 is to comment on some features which I do not believe 8 are common to you and to the SCRO chartings. I will 9 explain that in a minute. 10 If I ask you, please, to look at SCRO Y7 charting 11 which is FI0167A. I have looked, Mr Mackenzie, with 12 your assistance at a meeting. I have looked at the 13 presentation that you have given us yesterday and 14 separately I have also looked at your civil charting and 15 I understand that, with the exceptions I am going to 16 mention, you have yourself in your past presentations 17 pointed to the same features as your colleagues in SCRO 18 in this charting. 19 The exceptions so far as I am aware are above the 20 core the features 10 to 14 inclusive and also there is a 21 point in the same area which is feature number 17. 22 There may be the photographic originals to your left 23 on the easel beside you if you want to have a look at 24 that. So what I want to do very briefly is to look at 25 10 to 14 as a batch and then number 17. page 122 1 I can be relatively brief. 10 and 11 are the lake 2 above the core in Ms McKie's left thumb. 12 and 13 I 3 think other individuals have referred to as an incipient 4 ridge. Do you accept that description? 5 A. Yes. 6 Q. Number 14: I don't know how you yourself would describe 7 number 14, looking at Ms McKie's left thumb? 8 A. I think from memory, in the exercise I considered it to 9 be a ridge ending. 10 Q. So a ridge ending or it could possibly be a bifurcation. 11 It does not matter. 12 So far as I understand what you have said about 13 this -- and I will take it relatively shortly -- at the 14 time of February 1997 which, as you explained, is what 15 is reflected in your civil charting of the 13 points, 16 you had in mind a fault line and you were therefore 17 reluctant to go above that fault line. 18 A. Correct. 19 Q. That would explain why in your earlier chartings you did 20 not point to the features 10 to 14. Is that fair? 21 A. The proximity of 10 to 14, in my opinion, was too close 22 to the fault line to basically include in my original 23 deliberations. 24 Q. But now, having seen or being required by us to comment 25 on the SCRO charting which we see on the screen, what is page 123 1 your opinion? 2 A. I have confirmed that I can see these characteristics, 3 albeit they are close, as I have recorded, to the fault 4 line and because of the close proximity and that's where 5 the area of movement starts. That's why I didn't 6 include them in my initial February '97 and then 7 thereafter. 8 But I need to add that -- and, again, in the 9 interests of transparency and to give you the events and 10 it's along the lines of the MacNamee situation, when the 11 productions came back from court, then all I was wanting 12 to look at was the photograph of the mark and the forms 13 that I had used in '97, the books with the enlargements 14 came back. Again, they were basically filed wherever 15 they were filed when they come back from court and I did 16 not look at them until I had finished my deliberations. 17 But I thought it incumbent on me then, a bit like 18 MacNamee, to say, "Well, here's my conclusions on all 19 the material I've got here. Let me now look at what the 20 mark-ups were et cetera". That's where I then 21 discovered that that cluster of characteristics had been 22 used in either or both trials. 23 So again as a matter of transparency I thought it 24 relevant to add it and it's page 22 in my folder, I'm 25 actually highlighting these. But that's the sequence of page 124 1 events. 2 Q. So page 22 of your production CO0059 (digitally page 23) 3 what we have brought up is a page from your book and 4 what you are indicating is that you have marked in green 5 in your presentation the additional features that I am 6 asking you about, 10 to 14, plus perhaps one other, that 7 you understand your colleagues to be referring to but 8 you had not yourself referred to, you refer to them in 9 the productions? 10 A. Yes. 11 Q. This is very helpful because in addition to 10 and 11 12 (the lake), 12 and 13 (the incipient ridge) and 14 (the 13 ridge ending or bifurcation; it matters not), we also 14 come, if I understand it correctly, to the final one 15 which I will highlight on the screen with a circle as 16 point number 17. 17 A. Yes. 18 Q. Point number 17 is simply the number it happens to have 19 in our current exercise. 20 If I could save that image for today, please. 21 MISS BAHRAMI: That's saved as FI0110.12. 22 MR MOYNIHAN: What I will do is go back to the SCRO charting 23 FI0167A. 24 What I want to do on this occasion, Mr Mackenzie, is 25 to highlight the Y7 charting done by your colleagues. page 125 1 We are now looking at point number 17. I can bring up a 2 clearer image, if that would assist you or just work 3 with -- 4 A. Could you take the wee cursor away? 5 Q. Yes. Would you wish me to bring up a clear image? 6 A. No, I can actually see it on here. 7 Q. This is what I was going to ask you about. What others 8 have said is that we are, at point 17, on the edge of 9 the mark -- 10 A. I would say that's actually fractionally in from the 11 edge. It's not right on the edge of the mark. 12 Q. Others have said it's on the edge of the mark. You 13 yourself have said its in the area you have described as 14 the fault line? 15 A. The fault line, yes, just above that but it's close to 16 the axis where the disturbance started and that was my 17 thought process that because it was close to the axis 18 that I did not use that in my initial comparison. 19 Q. What, as I understand it, the others who dispute the 20 identification would suggest -- and this is what I put 21 to you for comment by you -- that point number 17 is 22 unreliable because it is so close to the edge that there 23 is no dependable feature there at all. 24 If I can put that to the side, just so that we can 25 assist, I have an unmarked copy of the comparative page 126 1 exercise image. It is EA0035. (Pause) 2 It is not in the system. We will just leave it. 3 Can you assist us then by telling us that despite -- 4 it's the line 11 that is troubling me and I was trying 5 to clear away line 11. 6 A. Sorry, the suggestion it is right on the edge is, from 7 what I am looking at here, it's just not the case. It's 8 in from the edge. I can see the two ridges coming above 9 what I would describe as the incipient ridge also coming 10 into the point to make the bifurcation before the edge 11 and I can see it on this size on the screen. 12 Q. Give me just a second. What I will to is bring up 13 Mr Grigg's charting because he does not have any line 14 that would complicate this particular area. Mr Grigg's 15 Y7 charting is FI0168A. What I will do is enlarge it. 16 Is that correct, Mr Mackenzie? We have now up an 17 image of -- 18 A. That's Mr Grigg's. 19 Q. We have now up an image that is uncomplicated by the 20 line. There is the image enlarged. 21 Can you assist me, please, in telling me, first of 22 all, what you say about point number 17 not being on the 23 edge? 24 A. Again, when I was conducting this comparative exercise I 25 had great difficulty with the clarity of this being put page 127 1 on to a screen but where I see this coming in is where 2 I'm putting the cursor just now, just about there 3 (indicated). The edge, as far as I'm concerned, is down 4 here so just in from the edge here (indicated) is where 5 the bifurcation is and there's a leg going along there 6 and a leg going along there and then it's tapering into 7 the one ridge. It's actually just a about here 8 (indicated). 9 Do you want me to put an arrow on it? 10 Q. What we can try to do is, first of all, just by a circle 11 can you indicate for me roughly the area that you are 12 saying is the edge of the print? Can you put a circle 13 round the edge? 14 A. Are you going to capture that then because that may -- 15 Q. Sorry, what I will do is, instead of a circle, ask you 16 to put a line down what you say is the edge. 17 A. The edge, okay. (Pause) 18 Something like that (indicated). 19 THE CHAIRMAN: That is the green line marks the edge? 20 A. Yes. 21 MR MOYNIHAN: What I will do is make sure we have changed 22 the colour to red. 23 Where do you see the bifurcation that is feature 24 number 17? 25 A. Is this an arrow? page 128 1 Q. No, it is a line. 2 A. Could we make it an arrow? I think I've put a red dot 3 on it, actually. That will do. 4 Q. Other than the fact we may not see it. You're 5 indicating that the red dot -- 6 A. Yes. 7 Q. Let me just do that. I want to stay well clear of it. 8 So where I put the arrow pointing at the very faint red 9 dot is point number 17? 10 A. From what I can see on here, the quality of this image, 11 yes. 12 Q. What, as I understand it, you indicated was that you can 13 see in that area a bifurcation and what I've done is 14 given you the ability to draw a line, I think, in blue 15 or purple. 16 Can you indicate for me, please, where the 17 bifurcation is running from and to? 18 A. Is this a free line drawing now, is it? 19 Q. Yes. 20 A. It's actually coming to a point, obviously, there. 21 Can I continue to draw another line out to the left? 22 That's basically -- that's basically where I see it. It 23 looks a bit ... it's actually the two ridges coming 24 together and then to the left of that is it's going into 25 the one ridge so it is the bifurcation. page 129 1 THE CHAIRMAN: It's a bifurcation pointing to the right? 2 A. Yes, the tail of it would be -- 3 THE CHAIRMAN: And sloping downwards? 4 A. Yes, it's just the way I've ... yes. 5 MR MOYNIHAN: In that case, what I will do is save the image 6 we have displayed. 7 THE CHAIRMAN: Can we put 17 on that, please? 8 MR MOYNIHAN: Yes. Again, I will put the box in here and 9 put number 17. 10 MISS BAHRAMI: That's FI0110.13. 11 MR MOYNIHAN: Mr Mackenzie, what I want to do is to turn to 12 QI2. 13 Sir, in relation to this matter I have been having 14 some discussions with Mr Mackenzie and with Mr Holmes. 15 As you indicated the preferred approach where one expert 16 has given contrary evidence is that those who are 17 contradicted should have an opportunity to put a 18 positive case rather than there be cross-examination of 19 the contradictor. 20 I have come to appreciate that while I was intending 21 to carry out that exercise with Mr Mackenzie to ask him 22 to give a positive response to Mr Wertheim and Mr Grigg 23 that there has probably been insufficient time to enable 24 him reliably and comfortably to undertake that task. 25 Accordingly, sir, what I am going to do is cover QI2 to page 130 1 a certain extent but not expect Mr Mackenzie to make a 2 positive rebuttal of Mr Wertheim and Mr Grigg. 3 That may mean that we have to recall Mr Mackenzie at 4 some suitable point slightly later, I hope not for too 5 long, but I think it will actually assist you to have a 6 more concrete chapter of evidence from Mr Mackenzie. 7 THE CHAIRMAN: I would certainly like him to have time to 8 consider it. 9 A. It wouldn't be a problem, provided my availability on a 10 particular day -- otherwise I will accommodate whatever 11 is required. 12 THE CHAIRMAN: We will work out what suits you and what 13 suits the programme. 14 MR MOYNIHAN: What I am going to do -- and, Mr Mackenzie, if 15 I reach a point in any of this questioning where I am 16 going beyond the preparatory work you have done, please, 17 just indicate because it is not my intention to take you 18 beyond what you prepared for. 19 What I have in relation to QI2 is the fact that for 20 the purposes of Mr Gilchrist's investigation you did a 21 charting of QI2. 22 A. Could I just go into the history for five minutes before 23 we actually start? 24 Q. It is okay, I think we have had a history from 25 Mr Gilchrist? page 131 1 A. The history is in my statement, basically, anyway. 2 Q. It's okay because what I wanted to do was just to get to 3 your chartings. Now we have two chartings and we do 4 have the photographic originals of your charting and I 5 also have the transparencies which are associated with 6 the original form in addition to some digital ones I am 7 going to put up. 8 First of all, if I put up your charting, that is 9 CO2005H. I have brought up page 1. We will progress 10 through this. On page 1 we see that this is a charting 11 that you did on 27th July 2001? 12 A. That's correct. 13 Q. If we proceed through page 2, just some narrative that 14 is in the document. 15 If I proceed to page 3, you set out -- and there is 16 a photograph of the mark QI2. 17 Page 4 is the charting that you did of QI2 and if I 18 put that to one side and then bring up separately, 19 therefore, as a double image, page 5 of the document we 20 have a corresponding marked fingerprint of Miss Ross? 21 A. Correct. 22 Q. Because there's a question about the clarity of the 23 images, are you working yourself to an original copy? 24 A. I have, I've got an identical copy to what you have in a 25 glossy photograph. page 132 1 Q. We have the photograph here for anyone else to follow -- 2 A. Sorry, could I add my glossy has got the points, the 3 dots on the photograph, but the copy with the numbers on 4 it is actually a photocopy of my book here so I've got a 5 combination of the glossy without the lines and the 6 numbers but the points are there to help me basically 7 work my way through this. 8 Q. Mr Mackenzie, I can stop you. I can give you the one 9 with the numbers, the original with the numbers, so that 10 you can be comfortable with that. (Handed) 11 In relation to QI2, what you have marked in this 12 charting is a total of 29 characteristics that you would 13 say match between QI2 and Miss Ross's fingerprint? 14 A. That's correct. 15 Q. Before we get into any of the detail of this, what I had 16 as my initial thought was whether you had, in fact, 17 observed any differences between QI2 and Marion Ross's 18 fingerprint? 19 A. Not in the location of these characteristics in sequence 20 and agreement to each other, no. 21 Q. So you have not noted any differences at all? 22 A. Not -- the points I've marked are all in sequence and 23 agreement so that there's nothing in the wrong place, if 24 you like. But I need to clarify that Marion Ross's 25 fingers are -- the amount of actual ridge information page 133 1 within, obviously, the ridges on Marion Ross's 2 forefinger there are a consider amount of incipient 3 ridges, some of the second level detail -- sorry, the 4 first level detail, the ridge flow, the full-blown 5 ridges, actually taper off into very fine ends which can 6 be or could be construed as incipient ridges as well. 7 So the amount of time taken to actually work at this 8 print, starting obviously with actual size but then 9 having been accommodated with enlargements I actually 10 spent two days on the analysis of this, hence the volume 11 of information that I've been able to display. It 12 wasn't a few minutes to come to that level of 13 information, but it is in a similar manner, it's a 14 complex mark, but it's not subject to the distortion 15 anything like X7 -- sorry, Y7, but I also have noted in 16 my covering letter to Mr Gilchrist and you have actually 17 passed by it. The page before that I actually showed 18 the actual ... in fact, it's in here. The actual 19 photograph here and I made a vinyl overlay to explain 20 the presence of other fingers around this mark, 21 particularly in the bottom left-hand corner, and there 22 is some over in the right-hand and I think on here I've 23 indicated something up in the top left-hand corner as 24 well. 25 THE CHAIRMAN: When you say "other fingers", other people's page 134 1 fingers? 2 A. All I knew was there was other ridge detail there and 3 when I examined that I came to the conclusion they 4 weren't Marion Ross's because all I had to compare was 5 Marion Ross fingerprints and in the second last comment 6 in my letter to Mr Gilchrist said: 7 "Having had no previous involvement in the 8 comparison of the aforementioned photograph, I would be 9 interested if you could advise me as to whether other 10 fingers disclosed in the photograph [and the reference 11 number QI2] have been eliminated or identified." 12 Well, I had no further communication with 13 Mr Gilchrist but at that point and within my report I've 14 indicated the presence of -- and, again, from the 15 analysis stage, the very first looking at the mark cold, 16 it's very important you took cognisance of the other 17 fingers present in this area and superimposition in 18 certain areas of the photograph. 19 MR MOYNIHAN: What I am going to do, because the pair that 20 we have up just now are useful and we will come back to 21 them from time to time, is if we could save this image 22 and then we will see whether the digital image of the 23 preceding page that you mentioned is useful to us. 24 MISS BAHRAMI: That's image FI0110.14. 25 MR MOYNIHAN: If you could with that, please, bring up as a page 135 1 single image CO2005H.003. 2 What I am going to do for everyone's benefit, if I 3 can find where the mouse has gone ... 4 A. I did this, obviously, to assist Mr Gilchrist in 5 pointing out -- 6 Q. Give me just a second. What I was going to do was 7 simply to enlarge it. 8 You have now given an explanation of something that 9 is to be seen on the screen and you can now help us, if 10 we progress in any way that is logical for you to 11 explain what you have marked on the charting? 12 A. If we could start at the top left-hand corner the 13 outline with the black marker pen suggesting that over 14 out to about -- if you look at the centre of the whorl 15 pattern, which is QI2 of Marion Ross, if you look out in 16 the direction of about 10.00 on the clockface, I've 17 outlined an area where there seems to be the presence of 18 other ridge detail, a separate finger. 19 Further out to the extreme edge there there's a 20 smearing right off at the edge of the photograph. This 21 is on the left-hand side. 22 Q. Sorry, Mr Mackenzie, what I am trying to do is have a 23 mouse that will work ... 24 A. Do you want me to just progress it? 25 Q. I think what would help is when you're saying that page 136 1 there's something off to the left, if you just highlight 2 the area you are talking about, please. 3 A. Do I have control of the mouse? 4 Q. Yes. 5 A. It's not moving. It's frozen. 6 THE CHAIRMAN: Would it do to put a letter in the general 7 area? 8 MR MOYNIHAN: Unfortunately, we can't move any of the mice. 9 THE CHAIRMAN: No, but once we get that sorted, just put a 10 letter in it rather than have draw an outline which 11 seems difficult. (Pause) 12 MR MOYNIHAN: If I just take over and see if I can make it 13 work again. 14 As his Lordship said if we just mark the areas. 15 First of all, as I understand it, the first area you 16 were saying that has some other fingerprints in it, can 17 you just very roughly put your cursor in that area? Put 18 an arrow. 19 A. I'll put a coloured circle or ... a circle, yes. 20 (Indicated) That area contained within the black 21 outline and that's out to about 10.00 on the clockface 22 from the whorl. 23 Q. So the area where you put the yellow circle is an area 24 of other markings? 25 A. With other ridge detail in it, that's alien to the whorl page 137 1 pattern I'm focussing on. 2 THE CHAIRMAN: Alien to, did you say? Did you say alien to? 3 A. Yes, because it doesn't bear any relation to -- and the 4 distance away from it -- but on that area of the 5 photograph there's presence of other ridge detail. 6 This is not the whole area but contained within the 7 black outline in that area and going up into the bottom 8 left-hand corner below the whorl, is all subject to a 9 digit that looks as though it's running at right angles 10 to it and the impression I get from the pattern flow or 11 the ridge flow is that it's a loop running to the right. 12 MR MOYNIHAN: So that's the green oval that you've added? 13 A. So to get the orientation of that particular print you 14 need to turn the photograph round 90 degrees. So 15 basically this finger is running at 90 degrees, roughly, 16 to the bottom of the QI2, Marion Ross, mark. 17 Again, this vicinity (indicated) more ridge detail, 18 less -- 19 Q. Just for our notes, that's the second oval now to the 20 right, immediately above the digits 197? 21 A. I actually meant to change the colour, can I just ... 22 Q. That's okay. I'll go down and change the colour now. 23 A. We'll start again. 24 That approximate area. So, again, down to the 25 right-hand bottom edge away from the whorl pattern. So page 138 1 in this areas there's evidence of ridge detail that's 2 running in the opposite direction and this is in line 3 with comments that I heard on the Frontline Scotland 4 programme, 16th May 2000, in which Pat Wertheim and 5 Allan Bayle appeared and they were referring to marks, 6 presumably, which looked like the SCRO productions and 7 they were saying this feature here is vertical and this 8 feature here on the other side is horizontal and that's 9 something I recall from that TV programme. 10 Of course, that was 16th May 2000. I didn't have 11 the opportunity until July, 14 months later until 12 July 2001, to actually see what that reference was to 13 and hence if you take page 2 as my notes on my 14 assessment for Mr Gilchrist, for his benefit, to 15 explain -- which is also in the narrative -- that there 16 were other fingers in the area subjecting this to 17 superimposition. 18 I have coloured probably a red felt pen I had 19 used -- you can actually see enclosing the whorl-type 20 pattern which is the -- do you want me to try to put 21 another colour over the top of it or just put an arrow 22 to where the colour is? 23 Q. In fact, what I was going to ask you to do, having drawn 24 the circles of exclusion, so to speak, if you could give 25 me roughly the area that would circumscribe QI2 Marion page 139 1 Ross. 2 A. So I can change the colour of it ... again this might be 3 an approximation. That is an approximation. It's 4 obviously not going as low as that. Do you want me to 5 try and do it again more accurately? 6 THE CHAIRMAN: Maybe you should. 7 A. I'll see if I can master this. I think that's better. 8 THE CHAIRMAN: So the pale blue one is the Marion Ross area? 9 A. Yes. 10 MR MOYNIHAN: I think we had better save that before we lose 11 it. 12 MISS BAHRAMI: That's FI0110.15. 13 MR MOYNIHAN: Mr Mackenzie, I take it that as soon as we go 14 outwith the light blue oval that one is in an area of 15 unreliability because of the problems of 16 superimposition? 17 A. Well, there's actually some still within that area but 18 that's an approximation, yes. 19 Q. With that in mind, perhaps if I put that to one side as 20 an image and I return to your own charting CO2005H -- I 21 think it will be page 4 -- what I was in fact going to 22 begin to ask you about was the group of points, one 23 might go as far as number 7 even. If I put a line ... 24 it is done as a blue line. I was going to ask you about 25 the points really to the left of that line, not so much page 140 1 those close to it but certainly as one progresses 2 further out to ask you how you would explain those 3 features being dependable features that you could then 4 correlate to features within Marion Ross's print. 5 Perhaps if we begin really with the most difficult 6 one of them, I would suggest, the one that is in the 7 most extreme left, point number 1? 8 A. Again, I think with this technology I've experimented 9 with it for the first time at lunch time. When I 10 actually tried to blow up some of this, it's actually 11 pixillating it a bit. So I'll attempt to on this size 12 again similar as we did maybe in groups with a few 13 arrows, if that helps. 14 I need to let you know that in my comparison -- when 15 I got this material to start with I got actual size but 16 I also got -- in fact, I was given access to the 17 deceased's prints which were taken with black powder on 18 white tape and mounted on to a vinyl sheet and I got, I 19 think, one photograph of QI2 when Mr Gilchrist came 20 initially and he said, "Whatever you need, tell me and 21 I'll make arrangements", and it was Strathclyde Police 22 Photographic Department, Identification Bureau, and 23 having initially looked at it under a glass the day that 24 Mr Gilchrist came, because he said he would like -- what 25 he said, first of all, was, "Am I right in saying you page 141 1 have not seen QI2 before", and I said, "Yes", a bit like 2 the Metropolitan Police coming and I said, "Yes". He 3 said, "Well, would you consider doing a comparison of 4 it", and I said, "Yes". 5 He said, "Well, what would you need?" I said, 6 "Well" -- again, I did an initial magnifying glass on it 7 and I actually asked to have a comparator in the room as 8 well and I got a start on that but, again, because of 9 the complexities I was already formulating of other 10 fingers round about it I said, "What I need to do is get 11 a range of photographs, different contrasts", and also I 12 didn't know at that time, obviously, this had been done 13 with superglue, you can get with some of these 14 impressions the ridges in the reverse colour so I said, 15 "If you can make arrangements with the Identification 16 Bureau I'll ask for appropriate materials". So I got a 17 range of photographs showing the ridges in black, 18 showing in white and enlargements from Marion Ross's 19 mortuary prints. 20 I remember being shown, when I was asked for my 21 statement, various articles and I'm nearly certain -- 22 you may have the originals of Marion Ross's but I'm 23 nearly certain that I was conscious that when we asked 24 for enlargements to be made we would put, like, four 25 little squares to outline the area we want enlarged and page 142 1 I'm nearly certain that I made a photocopy of the 2 photograph. It's on page 2 -- sorry, a photograph -- I 3 made a photocopy of the deceased's prints. I didn't 4 want to actually mark them in any way in case at some 5 further stage -- so I'm nearly sure I made a copy of it 6 and put my boxes on that. So what I was shown by the 7 person taking the statement, I think, was a photocopy. 8 I may be proven wrong, but I was conscious at that time 9 I didn't want to be interfering with original evidence. 10 So I'm trying to remember the officer's name -- Eric 11 Dunsmore from the Photographic Department came with or 12 came to see me and I gave him the areas that I wanted 13 him to take away and enlarge, et cetera, and that's what 14 he did. 15 Now, again, somebody might say, possibly some other 16 contradicters might say, "Why did you actually have one 17 photograph running landscape and one running portrait 18 direction?" This was actually just the way that 19 Mr Dunsmore produced the photographs. I may have gone 20 back to him and said, "Can you make them the same?" So 21 that's how they actually appear there. It was actually 22 he chose to print them that way and nothing else, in 23 case there's any allegations made about the area shown, 24 et cetera. 25 Sorry, I've lost track of what you asked me. page 143 1 Q. That is okay because what I was asking -- and I see what 2 the time is; there comes a point perhaps where it is not 3 fruitful to carry on -- because my own questions had not 4 been prepared on the basis of understanding the ovals 5 that you have indicated on the left-hand side of the 6 screen but, nonetheless, even without the benefit of 7 that insight of the ovals, I have been prepared to ask 8 you to explain to us please the reasons that you can see 9 the sort of features out as far as 1 on the print and 10 reliably tie those into corresponding features in the 11 fingerprint of Marion Ross? 12 A. No, but I can track this where I went off track there to 13 explain that, that basically when I got the material and 14 the enlargements, you'd have seen me sitting with a 15 magnifying glass like this. Certainly some form of 16 magnification helped me fully analyse the whole of this 17 mark and then the mark of Marion Ross or, sorry, the 18 digit of Marion Ross, but the area here and the various 19 complexities of it I was actually working with a 20 magnifying glass not only on the actual size but also on 21 a blank enlargement and still to this day that assists 22 me. So that's how the technology is a wee bit different 23 from obviously how I did this. 24 But I'm quite happy that I can articulate all these 25 points that are marked on here. Unfortunately, it page 144 1 doesn't look as though we're going to be able to enlarge 2 segments up, but I'm quite happy that I will take it 3 point-by-point and illustrate what I marked on here. 4 But, I say, that was just to explain how I did this 5 because it's very such fine detail, particularly with 6 incipient ridges. As I explained before, in some of the 7 ridges the ridges actually taper off and give the 8 impression of being incipient ridges and they also, 9 because they are incipient ridges in the furrow, can be 10 very close to the ridges. Also, some of the full ridges 11 actually run very close to each other such is the nature 12 of Marion Ross's ridge detail. 13 So it is complex in that manner and it takes a lot 14 of time which I suspect and I'm actually mesmerised how 15 I think it was Durham -- correct me if I'm wrong -- said 16 they could see one characteristic in this. So I think 17 we've got two ends of the spectrum and I'm more than 18 happy to take my time and work my way through this. 19 (FI0110.16) 20 MR MOYNIHAN: What I suspect is that it is better tomorrow 21 morning. 22 THE CHAIRMAN: I think if we start them at the beginning and 23 work our way through. The programme for 24 tomorrow morning is? 25 MR MOYNIHAN: The programme for tomorrow would be to finish page 145 1 Mr Mackenzie. Then, after cross-examination of 2 Mr Mackenzie, I have Mr Dunbar. It is my intention to 3 be very much briefer with Mr Dunbar and in fact just to 4 go into some of the matters concerning February 1997, 5 not really the identification of the fingerprints. He 6 has no working experience of QI2, in any event. Beyond 7 that, the only other witness that was scheduled for 8 tomorrow is Mr Swann and he has been deferred until 9 Tuesday. So we will finish Mr Mackenzie and I strongly 10 believe we will finish Mr Dunbar as well tomorrow. 11 THE CHAIRMAN: Of course, when we say finish Mr Mackenzie, 12 that means this part of his evidence? 13 MR MOYNIHAN: Yes. 14 THE CHAIRMAN: 10.00 tomorrow, please. 15 (4.05 pm) 16 (Adjourned until 10.00 am the following morning) 17 18 19 20 21 22 23 24 25