page   1
 1                                      Tuesday, 6th October 2009
 2   (10.00 am)
 3               ROBERT HARVEY MACKENZIE (continued)
 4                Further cross-examined by MR SMITH
 5   THE CHAIRMAN:  Good morning, Mr Mackenzie.  I hope it will
 6       not be long before you can be freed from your term
 7       sitting in that spot.
 8           Mr Smith, I think you has last been referring to Mr
 9       Ashbaugh.
10   MR SMITH:  I did indeed.  I am moving on from that, sir.
11   THE CHAIRMAN:  My note is one topic, that is QI2, you want
12       to ask some questions.
13   MR SMITH:  There were still a couple of points remaining on
14       Y7 but I hope I can get through them fairly quickly.
15   THE CHAIRMAN:  Yes, if they have not been touched on by
16       Counsel to the Inquiry.
17   MR SMITH:  Mr Mackenzie, can you hear me all right this
18       morning?
19   A.  Yes, thanks.
20   Q.  I wonder if you can move a little bit closer to the
21       microphone or move it towards you.
22           Mr Mackenzie, the first thing I would like to ask
23       you about is the question of the blind testing that took
24       place, I don't mean to take you to too much detail on
25       this but, as I understand it, your position is that this
page   2
 1       was nothing really to do with the murder investigation
 2       that was taking place.  This was, as it were,
 3       coincidental that there was some interesting prints that
 4       you wished to present as a blind test.  Is that right?
 5   A.  I saw it as an opportunity for a blind test completely
 6       separate from, as you suggested, the inquiry.
 7   Q.  I take it you were aware that others who have given
 8       evidence and will be giving evidence who were there at
 9       the time clearly understood this to be relative to the
10       murder investigation, in particularly Shirley McKie's
11       denial that Y7 was hers.  Are you aware of that?
12   A.  No, I'm not aware of that because on that evening the
13       test was set up in such a way it was to be anonymised
14       and there was no discussion that I'm aware of that this
15       was anything to do with any case in particular.
16   Q.  Did everyone who was employed by SCRO as a fingerprint
17       expert at that time, undertake that test involving Y7
18       compared with the Shirley McKie's mark?
19   A.  I'm sorry, right at the beginning of your question what
20       was the start of your question?
21   Q.  The start of it was did everyone who was employed by
22       SCRO at that time who was a fingerprint expert take part
23       in the test?
24   A.  Did everyone?  No.
25   Q.  Why not?
page   3
 1   A.  What period of time are you talking about?  Are you
 2       talking about that evening or are you talking about
 3       thereafter?
 4   Q.  The reason I'm asking this, Mr Mackenzie, is if it was a
 5       blind test and was being carried out for some quality
 6       control reason then is it not logical that everyone who
 7       is employed by SCRO should undertake that test?
 8   A.  That test was just carried out on that evening just as a
 9       one-off opportunity for tests.  There was never any
10       thoughts in my mind that the whole of the Bureau would
11       be shown that.
12   Q.  We are to understand, are we, Mr Mackenzie, it was
13       purely coincidental carried out by those present on that
14       night while there happened to be a serious investigation
15       into Shirley McKie's mark and Y7, it was just
16       coincidence and nothing to do with the investigation?
17       That's your evidence, is it?
18   A.  I wasn't aware there was a serious investigation into
19       Shirley McKie on that day.
20   Q.  You are saying you did not understand there to be a
21       major issue at that time -- is that right -- when the
22       blind test was carried out?
23   A.  The day that test was carried there was a query from
24       Kilmarnock Police Office and asked for another
25       comparison and that comparison was done by myself and
page   4
 1       Alan Dunbar and that result was then imparted to
 2       Kilmarnock Police Office.
 3   Q.  I would like to ask you if I can now about the question
 4       of multiple taps, just a few more questions on that.
 5           As I understand it, you are acknowledging that for
 6       your theory to be correct there must have been at least
 7       three touches in respect of the upper portion of Y7.  Is
 8       that right?
 9   A.  No, I said there was more than one touch in the whole
10       mark and then I said on the top I had clarified two
11       areas that were separate.  So the area below the fault
12       line was one area and established two areas in the area
13       above the fault line.  So there was at least two touches
14       on the top.  That's what I said.
15   Q.  So overall at least three.  I just want to be sure I am
16       understanding that.  Is that right?
17   A.  I've established there's at least three touches, yes.
18   Q.  As far as that is concerned, let's deal with the top
19       portion.  The top portion of the mark Y7, can you give
20       an indication as to how you would describe the entire
21       area of that top portion?  Let us think about the size
22       of a 5 pence piece.  Is it about that size, smaller than
23       that size or bigger than that size?
24   A.  Again, I would need to look at the actual size mark and
25       then see the size of that against a 5 pence piece.  I
page   5
 1       can't just off the top of my head say it's the size of a
 2       5 pence piece.
 3   Q.  Would you agree with it's approximate that size?  Is
 4       that a fair assessment?
 5   A.  Without actually doing it, if you want to try and put a
 6       5 pence piece on it, I'll tell you.
 7   Q.  Do you have any recollection, Mr Mackenzie, as to how
 8       big the actual mark is?
 9   A.  Sorry, how ...?
10   Q.  Do you have any recollection -- forget about 5 pence
11       pieces.  Do you have any recollection as to how big the
12       entire mark of Y7 is?
13   A.  How big?  It's sufficient enough to suggest to me it was
14       a thumbprint as opposed to the extreme, say, being a
15       little finger.
16   Q.  Let us try and approach it this way: as far as these
17       clusters are concerned -- do you understand what I mean
18       by the clusters I refer to?
19   A.  Yes.
20   Q.  -- are you able to give any indication as to what size
21       any of these clusters would be from one point within a
22       cluster to the furthest way cluster?
23   A.  I've never measured them, if that's what your
24       suggesting, in the same way I wasn't into geometry the
25       other day either because I haven't measured the areas of
page   6
 1       the distortion.
 2   Q.  Would you agree with the suggestion that even that the
 3       largest cluster is so small that it is effectively on a
 4       flat part, for all intents and purposes, of any digit
 5       that has left the mark Y7?
 6   A.  Sorry, just say the black part?
 7   Q.  Flat -- F-L-A-T flat.
 8   A.  Sorry, give me the question again?
 9   Q.  The question is that the area is so small there is
10       effectively -- a thumb is rounded -- but you are dealing
11       with such a small area that is effectively a flat area
12       within the cluster.  Do you understand what I'm saying?
13   A.  No, not quite, no.
14   Q.  I am going to suggest to you, Mr Mackenzie, that dealing
15       with the size of these clusters, they are so small that
16       it would be impossible to individually place down any
17       such cluster.  You disagree with that, don't you?
18   A.  Yes.
19   Q.  If we hear evidence subsequently that it would be
20       utterly impossible to place down any cluster -- any
21       cluster -- on its own you say that you know better than
22       that.  Is that the position?
23   A.  No, it's not a matter of I know better and others will
24       say other things.  From my comparison of the mark Y7 and
25       the specific areas that you're talking about and
page   7
 1       comparison against the control print, I am satisfied
 2       that I've established that these areas were touched
 3       twice.  That's my opinion.  So to say that -- it's
 4       whatever your words were, basically -- as far as I'm
 5       concerned my findings and I say my opinion is based on
 6       me identifying these individual clusters.  So it's not a
 7       matter of it's impossible or whatever.  That's in tune
 8       with my findings.  So I can't change my findings and, as
 9       a result of what I've found then, as far as I'm
10       concerned, that establishes at least two touches in that
11       top area.
12   Q.  Mr Mackenzie, you are obviously aware that a good number
13       of other individuals and indeed organisations
14       disagree with your views about the identity of Y7 being
15       Shirley McKie's.  You are aware of that clearly.  I
16       would like to ask you this: as far as Mr Wertheim is
17       concerned, I take it you are aware that at the time he
18       gave evidence in Shirley McKie's trial he had at least
19       200 hours of training by the FBI specifically relating
20       to latent prints.  Were you aware of that?
21   A.  No, I wasn't.
22   Q.  I take it that on the basis that you were saying that
23       one of the gifts you had was some engagement with the
24       FBI, you consider the FBI to be an organisation that
25       commands some considerable respect?
page   8
 1   A.  Sorry, could you repeat the first part of the question?
 2       Did you say gift?
 3   Q.  Yes, I think the word you used was "gifts".  You had a
 4       number of gifts, I think that is how it is recorded in
 5       the notes?
 6   A.  In relation to the FBI?
 7   Q.  Yes.  My recollection -- I stand to be corrected if I am
 8       in error about this -- is that you had a conversation
 9       with the FBI and some degree of training and guidance
10       from the FBI.  Have I got that wrong?
11   A.  I certainly never -- I've never mentioned gifts in
12       relation to the FBI.
13   THE CHAIRMAN:  I think it was, if I recollect correctly, it
14       was about Mr Meager and going to see him --
15   A.  I'm quite clear about that but I've never mentioned that
16       was a gift.
17   THE CHAIRMAN:  Whether one calls it a gift or not, what
18       Mr Meager --
19   A.  Part of my knowledge-gathering, if you like, or an
20       advance on my training because it was another issue that
21       opened my eye, then yes, I went to see Mr Meager.
22   MR SMITH:  I take it from what you said is that you hold the
23       FBI in general and certainly in particular Mr Meagre in
24       high regard.  Is that right?
25   A.  I think what I've said in my evidence already is I hold
page   9
 1       up many, many practitioners throughout the world in high
 2       regard and Mr Meager is obviously a very knowledgeable
 3       person.  I didn't single him out as being one I held in
 4       high regard.  I acknowledge there's a lot of people I
 5       hold in high regard.
 6   Q.  Mr Mackenzie, I am not trying to be obtuse about this.
 7       I am not suggesting there's only one person you hold in
 8       high regard.  I am simply asking whether it is your
 9       position that Mr Meager is held in high regard.
10           Is the answer to that yes?
11   A.  Mr Meager is held in high regard and he has, basically
12       like Mr Ashbaugh, has opened the world's eyes of experts
13       through his presentations basically what we've been
14       actually looking at for years but basically showing us
15       how we can articulate it and that's through his works in
16       the Daubert hearing.
17   Q.  Is the answer to that yes, that you do regard him --
18   A.  Yes, he's one of the persons, because he's obviously
19       very knowledgeable so if I have learned from Mr Meager
20       then I've got regard for him, high regard for him.
21   Q.  I am not sure the two necessarily follow, which is why I
22       want to be clear about it but can I ask you this:
23       generally speaking, is the FBI an organisation who, in
24       respect of fingerprint analysis, that you hold in high
25       regard?
page  10
 1   A.  Along with many other organisations, yes.
 2   Q.  Thank you.
 3           As far as training is concerned, as I mentioned to
 4       you, I think we will no doubt hear and we can see from
 5       Mr Wertheim's CV, as I mentioned to you he had at least
 6       200 FBI hours in addition to other training but
 7       specifically related to latent prints as at the time of
 8       Shirley McKie's trial.
 9           Against that background, would you agree that he is
10       someone who ought to be qualified and experienced and
11       trained to be able to speak on latent fingerprint
12       identification?
13   A.  He has obviously had input from other FBI as many other,
14       presumably American, Fingerprint Officers have; so what
15       the input from that is that I would take is it's
16       obviously been of value to Mr Wertheim and I know that I
17       actually had a look at the training.  That was one of
18       the aspects I was asked to look at when I was over at
19       the FBI.  So, yes, they do virtually the same training
20       as we do but they do it in a slightly different format
21       in it's condensed; whereas my training was over a seven
22       year period before I was authorised as a fingerprint
23       expert.
24           In 1999 when I was at the FBI, first of all, what I
25       noted was they were taking on science graduates as their
page  11
 1       trainees, if you like, and it was an intensive two year
 2       training programme they had at that point.  I don't know
 3       what Mr Wertheim's programme was but the actual FBI
 4       fingerprint experts were trained over a two-year period,
 5       much of which was classroom-based, which was different
 6       from the environment I had worked in where it was
 7       work-based and classroom-based.
 8   Q.  I am sure you are aware that Mr Wertheim's experience
 9       and training wasn't limited to the 200 FBI hours.  I am
10       just wondering why you are so reluctant to accept that
11       200 hours with the FBI is better than no hours with the
12       FBI.  Is that not a fair comment to say?
13   A.  I haven't said it's better than -- no hours with the
14       FBI.  If Mr Wertheim has taken a note that he spent
15       200 hours with the FBI then I've got to accept that,
16       just like anybody else, if they were actually noting
17       down how many hours training they had in their career
18       could probably, you know, articulate that but it's not
19       something I would do, note down I've got 200 hours.
20   THE CHAIRMAN:  I'm not sure if this is very profitable.  In
21       the end it will be for me to decide what weight to give
22       to Mr Wertheim and Mr Mackenzie's views, however
23       welcome, they are not really essential to this.
24   MR SMITH:  Very well, sir.
25           When you spoke to Mr Meager, this was after the
page  12
 1       Shirley McKie trial; that is right, isn't it?
 2   A.  That's correct.
 3   Q.  I take it you discussed the outcome with the trial with
 4       him, did you?
 5   A.  I was in Washington for a week round about the beginning
 6       of August 1999 and the remit I had been given by the
 7       then Chief Constable of Strathclyde, John Orr -- I don't
 8       know if he was Sir John Orr at that point -- was to look
 9       at the training methods of the FBI and court
10       presentation.  On that basis, I spent a week at the FBI
11       and there was no discussion whatsoever or mention of the
12       Shirley McKie case or the name Shirley McKie was never
13       raised.
14   Q.  I would like to ask you if I can about QI2.  If I have
15       understood your position as far as QI2 is concerned, you
16       obviously weren't involved in that at the outset.
17           I'm right about that much, aren't I?
18   A.  That's correct.
19   Q.  Can I ask for one of the images of this to be put up,
20       CO2005H.004.
21           I would like to ask you, if I can, about one
22       particular point in this.
23           Can I have the central area subject to highlight.  I
24       don't particularly want to do it myself because I might
25       not manage to do it, but if you can take in a particular
page  13
 1       part of the print itself.  That area is fine, thank you.
 2           I would like to ask you, if I can, about this area
 3       here (indicated) of the print and I will just mark it
 4       for the purposes of the record.
 5   A.  Can I interrupt there and ask for the original one I've
 6       marked up, please?
 7   Q.  I have identified the bit I would like you look at and
 8       then we will get the original to you.
 9   THE CHAIRMAN:  We will see if we can get you the original.
10       (Handed).
11   MR SMITH:  Can you identify that area, Mr Mackenzie, in your
12       own document in front of you?
13   A.  Yes.
14   Q.  Can I just be clear about this: did you see anything of
15       importance within that area that might assist in
16       identification or exclusion of that as compared with any
17       inked mark?
18   A.  All of the detail in the area is of importance and I've
19       taken cognisance of all of it.
20   Q.  Do you see the line at the top of the oval that's been
21       drawn that comes down?  I am trying to trace it; do you
22       see that?
23   A.  Okay.
24   Q.  The line below it -- I'm again tracing that, as I am --
25   A.  Okay.
page  14
 1   Q.  -- do you agree that appears to be two legs of a
 2       bifurcation or parting?
 3   A.  Two legs of a bifurcation?
 4   Q.  Yes.
 5   A.  No.
 6   Q.  I have tried to draw these in, not very well but --
 7   A.  I know what you're suggesting.  You're talking about the
 8       green lines on the left coming to a point.  Is that what
 9       you are suggesting?
10   Q.  Yes, the green lines are generally from left to right.
11       They are moving apart, splaying.
12   A.  There's no suggestion of a bifurcation.
13   Q.  I will draw a line in then if I can in there, in blue.
14       Are you able to see something that looks like that
15       (indicated) with the blue line coming to a stop?
16   A.  I think basically what you're showing is although the
17       right-hand side is not very accurate, it's an incipient
18       ridge.
19   Q.  If it was an incipient ridge the two legs of what I
20       suggest is looking like a bifurcation would not move
21       apart, would they?
22   A.  On this chance impression that's the position, that that
23       incipient ridge is in relation to these ridges on the
24       other side.  I've got no control over how that looks.
25       That's how that was placed on as a chance impression so
page  15
 1       there's no hard and fast -- I've heard other witnesses
 2       say it but it's quite clear in here that the incipient
 3       ridge runs between the two ridges, the two ridges that
 4       you've marked in green.
 5   Q.  Are we agreed that the two green lines are correctly
 6       placed, approximately, in respect of what appears at the
 7       end of them.  Are we agreed about that?
 8   A.  No, the upper one is actually coming down on the
 9       left-hand corner a bit too low.  It goes a bit higher
10       above that.
11   Q.  Even if it was slightly higher above it, Mr Mackenzie,
12       are we agreed broadly they appear to move apart?
13   A.  But broadly you have made the suggestion that they are
14       coming together there and they are not coming together
15       on the left.  The importance is that this incipient
16       ridge runs through between there and it's not as you
17       have drawn it with the green coming together.
18   THE CHAIRMAN:  Do you say they are two ridges, the green
19       lines?
20   A.  The green are two ridges, yes.
21   THE CHAIRMAN:  But you would not draw the left-hand side of
22       the upper one as low as this?
23   A.  As lower, no.  It suggests as though it's coming towards
24       the lower one but it's actually a fraction higher than
25       that.
page  16
 1   MR SMITH:  If what we have is the two green lines -- and I
 2       am prepared to accept the left-hand edge of the
 3       upper-most green line is maybe sloping down too much --
 4       but if we have a situation where the right ends of the
 5       green lines are moving apart with a ridge of some kind
 6       in between, are we agreed that there is nothing of that
 7       nature in the fingerprint of the late Marion Ross?  Are
 8       we agreed if that was right it would be a difference?
 9   A.  Sorry, nothing of that nature?  How do you mean, the
10       spacing?  Is that what you are saying?
11   Q.  First of all, is there an incipient ridge in that place
12       in Marion Ross's fingerprint?
13   A.  Yes, it is.
14   Q.  Are you agreeable to the suggestion that an incipient
15       ridge is something that obviously has to be between two
16       other ridges?  We are agreed with that much, aren't we?
17   A.  It's a statement of fact.  There are incipient ridges
18       appear in the furrows and they can, obviously, depending
19       on the growth, be at different heights, but they appear
20       between the normal ridges.
21   Q.  Your position in evidence is that you can have incipient
22       ridges that cause the adjacent two ridges to part.  Is
23       that right?
24   A.  It's not a matter of causing them to part; that's the
25       way they appear.  They can appear that way on a chance
page  17
 1       impression.  Sometimes they will actually appear,
 2       sometimes they won't, but it's all down to the
 3       deposition of the finger on the surface.  So, as far as
 4       their appearance and the ridges on either side, it's
 5       down to how the print's deposited.  You will never get a
 6       chance impression identical to a controlled impression
 7       unless, as what I suggested at the beginning was you
 8       were actually to get virtually a copper plate image left
 9       at the scene and a copper plate print taken of the
10       control print.  So you will never, ever in a finger -- a
11       finger will never record the same twice be it a chance
12       impression at a scene or even in a recorded print and
13       that goes for rolled and plain impressions.  There will
14       always be differences.
15   Q.  Mr Mackenzie, can I ask you this: if there will always
16       be differences what value is fingerprint technology in
17       comparing a latent against an inked print, if you can
18       always say any difference is due to a change in movement
19       or a squeeze or a pinch or a roll?
20   A.  I'm sorry, that's where the training comes in over many
21       years of observing how these differences appear and
22       certainly I know that, as I say, from my training, two
23       years for starters was getting your eye attuned to ridge
24       detail and comparing that with basically a person who
25       has possibly re-offended several times and it's -- every
page  18
 1       image will be different.  So that's down to experience.
 2       You take that into account but you also take it into
 3       account in relation to all the other information in the
 4       print.
 5   Q.  I wonder if we could have that image saved, please.
 6   A.  Could I add something before that's taken from the
 7       screen?  Just a comment.
 8   THE CHAIRMAN:  Just let us get this saved for the moment.
 9   MISS BAHRAMI:  That image is saved as FI0610.01.
10   MR SMITH:  Thank you.
11   THE CHAIRMAN:  You wanted to add something.
12   A.  My observation before it goes off the screen is the blue
13       line you have drawn, again I'm presuming you just mean
14       that roughly, that ridge, because the end of
15       that incipient ridge I have got marked just in from the
16       end of your upper green marking coming in from the left
17       in the blue markers there.  So where you've actually
18       marked is not actually the accurate ending of that
19       incipient ridge.  I think it's relevant that I point
20       that out when I can see it.
21   THE CHAIRMAN:  Does it end sooner or later?
22   A.  Sorry?
23   THE CHAIRMAN:  Does it end sooner or later?
24   A.  The blue line drawn by Mr Smith stops sooner.  The
25       dot -- have I control of the mouse?
page  19
 1   THE CHAIRMAN:  Well, maybe if you want to draw it further.
 2   A.  The cursor there (indicated) is my blue dot and the
 3       ridge, the incipient ridge, continues to that point
 4       (indicated).
 5   THE CHAIRMAN:  So it moves to the left, almost to -- it
 6       almost touches the upper green line.
 7   A.  Yes.  I think that's significant.  The reason I've
 8       raised it is I know this has been mentioned in the
 9       comparative exercise and from the clear copy that I have
10       that's the position of the end of that incipient ridge.
11   THE CHAIRMAN:  It gets a little more complicated because the
12       left-hand end of the green line is lower than you would
13       have drawn it yourself.
14   A.  Yes.
15   THE CHAIRMAN:  So when I say it comes to the green line as
16       drawn --
17   A.  As drawn, correct.  Thank you.
18   MR SMITH:  Finally, Mr Mackenzie, I don't think I am the
19       only person who noticed that when I commenced my
20       cross-examination you turned your back on me.
21           Can I be clear about this: have I done or said
22       something that has offended you in the course of this
23       matter?
24   A.  Mr Smith, this is actually part of my training.  I've
25       always been trained to address the judge, the sheriff or
page  20
 1       the jury and that's basically how I've positioned
 2       myself.  It would be the same for anybody else asking
 3       questions.
 4   Q.  I just want to be clear about it: there is not going to
 5       be any suggestion that I have been unfair in my
 6       questioning and the manner I have been presenting it?
 7   A.  Absolutely not and I'm making my position clear that's
 8       down to training.  So I can actually -- I know where I
 9       got the training as well if somebody wanted to ask me.
10   THE CHAIRMAN:  I must say I prefer the witness to be facing
11       my direction than the questioner.
12   A.  That's specifically in our court training.
13   THE CHAIRMAN:  Does that complete the cross-examination?
14       Thank you very much.
15           Miss Grahame do you have anything you wish to apply
16       to ask?
17   MISS GRAHAME:  No, thank you.
18   THE CHAIRMAN:  Mr Holmes?
19   MR HOLMES:  Yes, there are four issues that I would like to
20       cover with Mr Mackenzie: the first relates to the
21       techniques used to demonstrate fingerprint comparison;
22       the second relates to the areas of Mr Mackenzie's own
23       examination which I would like to clarify with him; the
24       third relates to the blind test, I have only one
25       question on that; the fourth relates to Mr Mackenzie's
page  21
 1       own presentation.
 2           I should add, sir, that there are two individual
 3       points within Y7 that I would intend to cover with
 4       Mr Mackenzie that have already been covered by Inquiry
 5       counsel.  The reason that I intend to do this in
 6       relation to the first is to deal with something
 7       specifically that was said by a previous witness when
 8       looking at the particular point and in relation to the
 9       second, it is to deal with something that it is
10       anticipated that another one of the expert witnesses
11       will say in their evidence.  It should be in relatively
12       short compass.
13   THE CHAIRMAN:  I think that gives me good reason to allow
14       you to cover something that has already been covered on
15       the point.
16   MR HOLMES:  I don't propose to cover anything to do with
17       QI2, sir, as Inquiry counsel has already stated that
18       Mr Mackenzie will give evidence in future about QI2.
19   THE CHAIRMAN:  Yes.
20                   Cross-examined by MR HOLMES
21   Q.  Mr Mackenzie, if I can ask you in the first place some
22       questions about the techniques that you are aware of for
23       the demonstration of fingerprint comparison, firstly,
24       some witnesses have mentioned the use of acetate
25       overlays for demonstrating similarities or in fact
page  22
 1       differences between fingerprints.
 2           Do we understand from this that you take a
 3       transparent sheet, place it over the crime scene mark,
 4       plot points or ridges on that sheet and then lay it over
 5       the known mark to demonstrate that they match or, in the
 6       case of differences, that they do not match?
 7   A.  You're talking about is that an established technique?
 8   Q.  Yes.  Is that something that can legitimately be used to
 9       demonstrate a fingerprint comparison?
10   A.  Certainly in relation to this case I have used an
11       acetate sheet both on Y7 for the Third Level Detail,
12       that scale, and QI2 I've also used it but it's a smaller
13       scale.  But the emphasis is there as what I said about
14       QI2 was there was specific ridge shapes that I was
15       examining this actual size under a magnifying glass that
16       actually stood out to me and hence the reason from the
17       enlargements that were produced for Mr Gilchrist I made
18       the transparencies.
19           So from that point of view -- and, again, that's
20       only a small area, it's not the whole area of the mark,
21       and it's not the whole area of a control print.  So in
22       this instance, I have chosen to use that, as I said, to
23       augment the initial comparison and results from that
24       comparison.
25           As far as -- I've actually been asked this question
page  23
 1       in court before, if I was to actually take a
 2       transparency over a mark and put it over a digit then I
 3       could see exactly the same and the answer to that is no.
 4       As I've already explained in one of the last questions
 5       to Mr Smith that the chances of a chance impression and
 6       a control print being copper plate identical with each
 7       other in every respect, there's no chance of that.
 8       Every mark and every control print when the
 9       print -- sorry, when the digit is touched on the article
10       or taken on ink on to paper, on every occasion that will
11       be different.  So -- but I have seen this in basically
12       television programmes where they actually you see it's
13       meant to be a Fingerprint Bureau, they're looking at an
14       expert and sometimes they have transparencies and they
15       go like this (indicated) but really that's the world of
16       fiction and that's what I'm talking about, a whole mark
17       and a whole finger, and it's not anything that we would
18       teach experts to do.  It's done on actual size, we use
19       the tools of the comparator and the final decision is
20       normally done under a magnifying glass, but having used
21       the tools to enhance, et cetera.  So transparencies is
22       not used as part of a training method.
23           In a similar manner, I've already mentioned about
24       Mr Zeelenberg and the grid.  I've never, ever seen
25       anything like that and that's the same proposal,
page  24
 1       basically, that a grid with numbered and lettered
 2       squares would show the same characteristics in the
 3       corresponding grid.  A chance impression is never --
 4       particularly a distorted one such as this -- is never
 5       going to have the same features in the same area of the
 6       grid or, I say, one transparency done from one laid
 7       over.  I hope that answers the question.
 8   Q.  I think so.  For reasons that you have given it is
 9       something that you would be content to use with a
10       smaller area but not with a mark in its entirety; is
11       that correct?
12   A.  Just for an appropriate area, I say, in support of other
13       identification that's been done.
14   Q.  In relation to the production of charted enlargements
15       for the demonstration of a comparison, you have seen the
16       enlargements that Mr Wertheim produced for the purposes
17       of this Inquiry which have on them areas marked by
18       different coloured circles.
19           Again, is that something that you regard as a
20       helpful approach?
21   A.  A helpful approach?  No, actually I found it confusing.
22       I've never, ever seen anything like that done, certainly
23       in any training forum I've been in, but that's the way
24       Mr Wertheim has chosen to do it for the comparative
25       exercise.  My understanding was that those taking part
page  25
 1       in it were actually marking characteristics or features
 2       that they could see.
 3   Q.  Thank you.
 4           Also in relation to charted enlargements I asked
 5       Mr Grigg about the enlargements prepared by Mr McLeod
 6       and, in particular, whether he would have used thick
 7       black lines and large dots to mark an enlargement.  You
 8       will recall that he said he wouldn't because it obscures
 9       detail.
10           Would you agree with that?
11   A.  Well, obviously using black that's why we've always been
12       taught to use red marker pens, very fine pointed special
13       marker pens for marking up photographic enlargements for
14       illustration purposes.  The use of a black pen is
15       obviously going to clash with the black ridges.  For
16       that reason I would never, ever have suggested using it
17       and I've never seen it used before and also if you make
18       big black heavy dots then you're going to obscure
19       potentially detail underneath that.
20           Could I add on the point of enlargements and it's
21       getting back to the FBI, because I said I did look at
22       the training, and one thing I did notice about their
23       illustrations for court, they were of the same manner as
24       were last produced by SCRO, in that I mean that one page
25       was dedicated to the mark and the other page beside it
page  26
 1       was dedicated to the control digit.
 2           Prior to going to America, the SCRO photographed
 3       mounted -- I'm not even talking the charting PC but the
 4       photograph mounted prints were cut and marked up on a
 5       pre-printed A4 sheet.  By pre-printed I mean because of
 6       the 16-point standard, then there were 16 numbers marked
 7       on one side of that A4 sheet and it was virtually -- it
 8       was landscape you were looking at like that (indicated)
 9       and there were 16 numbers pre-printed on a card and 16
10       numbers here and this was to assist the expert in rather
11       than in the past we used to use a stencil and to
12       actually make the presentation look better, then the
13       experts, where possible, used the pre-printed numbers
14       and then drew the lines out to the various
15       characteristics they were trying to illustrate.
16           There were exceptions to that, of course, possibly
17       if it was say a big area, a palm, or it was difficult to
18       get the lines to draw out from these specific numbers
19       then they would do it with the stencils.
20           After I come back from the FBI I decided that the
21       enlargements should be approximately twice the size they
22       were before.  So it was one-on-one page and one on the
23       other.
24           Also the FBI ones were probably -- on square
25       inches -- probably about nearly twice the size of an A4
page  27
 1       and they were on a heavy cardboard backing and the one
 2       difference was, what I can recall them doing was that
 3       depending on whether the expert was left-handed or
 4       right-handed then if they were right-handed and wanted
 5       to point to the illustration, they had this book, and
 6       you can imagine it was very difficult if it's twice this
 7       size of a page and the same again, trying to hold this
 8       card up.  If they were right-handed the mark would be on
 9       this side on the left-hand side (indicated) but if they
10       actually happened to be a left-handed officer they
11       actually put the mark nearest to them on the right-hand
12       side.  So that was the only differences and we didn't go
13       to the extent of that size of enlargement because I
14       thought it was actually cumbersome to try and operate
15       that.
16           So we did learn something in that perhaps we should
17       have a bigger size enlargement.
18   Q.  Thank you, Mr Mackenzie.  I will not spend any great
19       deal of time on your trip to Washington because you have
20       been asked about it by Inquiry Counsel and by my learned
21       friend, Mr Smith, but did you mention that that was --
22       when was it, 1999?
23   A.  It was approximately the first week in August 1999 and
24       the reason I can remember that specifically is that when
25       I spoke about material coming back from the court after
page  28
 1       Shirley McKie's trial, I understand that it was
 2       Mr Stewart who was tasked by Mr Bell to contact the
 3       Fiscals' Office and retrieve it and I understand that
 4       that took place during the time I was in Washington and
 5       it was thereafter when I arrived back in the office the
 6       material was there.
 7   Q.  You have mentioned the purpose of this was to give you a
 8       view of the way in which evidence was being presented by
 9       the FBI; is that correct?
10   A.  That's correct.
11   Q.  You have been asked by my learned friend, Mr Smith, if
12       this is an organisation that was held by you in high
13       regard.
14   A.  It is.
15   Q.  Did you find any differences between the way the FBI
16       were being trained to present evidence at that time and
17       the way that the SCRO, post McKie, were being trained to
18       do so?
19   A.  No, the only thing that I had picked up on is obviously
20       the use of new technology and I had suggested that back
21       at SCRO and in various forum thereafter in the run-up to
22       the changes to non-numeric because I was aware and been
23       made aware, obviously, that the courts in Scotland,
24       particularly the high courts, had technology which would
25       allow PowerPoint, et cetera, and what I was basically
page  29
 1       suggesting was we should maybe be looking at that as a
 2       medium for bringing forward our presentations, again
 3       just as a tool, not necessarily replace what we had but
 4       possibly that might be the future.  But my understanding
 5       was that obviously all courts at that stage, back in
 6       1999 and thereafter, actually weren't actually kitted
 7       out but it might be the case now that all courts are
 8       kitted out.
 9           Basically, because SCRO's very progressive in its
10       thinking in that we would always look at the methods
11       that we did, both within the Bureau and for court
12       purposes, and this was an area of basically looking at
13       the technology, SCRO had brought in all the various
14       technologies for comparing prints, et cetera, and
15       searching and I saw this as a next avenue that we could
16       go down looking at the technology.
17           Obviously, it would probably involve the officers
18       having a laptop or taking the information forward that
19       they could actually work with, for example, on a desk
20       like this (indicated).  So, I say, it was looking to the
21       future.
22           The FBI, I say, had obviously shown me
23       illustrations, et cetera, and I was aware that this was
24       a possibility that we could go down that road.
25   Q.  If I can move on to asking about the demonstration of
page  30
 1       what has been referred to as Third Level Detail, you
 2       have said in your evidence on Friday of last week that
 3       you had always taken notice of what is now referred to
 4       as Third Level Detail, though you have perhaps not used
 5       it in an illustrative manner.
 6           Is it fair to say from your answer there that any
 7       novelty in the approach taken by Mr Ashbaugh and others
 8       lies in articulating Third Level Detail rather than
 9       taking it into account anyway when you're doing your
10       examination?
11   A.  That's exactly it.  I think you have encompassed that
12       quite well, in that I think I've given the illustration
13       of the lake in particular in QI2 that I pointed to
14       actually stood out to me but it was actually the shape
15       of it, the actual shape of the ridge units, and that was
16       without major enlargement.
17           So it's at the assessment stage you take into
18       account all the detail you can see in a print and, as
19       has been pointed out, in Ashbaugh's training and in what
20       Mr Meager has said is that our eye unconsciously,
21       whether we've known about it in the past, but we've
22       actually been taking in all that detail and that's
23       actually how you come to, basically, focus in on a
24       target area or whatever.  It's not just what we were
25       trained to look for, Second Level Detail.  Actually our
page  31
 1       brain is taking that information in.  I think
 2       Mr Ashbaugh in his e-mail was asked to look at basically
 3       on Friday has actually laid that down quite clearly.
 4       It's basically the brain taking in all the information.
 5       So the answer is, yes, I've always done it.
 6   Q.  So can we take it from that that any suggestion that
 7       might be made that you had limited experience of
 8       examining Third Level Detail is not something that you
 9       would agree with?
10   A.  Third Level Detail, just like Second and First Level
11       Detail, is where all my experience is and to suggest
12       that in 39 and a half years in the Fingerprint Bureau I
13       don't have much knowledge or training is an affront, I
14       would say.
15   Q.  Finally on the demonstration of comparisons, can I ask
16       about the orientation of a mark.
17           When preparing an enlargement why is the orientation
18       of a mark important?
19   A.  In preparing an enlargement?  Yes, absolutely.  And
20       that's why you probably see within my presentation book
21       I've actually, parts of the photograph are trimmed, so
22       the photograph has actually been turning round, it's not
23       actually sitting, the actual frame of the photograph,
24       it's not sitting parallel to the book.  So basically
25       it's very important you get as close as possible to the
page  32
 1       orientation so that when you are drawing out these lines
 2       and, as I've already said previously, when it was a two
 3       to the one page, we had a pre-numbered page, and to draw
 4       the lines out to this specific points, it was very
 5       important you got the orientation right so that the
 6       lines would actually run in the correct direction.
 7   Q.  If I can move on to areas of your own examination that I
 8       would like to clarify, the first thing I want to ask is
 9       that you were asked by Inquiry Counsel whether the
10       maximum number of points in Y7 that you found in 1997
11       was 13.
12           What were you trying to do when you examined Y7?
13   A.  Obviously, I'd been asked to have a look at this mark
14       against elimination fingerprints of Shirley Cardwell, as
15       she was known then.  And my comparison was based on
16       assessing what I could see in the mark and then doing a
17       comparison against that control print to see whether I
18       could establish whether that mark was made by the person
19       making the control print.
20           Based on what I could see from my assessment, I was
21       satisfied that there was sufficient detail within the
22       area that I was looking at, which was the area I have
23       described as below the fault line, and on the control
24       print of Shirley McKie.  So I was satisfying myself as
25       to the identity of the donor of that print and that's
page  33
 1       the result I came to, that Shirley McKie was the donor
 2       of that mark.
 3   Q.  If you are merely looking to satisfy yourself as to the
 4       identity of a donor of a mark, is it necessary for you
 5       to seek out 16 points?
 6   A.  No, absolutely not.  Any expert, and I think there have
 7       been other experts that have actually given evidence
 8       here will tell you that it's not just magically -- a
 9       bell doesn't just ring in your head when you come to 16.
10       It can happen way before if you're actually counting
11       characteristic with characteristic and just because
12       there was a line in the sand at 16 doesn't mean and
13       would never mean to an expert that that was when they
14       came to their conclusion that that person was
15       identified.
16           It's much like I was saying about your brain taking
17       in the information.  You know as you are gradually
18       working your way through the characteristics, you know
19       in your head when you have an identification.  So 16 is
20       irrelevant as far as that's concerned.  The information
21       on identity will, in many, many occasions, come well
22       before 16.
23   Q.  Y7 was discovered in the course of an investigation
24       involving a large number of marks; is that correct?
25   A.  My understanding was it was in the hundreds, yes.
page  34
 1   Q.  So the most serious consequences that you would have in
 2       mind at the time when you were examining Y7, without the
 3       benefit of hindsight, would be that a police officer's
 4       fingerprint had been left at a crime scene.  Is that
 5       correct?
 6   A.  Correct.
 7   Q.  We have heard evidence that it is not the first time
 8       something like that had happened.  In fact, from Scene
 9       of Crime Officers who had left fingerprints at scenes
10       themselves we have heard evidence to the effect that
11       whilst it could be embarrassing it wasn't necessarily a
12       problem of any great significance for them.
13           Is that something with which you would agree?
14   A.  It's a regular occurrence, I wouldn't pin it down to the
15       number of days, but it's a regular occurrence that we
16       would find Scene of Crime Officers' prints or in fact
17       police officers' prints and the one that specifically
18       stands out to me and it was a major murder inquiry that
19       went on for weeks and it was actually one of the two
20       heads of CID in Strathclyde and I can actually remember
21       the officer's name, he's a Chief Superintendent, John
22       Fleming.  It turned out to be his print which was deemed
23       to be a significant mark and had been getting searched
24       through the national collection for weeks and my
25       understanding was that eventually, for whatever reason,
page  35
 1       I'm presuming that his name obviously hadn't been put
 2       forward or checked but it came to light that it was
 3       actually the head of the CID's print.  So that's the one
 4       that actually stands out to me.
 5           So, again, it's accepted that police officers will,
 6       you know, and do accidentally leave their prints at
 7       scenes.  I think some people have actually suggested
 8       they should be trained to keep their hands in their
 9       pockets.  This is obviously before, you now see them all
10       gloved, et cetera, and the television makes a great play
11       of it when you actually see a news item.  But it has
12       happened and no doubt it will still happen with somebody
13       without gloves.
14   Q.  Have you ever had to speak in court to the
15       identification of a householder or the relative of a
16       victim, someone with legitimate reason for their
17       fingerprints to have been recovered at a crime scene?
18   A.  From recollection within specific reports, if required,
19       I will have done.
20   Q.  If you have had to speak in court to an identification
21       of that nature, would you have done so to 16 points?
22   A.  Not necessarily, no.
23   Q.  You were never involved in the prosecution of Shirley
24       McKie and did not at any time have to mark up 16 for
25       court purposes, did you?
page  36
 1   A.  No, I wasn't and, no, I didn't.
 2   Q.  The last thing on Y7, Mr Mackenzie, is that you have
 3       highlighted five different areas of comparison in your
 4       own presentation but you were at some pains to make it
 5       clear that five areas of comparison does not necessarily
 6       indicate five different touches.  Is that correct?
 7   A.  I didn't -- as you say, five areas of comparison.  I
 8       said there was five areas of interest I think I possibly
 9       described it as.  I say, my presentation was my notes,
10       if you like.  It started off with the core area of the
11       print was where I focused on when I first looked at the
12       mark in assessing it and I then moved out to the area to
13       the right of that, which I think I called the lower
14       segment and then further out I had taken cognisance of
15       the area which ended up with the Third Level Detail in
16       it.
17           So the thought process was three different areas I
18       was looking at but not saying that they were alien from
19       each other but that was three areas of interest.  And
20       then within the top area I knew there was movement of at
21       least more than one touch and I've gone on to basically
22       identify areas in that area.  So that's, if you like,
23       five areas of interest.
24           The bottom area, obviously, I have proven from the
25       core area right across and into the Third Level Detail
page  37
 1       area and I've illustrated it's in sequence and
 2       agreement.  So that's actually one area but with the
 3       swivelling of the thumb.
 4   Q.  So if I can ask when you say that there are five areas
 5       of interest or that there are five areas in which you
 6       have carried out a comparison, that does not necessarily
 7       indicate five different touches; is that right?
 8   A.  Certainly not five different touches because I've now
 9       proven that the area below the fault line is actually --
10       the three areas of interest are actually one piece.
11   Q.  Would you expect any expert to realise that?
12   A.  Any expert that had taken the time and properly taken
13       cognisance of, as I said at the beginning: the red flag,
14       the fault line, the disturbance in the top of the mark,
15       then if they had carried out their initial assessment
16       correctly and then gone into a comparison, and if they
17       had come to the same conclusions that I have, then
18       obviously they would have been taking it into
19       consideration.
20   Q.  If I can ask you one question about the blind test, you
21       were asked why the word "elimination" was used in
22       relation to what has now become known as the blind test.
23           Would the officers who were asked whether they would
24       eliminate the mark understand that they were being asked
25       to satisfy themselves as to the identity of the donor of
page  38
 1       that mark?
 2   A.  That would be my understanding.
 3   Q.  I will move on, finally, to your own presentation.  The
 4       first point I would like to clear up relates to points
 5       34 and 35 that you have marked in your own presentation.
 6       Do you have the book available to you?
 7   A.  Yes.
 8   Q.  Can you see points 34 and 35 where you have marked them?
 9   A.  Yes.
10   Q.  Mr Mackenzie, is it page 28 that you have marked 34 and
11       35 on?
12   A.  Yes.
13   Q.  There appears on page 28 to be a gap between these
14       points; is that correct?
15   A.  That's correct.
16   Q.  If it is suggested that this gap came about as a result
17       of the damage to the mark in the area of the fault line,
18       what would your comment be on that?
19   A.  Within the mark Y7, there's a clear break, as I've
20       illustrated also on the enlargement on page 27, which is
21       an enlargement taken out of the previous page that you
22       mentioned, on page 11.  It is a photographic enlargement
23       by the Photographic Department in Strathclyde took an
24       enlargement out of that area from the enlargement shown
25       on page 11.  It's quite clearly the break there on the
page  39
 1       original Y7.
 2   Q.  I wonder if you could have a look at an image for me,
 3       please, TS0006.  It is page 2 of that document.  Can you
 4       rotate that anticlockwise, please.
 5           Mr Mackenzie, if you would like to enlarge any area
 6       of the mark here so that you can see points 34 and 35.
 7   A.  Okay.  Do you want me to put a marker on them?
 8   Q.  Yes, if you are able to mark points 34 and 35 within
 9       that image, that would be helpful.
10   A.  Okay.
11   Q.  Are you content with that image?
12   A.  Sorry?
13   Q.  Are you happy with that image?
14   A.  I'm happy with that image, yes.
15   Q.  The top most of the two, is that point 34?
16   A.  That's point 34, yes.
17   Q.  Making the bottom one 35.  Can you see a clear gap
18       between the two?
19   A.  I can.
20   THE CHAIRMAN:  Can we just have the numbers marked on them
21       so that it is quite clear, in fact, what we are talking
22       about.
23   MR HOLMES:  Certainly, sir.
24   THE CHAIRMAN:  It is just being done now.
25   A.  35 is the lower one; 34 is the upper one.
page  40
 1   THE CHAIRMAN:  If we come back to it, sometimes it is
 2       difficult just to follow.
 3   MR HOLMES:  The gap between the two points that you can
 4       quite clearly see on that image; is that correct,
 5       Mr Mackenzie?
 6   A.  That's correct.
 7   Q.  This image is an image that was taken by Mr Kent and was
 8       taken prior to any damage occurring to the mark.  So my
 9       question is: is the explanation that the gap between 34
10       and 35 was caused by damage in the area of the fault
11       line, that can't be correct, can it?
12   A.  That's incorrect.
13   MR HOLMES:  Can you record that image, please?
14   MISS BAHRAMI:  That's FI0610.02.
15   MR HOLMES:  Thank you.
16           The second individual point that I would like to
17       speak to you about, Mr Mackenzie, is what has become
18       known as the Rosetta characteristic.  It has been
19       suggested that some individuals regard the presence of
20       the Rosetta characteristic as a difference, some regard
21       it as a similarity, depending upon its position.  You
22       were asked by Mr Moynihan about the placement of the
23       Rosetta characteristic.
24           Mr Wertheim, on day 23 of the Inquiry, was asked
25       about the same thing.  Mr Wertheim took two of
page  41
 1       Mr Swann's images and marked from the core to the
 2       Rosetta characteristic and, if you recall, he counted
 3       from the core to the Rosetta on each one.  On the basis
 4       of the difference between the counts he claimed that
 5       Mr Swann was mistaken and that he obviously did not
 6       review his own work.  Mr Wertheim was quite animated at
 7       this point.
 8           Do you recall that point in the evidence?
 9   A.  I do, yes.
10   Q.  Can I show you image FI2309.14, please?
11   MR MOYNIHAN:  Sir, I can speed matters up.  I know even
12       Mr Wertheim will readily accept that the two charts he
13       looked at are two different matters therefore that
14       evidence from him is wrong.
15   THE CHAIRMAN:  Yes.  That seemed to be my recollection now I
16       am reminded of it, that he accepted --
17   MR HOLMES:  Not during the evidence.
18   MR MOYNIHAN:  No.  He has not during evidence but in fact he
19       had intimated to me lines of cross-examination for
20       himself and because time was short I didn't put the
21       matter to him: the point that he accepted was that chart
22       N for Nicholas is the one that relates to the Rosetta,
23       chart M, I think he simply bit confused, in the brief
24       period he looked at it in the witness box, he simply
25       confused a point that was there in chart M for Michael.
page  42
 1       Accordingly, if the point you are seeking to make is
 2       that Mr Wertheim looked at the wrong charts and drew the
 3       wrong conclusions, that's a matter he will readily
 4       accept.
 5   THE CHAIRMAN:  As long as we have it recorded.
 6   MR SMITH:  It should be recalled, of course, I represent
 7       Mr Wertheim as well.
 8           My recollection of the evidence was that he asked
 9       Mr Moynihan to confirm on the two charts they both
10       represented the Rosetta point and that was affirmative
11       and so I think lest there be any criticism of him making
12       the assumption, I think it is fair to record that he
13       asked, "Do these both represent the Rosetta point" and
14       the answer, I think, from Mr Moynihan was, "Yes, I think
15       they do", and on that basis he gave his evidence that
16       the ridge count was different.  We can no doubt check
17       the transcript but I think in fairness to Mr Wertheim it
18       should be clear.
19   THE CHAIRMAN:  Is that sufficient for your purposes or do
20       you want to --
21   MR HOLMES:  In the light of what has been said, sir, if
22       Mr Wertheim is now accepting that in the second charting
23       he failed to mark the Rosetta characteristic perhaps
24       it's more properly a matter for submission than to be
25       taken up with another witness.
page  43
 1   THE CHAIRMAN:  I don't think Mr Mackenzie needs to deal with
 2       it, if that is the position.
 3   MR HOLMES:  I am obliged, sir.  In the light of that I have
 4       no further questions for Mr Mackenzie.
 5   THE CHAIRMAN:  Thank you.
 6           Have you anything?
 7   MR MOYNIHAN:  I have no further questions, sir.
 8   THE CHAIRMAN:  I just want to ask you while you are here to
 9       clarify one matter for me, first of all, and that is
10       when I was reading the transcript I wasn't absolutely
11       clear of your description of point 14 on Y7 and just for
12       my own assistance could you just -- you remember that
13       you went through all the various points saying what they
14       were and it may be my fault but I couldn't quite follow
15       what point 14 was.
16   A.  Point 14 is a bifurcation downward.
17   THE CHAIRMAN:  That clarifies that.  Thank you very much.
18           The other matter I wanted to ask you about is I
19       understand from your evidence that the first thing that
20       happens is the lower part of the thumb makes contact.
21       Then you say the upper part is lifted slightly and put
22       down again and then lifted slightly again and put down.
23       I just want to know why do you say "slightly"?
24   A.  It's obviously because of the position of the clusters
25       that I have.  It's obviously lifted slightly and the
page  44
 1       fault line is the key to the separation, if you like, of
 2       the lower and the upper half.  The first deposition that
 3       I have identified is the numbers that were marked in red
 4       and then the next deposition is the numbers I've marked
 5       in magenta so the finger has obviously had to lift
 6       fractionally another time to move in that position.  So
 7       that's what I mean by slightly or marginally.
 8   THE CHAIRMAN:  Fractionally or whatever?
 9   A.  Whatever term.
10   THE CHAIRMAN:  But it is not --
11   A.  It's not massive.  It's just -- well, obviously I wasn't
12       there but it's minuscule movement.
13   THE CHAIRMAN:  It ceases to be in direct contact, comes back
14       into contact again.
15   A.  Yes.
16   THE CHAIRMAN:  So that would not happen or would it -- or
17       maybe you are not able to answer this -- if somebody
18       was, as it were, swivelling on that finger, if you
19       understand what I mean.
20   A.  If that had swivelled then these two groups of
21       characteristics wouldn't have been in position.
22   THE CHAIRMAN:  Wouldn't be in the same position so there has
23       to be, obviously, a clear lift.
24   A.  Sir, it's my finding's based on characteristics I've
25       found that brings me to the conclusion that that's what
page  45
 1       the deposition was.
 2   THE CHAIRMAN:  On a different topic, I appreciate that for
 3       this Inquiry you were looking at different versions (in
 4       other words, the Internet and so on).  Normally -- and I
 5       am talking now about in the lab and carrying out an
 6       investigation or an examination, would you look at just
 7       one?  Would you choose, say, the plain print to compare
 8       with or would you choose to look both at the plain print
 9       and the rolled print?  How would an examiner normally do
10       it?  Would you normally do it against one or against
11       more than one?
12   A.  Being the benefit of being a fingerprint bureau and
13       depending on the nature of the person with the control
14       print, on this occasion we are looking at an elimination
15       and normally a police officer would be one card; whereas
16       if it's an offender or somebody held on file, they may
17       have one form with a rolled impression and a plain
18       impression and if that was the case then you would
19       utilise both.  And I think I mentioned in the McNamee
20       case I actually used both.  It was unique to me.  I
21       haven't seen any other expert actually illustrate using
22       both.  So you use what is available to you.
23           But within the Fingerprint Bureau it is not uncommon
24       for people to re-offend and have 20/30-odd forms.  So in
25       a comparison situation if a person has been suggested by
page  46
 1       a detective officer as a possible suspect, not arrested
 2       at that stage, then the availability to the
 3       fingerprint officer is a collection of fingerprint
 4       forms, potentially.  So the answer to that is it could
 5       be 20 forms times two digits, rolled and plain.  So you
 6       could have 40 impressions to look at.
 7   THE CHAIRMAN:  So you would use whatever is available to
 8       you?
 9   A.  Absolutely because it's sometimes -- sometimes it's not
10       the mark that's lacking; it's the control print.  That's
11       why it's important, when there are arrest prints taken
12       as well, that they are taken well because it's the
13       arrest print that normally ends up in court in the final
14       comparison, although initially if it had been a suspect
15       that had been compared or if the AFR (the Automatic
16       Fingerprint Recognition System) had suggested a
17       candidate and a form had been pulled out the collection
18       then that wouldn't necessarily be the form that ended up
19       in court unless that person, at the same time as
20       the marks were coming in, their arrest form come in at
21       the same time.  So we would also check, if that was the
22       case, we would check from -- the crime reference numbers
23       would be recorded on the fingerprint form and if there
24       was one for the specific crime and it had never been
25       compared and it was only coming from the Identification
page  47
 1       Bureau, the marks, then we would pick the arrest form
 2       obviously, but even at that -- if the arrest form didn't
 3       have sufficient detail to complete the comparison
 4       sufficiently, then we could make reference to the others
 5       and you could also get warrants to re-fingerprint
 6       people.  So it was all the material we had available to
 7       us.
 8   THE CHAIRMAN:  The reason I was asking was because of your
 9       explanation that sometimes a feature can look like a
10       bifurcation on one print and can look like a ridge
11       ending on another and I was interested to know how, if
12       you are only given one print to compare with, how you
13       can be sure when you are doing it.
14   A.  That's it, you've got the decision to make and that is
15       all you have and, for example, the roll was smudged and
16       you only had the plain, you basically can only work with
17       what you've got.  So there is a decision making and
18       somebody may have been excluded in a particular part of
19       a mark not being present on the form.  So it's a
20       decision that an expert's got to make on the material
21       they have got in front of them.
22   THE CHAIRMAN:  The last thing I wanted to ask you about was:
23       I understand from your evidence that the first thing you
24       do is you look at the mark and evaluate it and then you
25       look at it through glass --
page  48
 1   A.  Magnifying glasses.
 2   THE CHAIRMAN:  -- then later you might go to the comparator.
 3           In the blind test, they were being asked to go
 4       straight to the comparator, in other words to stage 3.
 5       So in some ways it wasn't a satisfactory way, in
 6       accordance with your way of doing things.
 7   A.  Yes, I understand that but --
 8   THE CHAIRMAN:  It wasn't a good way to begin with the
 9       comparator.
10   A.  It was a different scenario altogether and probably a
11       way of keeping it -- I mean, it was a way of keeping it
12       anonymised but it was not as you would normally do but
13       it wasn't a normal like-for-like comparison as you would
14       do, and I have heard other witnesses and it was
15       different, but that's the way it was and part of the
16       reason for that was to keep the thing anonymised and for
17       there to have been a suggestion that people knew in the
18       office that's what that was about, not to my knowledge.
19       So that was the whole idea of that scenario of keeping
20       it blind so that they didn't know where the mark was
21       from and they didn't know the ...
22   THE CHAIRMAN:  I fully understand that you say this was an
23       exercise and it wasn't to do with the identification,
24       but had it been to do with confirming the identification
25       it would have been an unsatisfactory way to do it
page  49
 1       because it wasn't following the procedure that you would
 2       recommend.
 3   A.  It would have been the same manner as I got it, you
 4       would have had the mark and the form if you wanted to
 5       widen it out but it was a separate scenario altogether
 6       so, I say, that's the way it should be viewed.  I can
 7       understand how it's grown arms and legs in people's
 8       opinions but that's how it was done in that event and
 9       I've heard other witnesses speak to they would rather
10       looked at it on the desk but because of keeping the
11       anonymity to it then that was how it was organised.
12   THE CHAIRMAN:  Thank you very much.  I am afraid you have
13       had a very long spell but I am grateful to you for the
14       help you've given me.
15   A.  I am just glad to have been given the opportunity after
16       all this time.
17   THE CHAIRMAN:  I was very anxious, I should say, that
18       you should have a full opportunity.  I hope you feel you
19       have had one.  I could not ask you to stay much longer
20       but there we are.
21   A.  I will stay as long as you wish.
22                      (The witness withdrew)
23   THE CHAIRMAN:  I think we still have a little bit to go
24       before the usual morning break unless you wish to take
25       it earlier.
page  50
 1   MR MOYNIHAN:  The next witness would be Mr Dunbar.
 2   THE CHAIRMAN:  Mr Dunbar, I think, is here so perhaps we can
 3       make a start.
 4                    ALAN SCOTT DUNBAR (sworn)
 5   THE CHAIRMAN:  Your full name?
 6   A.  Alan Scott Dunbar.
 7                     Examined by MR MOYNIHAN
 8   Q.  Mr Dunbar, do you have a copy of your Inquiry statement
 9       with you?
10   A.  I do, Mr Moynihan.
11   Q.  Your Inquiry statement the code for us is FI0053.  I
12       understand that you have two corrections to make to it.
13       First of all, in paragraph 7 there is a correction of
14       the ISO number.  In the second last line, as I
15       understand, you wish instead of ISO 9000 it should read
16       ISO 9001?
17   A.  That's correct.  This last sentence actually should
18       read:
19           "This became the ISO 9002: 1994 accreditation ..."
20       And then it goes on to say -- sorry, I beg your pardon.
21           If we could go to the previous sentence where it
22       mentions ISO 9002, after that it should have a colon and
23       "1994" after it.  The next sentence should be:
24           This became the ISO 9001: 2000 accreditation."
25           Whilst it may not seem very important, they
page  51
 1       certainly were two different accreditations.
 2   Q.  The second correction is paragraph 119?
 3   A.  That's correct.  The last sentence does not seem to make
 4       any real sense, reading it retrospectively.  It should
 5       finish:
 6           "... and was not rolled enough or tipped enough to
 7       the right of the left thumb."
 8   Q.  If I bring it up, page 24 is one reference I have that
 9       may be close to this.  In fact, if I go on to the next
10       page, you say in the last sentence it says:
11           "The form could have been clearer as it was and was
12       not rolled enough or tipped enough to the right of the
13       left of the thumb."
14   A.  Yes, and it should be "to the right of the left thumb."
15   Q.  The second and third last words "of the" are simply
16       deleted?
17   A.  Yes, that's correct.  Thank you.
18   Q.  Subject to those corrections, are you content that the
19       statement you have given to the Inquiry is the truth as
20       far as you can recollect it?
21   A.  Indeed, yes.
22   Q.  Having made those corrections, what I want to do is to
23       concentrate to begin with in relation to the blind test
24       and that period in February 1997 but, before I do, I
25       just want to be clear about terminology.  If I begin in
page  52
 1       relation to terminology by taking us to pages 15 and 16
 2       of your text, paragraphs 69 and 70.  You explain a
 3       distinction in paragraph 69 with:
 4           "An identification for court purposes in 1997 was
 5       understood to require 16 points in sequence and
 6       agreement."
 7           In paragraph 70 you say that:
 8           "A Fingerprint Officer could make an elimination on
 9       a lower number."
10   A.  If I could just clarify, in paragraph 69 that would
11       certainly be the normal for a volume crime case, for an
12       everyday case, but when it came to illustrations for
13       elimination, proof of ownership or indeed a mark that
14       was deemed to be dire and crucial to the investigation
15       or indeed to the prosecution, then 16 didn't come into
16       it.
17   Q.  So ordinarily 16 points would be the standard --
18       ordinarily for court?
19   A.  On a day-to-day basis with volume crime, yes.
20   Q.  Let us take the point you mentioned in relation to dire
21       and crucial.  We are here dealing with, in our case, a
22       murder, the murder of Marion Ross.  Ordinarily would you
23       understand the Fingerprint Officers to be working, if it
24       were an identification for court purposes, to the
25       standard of 16?
page  53
 1   A.  In an investigation this size, impressions would be
 2       viewed -- sorry, would be compared with a view to either
 3       excluding, eliminating or identifying within that series
 4       of marks.  Now, as you'll appreciate, in this you have
 5       already mentioned this morning that there was a vast
 6       number of marks involved.  So the Fingerprint Officers
 7       themselves, what they are trying to do is keep narrowing
 8       it down and accounting for the number of marks that are
 9       still left and available for comparison.
10           Now, at this particular time, I don't think that 16
11       or anything would bear any relevance at that point in
12       the comparison.
13   Q.  At the point, as you say, of accounting for prints they
14       might be excluded as, for example, the fingerprint of a
15       relative or they might be carried forward for further
16       consideration as a possible suspect.  Is that the way it
17       works?
18   A.  Yes, but to clarify, when you have that many marks it's
19       very, very easy to say we discard everything that
20       doesn't come up to what we deem sufficient for
21       comparison.  That assessment adjusts as the examination
22       continues, especially with a huge volume of marks like
23       this.  So discussions would be ongoing on certain
24       impressions whereby when we start a comparison and
25       realise after maybe four or five elimination comparisons
page  54
 1       or four or five suspect comparisons that indeed it was
 2       insufficient and you could not individualise that mark
 3       to a person.  It would be then discarded.
 4           To suggest that we take out the insufficient marks
 5       first is not quite the true sense, in practical terms,
 6       in an investigation this size.
 7   Q.  I understand that then.  So a mark you may, as an
 8       examiner back then, have started to work with but then
 9       appreciate, after a number of comparisons, that there is
10       indeed too little detail in it to individualise --
11   A.  Absolutely.
12   Q.  -- and therefore you would exclude that mark from
13       further consideration?
14   A.  Yes, but again to clarify, it wouldn't be discarded in
15       the sense of permanence.  It would always be there for
16       investigation once again.
17   Q.  But we don't understand if there are successive officers
18       that the next person gets the whole bundle of 340 or so
19       fingerprints.
20   A.  Correct, yes.
21   Q.  He will look at what remains to be worked with, some
22       having been discarded?
23   A.  Yes.  They are stored in a completely separate place and
24       identified on the work sheets as eliminated or
25       insufficient.
page  55
 1   Q.  Again, to use your generic term "accounted for", let us
 2       say the officer is proceeding and we know -- we have the
 3       work sheets where the officer is looking at a number of
 4       individuals -- some work sheets relate to lay people who
 5       are neighbours, relatives and the like, people who are
 6       thought to have an innocent explanation for being there;
 7       there will be separate work sheets for possible
 8       suspects --
 9   A.  Yes.
10   Q.  Let us say the Fingerprint Officer is simply working
11       through relatives and neighbours, those with an innocent
12       explanation, and he is accounting for the mark.  The
13       officer may determine that the mark is to be attributed
14       to a neighbour or relative on fewer than 16 points.
15   A.  Indeed.
16   Q.  If the officer makes that attribution on fewer than
17       16 points, you would accept that, for the sake of
18       clarity, as being described as an elimination?
19   A.  Yes, that's what it is, yes.
20   Q.  In this particular instance, are you aware that Mr David
21       Asbury began in the investigation as someone who was
22       within that list, an individual who had an innocent
23       reason for having been in the house?  That is because he
24       was one of a member of a building team who was
25       responsible for some renovation works.
page  56
 1   A.  I only discovered that at a later date, yes.
 2   Q.  That is why I am trying to clarify this distinction.  If
 3       Mr Asbury was viewed as simply a builder working in the
 4       house some years before, his fingerprint might be
 5       attributed or Y7 or -- sorry, let me start again -- a
 6       mark which is his (for example, XF) might be attributed
 7       to him originally as an elimination that is with an
 8       officer not concerning himself as to whether or not he
 9       could find 16 points.
10   A.  The one proviso with that is any officer who declares an
11       elimination can still expect to present and prepare to
12       present that in court.  So it's an irrelevance
13       whether it's 8, 10 or 16.  If you have declared it as an
14       elimination, you are saying it belongs to that
15       individual and, quite point in fact, more than regularly
16       in a serious crime you would be asked to prove that.
17   Q.  The proof of the pudding is in the eating in this case.
18       Mr Asbury was one day simply one of a collection of
19       builders and the next day became a police suspect.
20   A.  Yes, if that's what you're telling me, yes.
21   Q.  So that someone who is a Fingerprint Officer who is
22       accounting for a mark and attributing ownership of it
23       will be aware that today's builder could be tomorrow's
24       suspect?
25   A.  Indeed, indeed.
page  57
 1   Q.  However -- and this is why I wanted to draw the
 2       distinction between an elimination and an identification
 3       for court purposes -- you might, as a Fingerprint
 4       Officer, attribute ownership of a mark (for example, to
 5       a builder) on as few as eight points in sequence and
 6       agreement?
 7   A.  Well, again, I've heard these numbers from people from
 8       the training centre and all the rest of it but I think
 9       that would be the low end of the recognition at that
10       time.
11   Q.  Because the phrase "around eight" is, in fact, in your
12       paragraph 70.
13   A.  Yes, because that was the general belief at that time,
14       yes.
15   Q.  So you could, therefore, attribute ownership of a mark
16       to someone like a builder with as few as eight points in
17       sequence and agreement?
18   A.  Yes, that's correct.
19   Q.  Let us assume, for the sake of argument, that a
20       Fingerprint Examiner has made that attribution.  He has
21       attributed the mark to Mr Asbury, an innocent builder,
22       on eight points.  Then the police come back and say, "In
23       fact, Mr Asbury is now a suspect".  Would you expect the
24       Fingerprint Officer to revisit his comparison to see
25       whether or not he could obtain the standard of 16?
page  58
 1   A.  As I've just explained, by declaring that person an
 2       elimination then you are fully adhering an
 3       identification to that individual.  So if it has eight
 4       characteristics and the prosecutor wants to go ahead
 5       with that and it only has eight characteristics,
 6       irrespective of whether it is reviewed again or not,
 7       then I would anticipate that going to court.
 8   THE CHAIRMAN:  But would he be asked to look at it again and
 9       see if he could get the 16 for court purposes?
10   A.  In the preparation and presentation, he certainly would,
11       he or she would look at that.
12   THE CHAIRMAN:  So, in effect, he or she would look at it
13       again.
14   A.  Always, yes.
15   MR MOYNIHAN:  We will just continue with this particular
16       point.  I am just having difficulty understanding.  You
17       say very clearly in paragraph 69:
18           "In relation to identifications in 1997 we operated
19       to a 16-point standard which was inherited.  For the
20       purposes of taking evidence of an identification to
21       court, it was deemed that 16 characteristics in sequence
22       and agreement were necessary."
23           So what I have been putting to you is an officer who
24       had, as you say, eliminated Mr Asbury as simply an
25       innocent builder, when it comes back to him from the
page  59
 1       prosecutor he would have to go back and look and see
 2       whether he could satisfy the 16-point standard?
 3   A.  He would do that anyway.  He or she would do that anyway
 4       but it wouldn't negate the fact that that mark or marks
 5       could be presented in evidence, even if it didn't reach
 6       16 characteristics.
 7   Q.  Let us take that stage on.  Let us say the individual
 8       examiner remains at eight points.
 9   A.  Yes.
10   Q.  As you say, there might be, we understand, in practice
11       an exception made for a dire and crucial mark.
12   A.  Indeed.
13   Q.  Who determines whether the mark is dire and crucial?
14   A.  It would be a culmination of decisions.  Latterly, in
15       SCRO -- I can only speak within that organisation -- it
16       was put in front of the Director, whom I believe you had
17       evidence from prior, Mr Harry Bell, and all the
18       information would be gathered, put in front of him and
19       he would make the initial decision of dire and crucial.
20       But that's internal to the Bureau.
21           It would then go to the Police Service who were the
22       ones who had give us the investigation to look at and,
23       ultimately, if he or she decided, the senior
24       investigation officer, that it should go to the court
25       and obviously the prosecutors would make that decision,
page  60
 1       if it was dire and crucial.
 2   Q.  This is the question that, in fact, I am coming to ask
 3       you.  You as a Fingerprint Officer know only about the
 4       fingerprint evidence in a case?
 5   A.  Yes, that's correct.
 6   Q.  Who is it then who determines that a fingerprint in any
 7       particular case is dire and crucial?
 8   A.  That's what I'm saying.  We take guidance from the
 9       submission -- the Senior Investigating Officer and any
10       feedback from the Fiscals' Department, the Jury Service,
11       but it's certainly not SCRO who would make that decision
12       to present that evidence.  We would take guidance on
13       that fact.
14   Q.  Because it would have to be the prosecutor --
15   A.  Indeed.
16   Q.  -- who would require to know whether this fingerprint
17       made all the difference to his prospects of prosecution
18       or was simply one of as a thousand adminicles of
19       evidence against an accused?
20   A.  Yes, I accept that, yes.
21   Q.  How then does the prosecutor learn that there is the
22       possibility of a mark being attributed to, let's say,
23       Mr Asbury but the Fingerprint Examiner has only found
24       eight points in sequence and agreement and has not
25       satisfied the 16-point standard?  How is that advised to
page  61
 1       the prosecutor?
 2   A.  That information would go to Senior Investigating
 3       Officer.  In fact, latterly what we did, we appended a
 4       copy of the National Standard that came from the
 5       recommendations of '53 and '83 and it covered the fact
 6       of dire and crucial.  So it was intimating to the
 7       Prosecution Service that they had this decision to make:
 8       we have something with less than 16 characteristics in
 9       sequence and agreement, however, we have this certain
10       amount, whatever that may be, 8 or 11 I have no idea.
11       The phraseology was it fell below the current national
12       standard.
13   Q.  So that the Fingerprint Bureau would accordingly report
14       ultimately to the Procurator Fiscal that there was a
15       range of findings, some of which attained the National
16       Standard, some of which did not?
17   A.  If you're talking about single marks from one person
18       then that would be the case.  You have heard previous
19       witnesses discussing the fact that when an individual
20       was identified to the 16-point standard and there was
21       other supplementary marks that did not attain that,
22       these would be inserted but it would be claimed in
23       evidence that they didn't reach that.
24   Q.  Did you yourself have experience of cases in which a
25       mark with fewer than 16 points was taken to court by
page  62
 1       prosecutors based on the dire and crucial exception?
 2   A.  Prior to this time, I was certainly involved in the
 3       preparation of information going to the Prosecution
 4       Service.  Until 1999 I would suggest that they chose not
 5       to take it, in my memory.  I can't give you a specific
 6       of an instance when the prosecutors actually went ahead
 7       with this information.
 8   MR MOYNIHAN:  That might be a convenient point.
 9   THE CHAIRMAN:  If that is a convenient moment we will sit
10       again at 12.00.
11   (11.40 am)
12                         (A short break)
13   (12.00 pm)
14   MR MOYNIHAN:  Mr Dunbar, what I am going to do is continue
15       on the same theme of elimination, identification and the
16       16-point standard.  What I want to do is, in fact, to
17       take it in its natural setting.  I want to look at the
18       events in February 1997 and see the decisions that were
19       being taken within the Bureau.
20           First of all, from your own statement, I understand
21       you were involved yourself in comparisons, firstly, on
22       17th February?
23   A.  That's correct, yes.
24   Q.  And then again on the 18th?
25   A.  A re-examination, yes.
page  63
 1   Q.  So far as the 17th is concerned, this was Y7?
 2   A.  Indeed.
 3   Q.  Then thought to be the fingerprint of a police officer,
 4       a lady, Constable Cardwell, now referred to as Ms McKie?
 5   A.  Correct.
 6   Q.  If I understand it correctly, you say that your memory
 7       is that you were, first of all, happy to attribute
 8       ownership of that mark Y7 to Ms McKie?
 9   A.  I was satisfied, yes, after comparison.
10   Q.  As best you can recollect, you saw at least ten
11       characteristics in sequence and agreement?
12   A.  If I could just clarify that, I've actually no
13       recollection of the exact number but this was in
14       response to questions that were put to me at the time of
15       offering this statement and it was just a bottom figure.
16       So I genuinely have no way of knowing how many there
17       were but certainly less than 16.
18   Q.  I am grateful to you, Mr Dunbar.  So it was certainly
19       less than 16 and it may have been 10 or more but you
20       just don't know.
21   A.  I don't know, yes.
22   Q.  At that stage if I ask you, please, to look at page 24
23       of your statement -- paragraph 114, sir, page 24 -- I
24       will give you a chance just to read the whole of
25       paragraph 114.  What I want to, in fact, ask you about
page  64
 1       are the differences that you observed, Mr Dunbar.
 2           Perhaps I should read that in the context.  I
 3       apologise to you, paragraph 113, just immediately above.
 4       If you read 113 and 114.  (Pause)
 5   A.  Yes.
 6   Q.  If I understand it correctly, the identification that
 7       you made the 1997 was one that concentrated on the lower
 8       part of the mark?
 9   A.  Indeed, yes.
10   Q.  So far as the upper part of the mark is concerned, you
11       say in paragraph 114 that there were certain
12       characteristics that you couldn't account for.
13   A.  When I analysed the mark, bearing in mind I think
14       Mr Mackenzie had already described that we were both
15       aware that a result had gone out in connection with this
16       comparison.
17           I was asked as the Quality Assurance Officer to do
18       an analysis of this mark and to ensure that, in fact,
19       that was the correct information that had gone out of
20       the office.  So it wasn't -- trying to negate of that
21       confirmation bias that comes with knowing a result, I
22       did analyse the mark at full arm's length and one of the
23       areas that's already been described very adequately,
24       across the centre and up round the right-hand side in a
25       small circle I considered to be a fault line and
page  65
 1       definitely a red flag.  So it was with that in mind that
 2       I began the comparison.
 3           On continuing I never expected to associate the
 4       characteristics below the fault line directly with the
 5       one or two characteristics I could see in the centre of
 6       the print, which has now become referred to here as the
 7       Rosetta characteristic in particular.
 8   Q.  Let us deal with the Rosetta just as you mention it.  At
 9       page 24, paragraph 115 you mention in the fourth line,
10       if I highlight it, a "hawk-eye".  What is that?
11   A.  That was something that I referred to it personally.  It
12       wasn't something that I bandied around, it was just
13       something that gave me a memory of what I was actually
14       seeing.  I have heard you yourself, Mr Moynihan,
15       describe it as a crescent moon and, in fact, Mr Berry
16       coined the phrase "Rosetta characteristic".  So it was
17       something I had in mind when the two ridges came along,
18       the upper most one dipped sharply, very sharply, towards
19       the lower ridge and it had something of a kind of bird's
20       eye from the side and just in front of that was either
21       an incipient ridge or the break-off of that ridge that
22       was bending down.  So it was quite an unusual feature to
23       say the least as it was portrayed in that chance
24       impression.
25           I have now seen it displayed to me by various
page  66
 1       participants now and on each occasion you see it, it
 2       does take on a slightly different visual appearance.
 3       The event is still there but, as was described to you,
 4       even a bifurcation can look like a ridge ending
 5       depending on how it's captured.
 6   Q.  What I was, in fact, going to take, by saying it's a
 7       hawk-eye you've in mind the American football team the
 8       Seattle Sea Hawks and their motif?
 9   A.  Yes, along that lines.  I mean, that's very extreme in
10       its comparison but I was asked to explain what I meant
11       as a hawk-eye and that was the closest I could verbally
12       pass on my thoughts.
13   Q.  But my only reason for asking about it and you have
14       confirmed this is the feature that you envisaged in
15       paragraph 115 has rather monotonously now in the Inquiry
16       become the Rosetta characteristic?
17   A.  Correct, yes.
18   Q.  What I wanted to do, looking at 113 and 114, was to put
19       it this way in slightly different terms: are you
20       indicating that in February 1997 when you looked at Y7
21       that you were conscious of certain differences between
22       Y7 on the one hand and Ms McKie's print on the other?
23   A.  Several characteristics, including that one but that one
24       in particular, did not appear in the same geographical
25       area but with the fault line running across the centre
page  67
 1       of the print I was happy that it wouldn't appear in the
 2       geographical area.
 3           There were one or two tell-tale factors.  I have
 4       heard it described already by witnesses that the skin
 5       when you take this curved surface and put it against a
 6       flat it's going to have a difference of appearance and I
 7       accept that.
 8           In this particular print of Y7 the ridges become
 9       very, very close together and including and despite
10       distortion they should still have a curvature to them
11       that they don't have and this includes the area of the
12       Rosetta characteristic.  So for me to find it in a
13       geographical position I would have been extremely
14       surprised.
15           Fingerprint Experts do talk in terms of generalities
16       and we at SCRO try to train our students that you can
17       only talk in generalities because the next one that
18       comes up to contradict your theory has just proven you
19       wrong.  So whilst there are guidelines and factors that
20       you have to take into consideration, you always have to
21       expect the unexpected and this particular mark would
22       fall into that category because the cross-hatching, as
23       you described before, is not as readily available and
24       just because it doesn't jump out at you doesn't mean to
25       say it's not there.
page  68
 1   Q.  If I take this in stages and forgive me for coming back
 2       over your answer in stages, first of all, my reading of
 3       paragraph 115 -- and I will give you an opportunity to
 4       correct this if I have read it incorrectly -- was my
 5       reading of paragraph 115 had suggested that the feature
 6       you refer to as the hawk-eye, that I refer to as the
 7       Rosetta characteristic, is one that you had not, in
 8       fact, observed in February 1997, you did not observe it
 9       until later in January 2006?
10   A.  Yes, I certainly didn't observe it at that particular
11       time.  With the explanation I've given in both my
12       statements to this Inquiry and to previous
13       investigations, it was enough for me to account for this
14       movement above the line.  I never anticipated seeing
15       that characteristic at 12.00 from a core.  For me it
16       just wasn't going to be there and the fact I couldn't
17       identify it was of no relevance.
18   Q.  I am sorry, this is where I am being pedantic about
19       this.  The hawk-eye, the Rosetta characteristic, do you
20       have a recollection of seeing anything when you examined
21       Y7 but -- do you recollect seeing in February 1997?
22   A.  In Y7, yes.
23   Q.  So you saw it and then I will come back to one of the
24       other parts of your answer.  When you say people were
25       trained to speak in generalities, are you meaning by
page  69
 1       that that you would simply have covered the whole top
 2       area of Y7 by the generality: it is to be attributed to
 3       movement and distortion?
 4   A.  Again, that is general in my meaning but I felt there
 5       was sufficient movement and the fact that I didn't see
 6       the ridges as having a curvature, I actually anticipated
 7       the ridges being far round to the right, although I
 8       personally did not identify that particular
 9       characteristic.
10           The forms I compared on the 17th to the 18th I
11       believe did not disclose it.  I would suggest now having
12       seen what I've seen on the big screen it would be in the
13       very extremity and perhaps on one of the impressions,
14       whether it was a rolled or plain, it just appeared and
15       it could be argued it was the edge of what was taken as
16       opposed to a characteristic.
17   Q.  I have highlighted a particular part of paragraph 114.
18       It is the middle two lines.  What I am trying to
19       understand is your reasoning.
20           If there are differences between the latent print
21       and the known individual's fingerprint, unless those
22       differences receive a satisfactory explanation I would
23       understand the existence of even one difference to be
24       inconsistent with the identification of the latent to
25       the known mark.  Is that correct?
page  70
 1   A.  Yes, that's correct, yes.
 2   Q.  We have heard some witnesses who have said that if there
 3       are as many as 16 points -- I appreciate not your
 4       position on Y7 but let us look at this in generality --
 5       if there are as many as 16 points in sequence and
 6       agreement in one section of a mark there must be a
 7       unique identity between the latent and the known and,
 8       therefore, if there are observed differences, even
 9       though those no specific explanation can be advanced for
10       them, if there are observed differences, they must be
11       capable of some unascertained explanation because you
12       cannot have 16 points in sequence and agreement and
13       there not be a unique identity?
14   A.  It's certainly never been known, no.
15   Q.  That would then mean that if officers found as many as
16       16 points, they would put out of account a difference,
17       even if they did not have a specific explanation for
18       that difference?
19   A.  Again, if I could just go into that question just ever
20       so slightly in so much that there is an explanation for
21       that and I believe most of the officers have given it,
22       that they saw this area of movement and whilst he or she
23       wasn't there when that impression was put down so you
24       can't say with 100 per cent certainty that that was one
25       touch, two touch, movement, what part was put on, yes,
page  71
 1       you can have theories about it but none of us were there
 2       when that impression was laid.
 3           So in the lack of an explanation, you have to
 4       recognise these red flags, these obvious things to you,
 5       and that was my explanation, the fact that it had been
 6       severely moved or double touch.  We could argue the bit
 7       about movement and double touch but clearly that
 8       characteristic was not going to be in the same
 9       relationship to the core as it was on Ms McKie's print.
10   Q.  I put to you for comment this suggestion: that what one
11       may take from your answer is the top half was discounted
12       based on a generalised explanation that its features
13       were unreliable due to movement and distortion without
14       you knowing what specific type of movement or specific
15       combination of touches may account for those
16       differences?
17   A.  Well, I certainly couldn't comment on that because I
18       didn't identify this area but I did recognise that it
19       was not going to be in the same geographical
20       relationship.
21           If I could just clarify in day-to-day business in
22       SCRO and indeed bureaux throughout the world, we have
23       fingerprint experts discussing with other fingerprint
24       experts why there are differences, indeed, in
25       fingerprint forms taken under controlled conditions.
page  72
 1       Now, around this time, we introduced the LiveScan
 2       service in Scotland and it's the capture of
 3       electronic -- and submission of electronic fingerprints.
 4       And regularly how I could liken the taking of
 5       thumbprints, fingerprints, palm prints, it's almost like
 6       a controlled scene of crime print where there's a glass
 7       plate and the officer places the person's fingers and
 8       thumbs on the glass plate and captures the whole area.
 9           Now in certain instances whole characteristics
10       disappear or have the appearance of not occurring, is
11       probably a better terminology, and you cannot,
12       literally, cannot see the join.  We have trainees and
13       experts bringing this forward into the forum
14       consistently and it's only when you try to replicate you
15       realise how difficult it is to do that twice.  So to try
16       and discuss what has gone on here is extremely difficult
17       when you have no knowledge how it was placed.  But it's
18       a common thing that characteristics do not appear in one
19       capture, even under controlled conditions.
20   Q.  Mr Dunbar, if I then make it very specific to Y7 and
21       Ms McKie, we have in the Rosetta characteristic -- I
22       will revert to my standard terminology -- one prominent
23       observable difference between Y7 and the corresponding
24       geographical position in Ms McKie's fingerprint?
25   A.  I would suggest that the characteristic does not appear
page  73
 1       in that geographical position.  That's correct.  That
 2       part of it is correct, yes.
 3   Q.  So unless there is a specific verifiable explanation for
 4       that difference, the Rosetta characteristic is itself
 5       incompatible with Y7 being Ms McKie's fingerprint?
 6   A.  Again, at the risk of repetition, only in that area.  I
 7       would like to point out that I have mentioned it and
 8       every time I've been interviewed, I've given evidence in
 9       one or two inquiries now, and on each occasion it's been
10       recognised there was movement, irrespective of how many
11       touches, that it has to be recognised there's movement
12       and there are one or two tell-tale signs at the top of
13       this print that it isn't across the top, that it's
14       either a line somewhere else -- in fact, at the time I
15       compared it, I couldn't even guarantee it was the same
16       person.  I'm not suggesting that there are two different
17       thumbs there but I didn't know.
18   Q.  This is why I am asking you about whether the
19       explanation is one that has to be verifiable.  You are
20       going to give evidence, as I understand it, assuming the
21       16-point standard is satisfied, perhaps not you, a
22       Fingerprint Officer is going to testify to 100 per cent
23       certainty?
24   A.  Yes.
25   Q.  No doubt?
page  74
 1   A.  No, doubt.
 2   Q.  Yet you appear to be saying that you did not have in
 3       February 1997 a verifiable specific explanation of why
 4       the Rosetta characteristic is not to be found in the
 5       corresponding position in Ms McKie's fingerprint?
 6   A.  In my analysis and comparison and evaluation it was
 7       verifiable.  I can see that.  It is not connected to the
 8       top part.  One of your previous witnesses, Mr Wertheim,
 9       said it would indeed be dishonest to interpret something
10       that is not there but I would suggest it's actually
11       unprofessional not to interpret something that clearly
12       is there.
13   Q.  If I leave that then and we will perhaps come back to it
14       in a slightly different context later.
15           So far as the second examination -- I am skipping
16       the blind test.  I will come back to that in a second --
17       that you yourself carried out on the 18th, if I go to
18       page 29 and I do not think we need to keep the highlight
19       on the text, if you go to page 29, paragraph 139, it is
20       the last few sentences that I am interested in.  I have
21       just highlighted roughly the area.
22           If I understand it correctly, you saw different
23       material on the 18th but, as I have indicated, you do
24       not in fact recollect the new material really advanced
25       matters one way or the other for you?
page  75
 1   A.  No, it didn't.  I just went through the same process
 2       again and repeated what I carried out on the 17th.  I
 3       believe it was a retaken form from Ms Cardwell/McKie and
 4       a re-photograph of Y7.  So it was completely new
 5       material in so much it had been redone.
 6           I examined it again to see if I could provide a more
 7       positive explanation for this area or red flag of
 8       concern but I was unable to do so from the material I
 9       had.
10   Q.  If I then retreat back to the blind test that was
11       carried out on the night of 17th February, you deal with
12       this in paragraphs 124 to 127, pages 26 and 27.
13   A.  Yes, maybe I could just clarify something in 123 --
14   Q.  We will bring it up.  Pages 26 and 27.  In fact, you
15       begin at paragraph 123.  I do not want to take up an
16       undue amount of time on this particular matter.  You
17       have, in fact, been present in the hall waiting to give
18       evidence for the entirety of last week?
19   A.  Yes, that's correct.
20   Q.  So you have heard Mr Mackenzie's evidence?
21   A.  Yes, indeed.
22   Q.  If I understand it correctly, there is a difference
23       between you and Mr Mackenzie in relation to the
24       background to the blind test?
25   A.  It would appear so.
page  76
 1   Q.  Mr Mackenzie's recollection, as you hear, is that he
 2       took the opportunity to carry out some form of testing
 3       of the personnel who happened to be in the office that
 4       night; whereas you recollect it as a specific
 5       instruction from senior officers that you, in fact,
 6       yourself argued against but you were nonetheless
 7       instructed and the impression you got was that senior
 8       officers were hoping, in a sense, to dig themselves out
 9       of a hole by finding someone who would disagree with the
10       attribution of Y7 to Ms McKie?
11   A.  Can I just deal with that in two or three phases.  First
12       of all, I'm not sure the phrase digging anyone out of a
13       hole comes into it and I certainly haven't used it in my
14       statement.  I would just like to point out, first of
15       all, that in 123 I'm not suggesting with this paragraph
16       that Mr Ferry or anyone else was actually there.  I know
17       Mr O'Neill was there because I had conversations with
18       him on the 17th but I'm actually not -- I believe
19       Mr Mackenzie took it that he felt that Mr Ferry was
20       actually present within the Department.  I'm not
21       actually trying to claim that.  I'm just saying I
22       believe that instruction came from there.
23           Mr Mackenzie has never made any doubts about that's
24       how he viewed it.  He's very, very positive in his
25       belief.  He always has been and I've been present when
page  77
 1       I've heard him say it before, and he's extremely focused
 2       on that.  He always has been and it's to be commended.
 3       But I was present when that decision was made or, sorry,
 4       that instruction came to me and, no, I didn't agree with
 5       it.  I saw no -- well, I saw no relevance to this
 6       particular case.
 7           There were four Fingerprint Officers who had signed
 8       the back of this photograph.  At that time I didn't know
 9       anything about Mr Geddes being another signature.  There
10       were four Fingerprint Experts who had agreed to the
11       identity of this mark.
12           The number of characteristics identified wasn't in
13       the equation at this particular time.  I was never asked
14       about number of characteristics; I was never given
15       instructions about number of characteristics.
16           The information that left the Department on the
17       17th -- well, sorry, prior to the 17th, I believe, was
18       that this mark had been made by this individual and it
19       was an elimination.  That's where we took it from.  The
20       instruction to carry out what has become -- and I've
21       used quotes here -- the "blind trial", is a very much,
22       how shall I put it ...?  It's only loosely describing
23       what we did.  I've never been involved in an exercise
24       like this prior in my career and I've never been
25       involved since.
page  78
 1           We had six experts after Mr Mackenzie and I both
 2       independently agreed as to the identity of the mark, so
 3       you had six people confirming this identification and
 4       then we were asked to go and put it in front of others.
 5       I still fail to grasp the true meaning behind it.  So it
 6       left me only to believe that it was only because this
 7       individual was a police officer.
 8           I certainly did make comment that I wasn't happy
 9       about it for the reasons I've just given but it became
10       very clear that we were going to go ahead with it come
11       hell or high water.
12           A blind test to me is very -- or should be -- very,
13       very similar to a competency test.  A blind test should
14       be that you get a package of marks, maybe, one, two,
15       three, four forms for a comparison.  You are given all
16       the data about the mark, whether it was a lift from a
17       point of entry, a photograph of a mark on a door,
18       whatever, and you will be allowed to make your analysis
19       and comparison the same way as you always would be.  So
20       for it to become a blind test by using the method that
21       we used I don't know where that came from, I really
22       don't.
23           It was an exercise and to try to keep the anonymity
24       of what the decision was, what it was about and who was
25       involved, it was decided that we would use a comparator
page  79
 1       with the mark clamped down on one side, you've already
 2       had a comparator in the inquiry room and you saw the
 3       form clamped down on the other.
 4           Now, the individuals may or may not have been able
 5       to see that it was an elim form but they wouldn't know
 6       who it belonged to.  There was certainly no discussion
 7       that I'm aware of from anyone that took part in this
 8       that they knew what it was about.  So we tried to be as
 9       anonymous as we possibly could and the question that
10       they were given was, "Can you eliminate this mark", was
11       for the simple fact that is the information that had
12       gone out of the Bureau.  This mark has been eliminated
13       Y7 as Shirley McKie or Shirley Cardwell, sorry.
14           So that's the background to it.  Yes, I did voice
15       my -- it still concerns me because I'm now here 12 and a
16       half years later talking something that is really a bit
17       of an irrelevance.  Much has been made of this.
18   Q.  The impression was or I thought your own interpretation
19       of this was that the senior officers were rather hoping
20       that somebody would dispute the elimination of this?
21   A.  Well, again, that's what your word, Mr Moynihan,
22       regarding hoping.  But what I was suggesting in my
23       statement in response to questions that were placed to
24       me that that was one of the only things that I could
25       think of that would prompt this exercise and whilst I
page  80
 1       accept the positive attitude that Mr Mackenzie took,
 2       which he is to be commended for, I'm afraid I didn't
 3       share that.  I just saw no value in it whatsoever.  So
 4       that had to be one of the explanations that if police
 5       officers gave this instruction, then there had to be
 6       a -- again, to coin your phrase -- a hope that that was
 7       the case, that someone disagreed.
 8   Q.  When the officers came back and reported to you, did you
 9       simply take from them that they had been satisfied that
10       they would eliminate this as Ms McKie's print?
11   A.  Absolutely.  That was the question that, again, to
12       repeat myself, that was the question that was put to
13       them: would you eliminate this mark, yes or no?  That
14       was the reason not to give any more information, so
15       there would be no confirmation bias.  It's: would you
16       eliminate yes or no.
17           These officers, each one of them, returned to me and
18       gave that confirmation and only then were their initials
19       recorded by me.
20   Q.  Did you discuss with them at that stage how many points
21       they could see?
22   A.  No.
23   Q.  I will come back and tell you what the individuals have
24       said to us in a slightly different context.
25           You have mentioned Mr Geddes.  Mr Geddes, in fact,
page  81
 1       in his Inquiry statement has a recollection of a
 2       telephone call with you or telling you -- perhaps I
 3       should bring it up so I actually have his own words,
 4       FI0031, pages 26 and 27.
 5           It is paragraph 108, if I give you a chance just to
 6       read that.  (Pause)
 7   A.  Yes.
 8   Q.  I cannot give you a date for this.  Mr Geddes is
 9       recollecting obviously some form of conversation with
10       you but he told you he had eliminated the print but
11       could not get 16 points.
12           Do you share that same recollection or --
13   A.  Yes, and if I could just clarify on it, when I
14       discovered that Mr Geddes had actually been party to the
15       elimination I phoned to clarify what his position.
16       Mr Geddes wasn't involved in the so-called blind trial.
17       It was at a later time that I'd actually discovered
18       this.  So then I had to find out what he said and he was
19       happy to confirm to me that he had eliminated the mark
20       but he hadn't found 16 but that wasn't the question I
21       had asked.  I just wanted to know what his position was.
22       So he was phoned at the house, as was indeed
23       Mr Macpherson.  When the blind trial was carried out in
24       response to that, went back at a later date, I phoned
25       Mr Macpherson, as a professional courtesy, to let him
page  82
 1       know what had been going on.  So it was part of review.
 2       Mr Geddes was not involved in the blind trial.
 3   Q.  So far as the conversation that you had with
 4       Mr Geddes -- and there is no suggestion by me he was
 5       involved in the blind trial -- was that a conversation
 6       that had taken place before either of the two
 7       prosecutions (either the prosecution of Mr Asbury or the
 8       prosecution of Ms McKie) or did it come later?
 9   A.  Yes.  After the so-called blind trials and perhaps a day
10       or say later, whether it was 18th, 19th, 20th I really
11       don't know but it was certainly after this exercise took
12       place on the evening of Monday the 17th but prior to the
13       two trials to be more specific to your question.
14   Q.  If I can move then into the way that I am rolling up
15       that earlier conversation about
16       elimination/identification with the blind test, within
17       your own witness statement, which is FI0053, if I take
18       you to paragraph 171 on page 36, you tell us that your
19       involvement with Y7 was, in effect, after you read an
20       article in the Daily Record relating to Mr Wertheim's
21       evidence at the perjury trial.  You say the staff were
22       surprised at the article and you were not aware of the
23       contradictory expert view in advance.  Then you say
24       this:
25           "I would have expected to be informed of this as the
page  83
 1       Quality Assurance Officer or at least made aware of any
 2       issues about dubiety by the prosecutor."
 3   A.  Yes.
 4   Q.  This is what I want to concentrate on: you are assuming
 5       that when Mr Wertheim's contradiction became known to
 6       the prosecutor that the prosecutor would have informed
 7       you as the Quality Assurance Officer in SCRO?
 8   A.  No, maybe that's a bridge that I haven't made very, very
 9       clear there.  I would certainly have anticipated if
10       there had been any issues that it would have been
11       brought forward to me, either from the Fiscals'
12       Department or indeed our experts but it says there: "my
13       next involvement".  It's an involvement in so much that
14       it's loose.  I saw an article in the Daily Record and
15       naturally I made, not an investigation but a request to
16       speak to the experts about what's going on, can I assist
17       you with anything, but there were no issues.  That's my
18       understanding of it.  There was no pre-advanced that was
19       brought to me.  The actual trial had started and it had
20       appeared in the newspapers.
21   Q.  If I understand it correctly, the point you have just
22       been making is that at the time of the blind test you
23       had asked your colleagues to study this as an
24       elimination, the blind test.  Those who participated
25       studied it --
page  84
 1   A.  That evening, yes.
 2   Q.  So, therefore, when one comes to the perjury trial, it
 3       is no longer merely an elimination.  The question is
 4       whether Ms Cardwell's print can be identified uniquely
 5       to Y7 to a standard that the prosecution authorities are
 6       prepared to proceed with?
 7   A.  Sorry, I didn't realise that was a question.  I beg your
 8       pardon.
 9   Q.  Yes, it is a statement but would you accept that?
10   A.  Yes, with a couple of clarifications.
11   Q.  What are the clarifications?
12   A.  Well, for reasons I've already discussed, that that was
13       not the consideration when we were asked to verify
14       whether the right information had went out or not.
15       These individuals did not take part in any blind trial.
16       So what numerical figure they came to I have no
17       knowledge of whatsoever.
18   Q.  What, in fact, I am coming to is that this is an example
19       I had given you earlier on, Mr Asbury as an example of
20       an individual who was today's innocent bystander,
21       tomorrow's suspect and the distinction between an
22       elimination and identification.
23           Exactly the same is true of Ms McKie.  She was in
24       February 1997 seen as simply a police officer who might
25       have had access to the house whose print had to be
page  85
 1       excluded.  By May 1999 when she is prosecuted for
 2       perjury she became the suspect.
 3           Do you accept that scenario?
 4   A.  In retrospect certainly, yes.
 5   Q.  What, in fact, I am going to come to is whether the SCRO
 6       itself faced up to that distinction in status as bearing
 7       on the identification of Y7?
 8   A.  I don't think there's a question to answer there for the
 9       simple fact, as I've already described this morning, an
10       officer has to be satisfied with an identification.  You
11       can call it an elim; you can call it what you like, but
12       you are saying that that mark belongs to this
13       individual.  So in the case of Mr Asbury or if that is
14       the case with Ms McKie, you can't wind that back in
15       because it didn't reach some magic number.  That
16       information's out there.  So the expert knows that he or
17       she may have to go to court and present that evidence.
18       So it really wasn't about 8 or 16.  It was about the
19       information was out there and it's up to these officers
20       how they presented it.  I had no dealings with that.
21   Q.  I will put this to you: first of all, do you accept that
22       the prosecutors had here an expectation that the four
23       SCRO officers (Mr Macpherson, Mr Stewart, Ms McBride and
24       Mr McKenna) had found 16 points in sequence and
25       agreement?
page  86
 1   A.  If that's what their findings were, again, then they
 2       believed that that was the case, yes, absolutely.
 3   Q.  Let us just be very clear about this.  So far as their
 4       report is concerned ... if we could bring up, please,
 5       SG0396.  This is production 190 and is a joint report.
 6           If we move to the next page, please, and the next.
 7       Let us move on then to the fourth.
 8           Here is a joint report signed by four officers
 9       (Mr Macpherson, Mr Stewart, Ms McBride and Mr McKenna),
10       relating to an examination of photographs and
11       fingerprint forms and we will see that they say:
12           "It was found that the aforementioned photograph
13       impressions were both identical in the sequence of ridge
14       characteristics with the left thumbprint on the finger
15       and palm-print from the form in the name of Shirley Jane
16       McKie/Cardwell."
17           So the officers are certifying the identity.
18   A.  Yes.
19   Q.  If I then turn to the next page, page 5, we will see
20       this is the 29th January 1999 report.  What the
21       Fingerprint Officers are saying is they produced an
22       illustration, the first paragraph?
23   A.  Yes.
24   Q.  And the second paragraph, 16 ridge characteristics in
25       sequence and agreement were marked on each and then
page  87
 1       there's a reference to the book.
 2   A.  Yes.
 3   Q.  So the prosecutors would have had an understanding from
 4       this report that four SCRO officers had found 16 points?
 5   A.  Yes, that's what they're stating, yes.
 6   Q.  And, indeed, the same 16 points?
 7   A.  Yes, because that enlargement is prepared and isn't
 8       signed for unless the others agree.
 9   Q.  So taking it at this stage there has been no
10       communication it would seem thus far to the prosecutor
11       that consideration might have to be given to the dire
12       and crucial exception?
13   A.  Not under these officers' findings, no.
14   Q.  Do you now know that, in fact, if one had stepped back
15       and asked the individuals in SCRO, other than these
16       four, that individuals within SCRO would have said,
17       "Though we agree with the identification of the mark Y7
18       as that of Ms McKie, we do not agree that 16 points in
19       sequence and agreement can be found"?
20   A.  I'm sorry, I can't answer that question.  That's not
21       what happened so I really can't answer that question.
22   Q.  Exactly, it did not happen because no-one asked.  No-one
23       told the prosecutor.
24   A.  No.  It's not a case of they didn't tell the prosecutor.
25       There was no-one in SCRO who said that this print wasn't
page  88
 1       that individual so it really doesn't matter about number
 2       of characteristics or what standards we have.
 3   Q.  I think you may have misunderstood me.  The individuals
 4       would have said, "Yes, we agree this is Ms McKie's
 5       fingerprint, we agree that, but we disagree that
 6       16 points can be found"?
 7   A.  That's possible.  In fact, as I later found out,
 8       Mr Geddes found that to be the case.
 9   Q.  You have told me that you had found out that Mr Geddes
10       had found that and had told you that was the case before
11       the prosecution of Ms McKie?
12   A.  Yes, that was his finding, yes.
13   Q.  If I understand it correctly, your colleague,
14       Mr Mackenzie, observed 10 or 11 points on 17th February?
15   A.  Yes, that's correct.  I heard that, yes.
16   Q.  12 or 13 on the 18th?
17   A.  Again, I heard that, yes.
18   Q.  So he did not find 16?
19   A.  Again, that's not what we were trying to achieve in our
20       comparisons.
21   Q.  You did not find 16?
22   A.  Again, that's not what I was trying to achieve.  It was
23       to verify the information that had already been sent.
24       To me it was irrelevant.
25   Q.  Mr Dunbar, that was to verify at a stage where Ms McKie
page  89
 1       was being excluded as simply a police officer among a
 2       number of innocent individuals involved.
 3   A.  Sorry, I strongly disagree with that because when you
 4       give out that information you are giving out that
 5       information, call it what you like, it's still an
 6       identification and you have to be satisfied as a
 7       Fingerprint Expert that that information is correct.  So
 8       we can run round the buses with 6, 8, 10, 16 points.
 9       That is totally are relevant.
10           These officers were happy -- sorry, I will coin that
11       back in.  They were satisfied with identity and so were
12       we.  Mr Mackenzie and I were asked to verify that
13       decision that had been sent outwith the department so it
14       was the information, was that correct, yes or no.  That
15       was then asked to the people who took part in the blind
16       trial, "Do you eliminate this person, yes or no",
17       because that was the information that went out.
18   Q.  If I proceed through those who were involved in the
19       blind test, so far as they did give the identity of
20       Ms McKie: Mr Foley found only 10 points.  Are you aware
21       of that?
22   A.  Yes, I heard him say that, yes.
23   Q.  The other individual we have to include, we will just
24       include him just now, he is not part of the blind test.
25       Mr Geddes found only 10?
page  90
 1   A.  I found that out later on, yes.
 2   Q.  Indeed Mr Geddes, when Mr Macpherson demonstrated
 3       16 points, Mr Geddes stuck to his guns and said, "I do
 4       not see those 16.  I see only 10."
 5   A.  Yes, so I've heard, yes.
 6   Q.  Taking those individuals (that is Mr Mackenzie,
 7       yourself, Mr Foley and Mr Geddes), do you see that
 8       difference of view on the number of points as simply
 9       irrelevant to the prosecutor's decision?
10   A.  The four experts, as you have demonstrated to me, have
11       clearly illustrated 16 characteristics in sequence and
12       agreement.  That was their evidence.  It's not
13       Mr Geddes' evidence.
14   Q.  Is it irrelevant, therefore, do you think, to a
15       prosecutor that four equally well-qualified experts
16       would not agree with them that there were the 16 points
17       in sequence and agreement?
18   A.  I would see it being more relevant if they disagreed to
19       the identity, irrespective of number of characteristics.
20       I would certainly agree with that.
21   Q.  For completeness, I have omitted one of the individuals
22       involved in the blind test for a reason.  Mr Bruce is
23       also involved in the blind test.
24   A.  That's correct, yes.
25   Q.  He tells us he found only eight points.
page  91
 1   A.  I heard him, yes.
 2   Q.  If I understand him correctly, because he thinks the
 3       threshold for the elimination is 10 points --
 4   A.  Again, I heard him say that, yes.
 5   Q.  -- he says that he did not eliminate the print as that
 6       of Ms McKie.  The highest he would go is it would be at
 7       the level of suspicion.
 8   A.  Well, that's the first time I'd actually heard this new
 9       classification system.  It was a surprise to me that
10       morning -- I believe it was the last day of the first
11       session -- and it certainly surprised me the content of
12       that particular piece of evidence and, whilst it's not
13       my business to particularly comment on -- I didn't
14       recognise most of it -- Mr Bruce did not discuss the
15       number of characteristics that he saw, he answered the
16       question that he believed that it was eliminated.
17       That's what he told me on 17th February.
18   Q.  So what he told you was it had been eliminated?
19   A.  Correct.
20   Q.  If I can bring this to a head having gone through the
21       number of individuals and put something to you, also an
22       opinion of someone who agrees with the view that Y7 is
23       that of Ms McKie -- so this is not the opinion of
24       someone who is a contradictor of the identification,
25       someone who agrees the identification -- I have in mind
page  92
 1       Mr Graham.  Did you hear Mr Graham's evidence?
 2   A.  I heard most of it, yes.
 3   Q.  If I could bring up for you, please, as a concise
 4       summary CO0003.18.  If I tell you what this is, I am
 5       bringing up a page -- it happens to be the page numbered
 6       17 -- from Mr Gilchrist's report.  Mr Gilchrist was then
 7       the Procurator Fiscal who investigated the possibility
 8       of a charge against the four signatories to the court
 9       report.
10   A.  Yes, I have met him.
11   Q.  I am bringing up one particular page.  What I want you
12       to look at is the middle paragraph that is on the screen
13       just now that begins "Malcolm Graham ..."
14           If I understand Mr Graham, he gave evidence on
15       9th July and dealt with this matter between pages 75 and
16       81 of the transcript.  If I understand what he is
17       saying, it is simply this: there was a distinction
18       between the standard by which a Fingerprint Examiner
19       could make an identification on the one hand and what
20       would ordinarily be taken to court on the other.  Thus
21       far, do you accept what Mr Graham says?
22   A.  What he's saying, yes, that's right.
23   Q.  The ordinary rule would be that to take the matter to
24       court, there would require to be 16 points in sequence
25       and agreement?
page  93
 1   A.  Yes, as I've described this morning.
 2   Q.  And you accept that?
 3   A.  In the volume crime-style scenario and the day-to-day
 4       running in court business, yes, I would accept.
 5   Q.  But even in a murder case you have told me you know no
 6       instance of which the prosecutors in Scotland in fact
 7       went to court with a fingerprint on less than 16 points?
 8   A.  Well, I don't know personally; that's correct, yes.
 9   Q.  Even in a murder case you would understand that the
10       prosecutors adhered to the practice of looking for
11       16 points?
12   A.  I would suggest maybe that's all there's been.  There's
13       maybe just identifications gone to them with 16 or more
14       in the serious crimes.
15   Q.  What the thrust of this comes, Mr Graham found only
16       7 points.  So he is at the lowest end of the spectrum.
17       He found only 7.  He was happy to agree the
18       identification but, conscious of the distinction between
19       the working practices of Fingerprint Officers and the
20       approach of taking evidence to court, he says it was a
21       mistake to have taken this to court because, on what he
22       found, he could not speak to the 16 points.  Do you see
23       that?
24   A.  I read that, yes.
25   Q.  What is your answer to that?  What is your comment?
page  94
 1   A.  Well, again, this is Mr Graham's opinion.  We've heard
 2       many opinions in this Inquiry.  The fact of the matter
 3       is that these four officers took evidence to court based
 4       on the 16 points of sequence and agreement.  Now, there
 5       may have been more.  You would need to ask these
 6       officers.
 7   Q.  The context for this is that by the time May 1999, when
 8       the officers are taking it to court, first of all, the
 9       prosecutors had an expectation that 16 points in
10       sequence and agreement could be found with not only
11       confidence but with 100 per cent certainty.  That is the
12       expectation the prosecutors have?
13   A.  Well, that's what the statement actually discloses.
14   Q.  Yet equally well-qualified and indeed, in the case of
15       yourself and Mr Mackenzie, senior to the four officers,
16       senior officers could not agree that 16 points were
17       found.
18   A.  Again -- and forgive me if I'm repeating myself here --
19       that is not what I set out to achieve.  I was asked on
20       behalf of SCRO to examine this mark to see if the
21       information we gave out was correct and that's what I
22       did.
23   Q.  What I would suggest to you is this, that at the point
24       when Mr Wertheim came on the scene, he is now disputing
25       the matter, the prosecutors might expect to be told,
page  95
 1       "Hold on a minute, there's a problem here because even
 2       in Scotland equally eminent Fingerprint Officers will
 3       say they can't see 16 points."
 4   A.  Sorry, I would accept that if you're telling me that it
 5       was not an identification.
 6   Q.  Do you not see that it is a slippery slope that even
 7       Fingerprint Officers who agree an identification, if it
 8       actually came to it in court, could dispute as many as 8
 9       of the 16 points?
10   A.  I think -- forgive me if I'm wrong but that is
11       Mr Graham's.  Mr Graham didn't work for SCRO.
12   Q.  No, it is Mr Bruce saw only 8?
13   A.  Again, that's not what he said to me.  So whatever
14       Mr Bruce said to you that day, I can't account for that.
15       Only Mr Bruce can account for that statement.  If
16       Mr Bruce had shown any concern that night, I would have
17       reported that on.
18   Q.  Let us go then to the two individuals over whom you have
19       no difficulty, I suggest, and that is Mr Foley and
20       Mr Geddes, both of whom saw only 10 points?
21   A.  Yes.  Mr Foley again was part of the so-called blind
22       trial and was asked, "Would you eliminate: yes or no?"
23   Q.  And saw only 10 he tells us?
24   A.  That's what he told us, yes.
25   Q.  Mr Geddes you know says only 10?
page  96
 1   A.  In retrospect, yes, I do know.
 2   Q.  In fact, Mr Geddes goes further and he says he had a
 3       practical demonstration by Mr Macpherson of the
 4       16 points relied on by Mr Macpherson and he couldn't see
 5       in excess of 10.  So he would not have been persuaded
 6       himself by the extra points that Mr Macpherson was
 7       relying upon?
 8   A.  Again, I was present when Mr Geddes gave evidence and I
 9       don't think that was the case.  I think Mr Geddes would
10       have given evidence if he had allowed to and there is a
11       distinct difference between not agreeing and making an
12       identification, which he did.
13   Q.  There is a spectrum building up though.  The point that
14       was point to Mr Geddes by Mr Smith was simply this: by
15       the time in May 1999 there was a dispute between the
16       four SCRO officers on the one hand and Mr Wertheim and
17       Mr Grieve, the other American expert, on the other.  It
18       has been put to a jury the prosecution is relying on
19       16 points.  The prosecutor has an expectation that the
20       jury will be persuaded that there are 16 points and here
21       equally eminent SCRO officer, Mr Geddes, says, "I'm an
22       expert, I don't see at least six of the points that Mr
23       Macpherson is relying on."
24   A.  Again, I understand what you are saying but it never
25       registered with me that angle of it for the simple fact
page  97
 1       is these four experts prepared a statement to 16 points
 2       in sequence and agreement and again they had further
 3       control prints to compare and that was their findings.
 4       Because one person sees only 14 and another person sees
 5       16, it doesn't mean to say that there are not 16 there.
 6           Mr Wertheim talked about tolerance and that may,
 7       with that particular control print and that particular
 8       mark, have been well outside Mr Geddes' tolerance at
 9       that moment in time.
10   Q.  Did you hear the evidence of the Procurators Fiscal, Mrs
11       Greaves and Ms Climie?
12   A.  No, I'm sorry, I didn't.  I believe I heard the
13       beginning of Mrs Greaves but, apart from that, no, I'm
14       sorry.
15   Q.  I do not think we can bring up the transcript for you to
16       see.  I do not think we have the transcript on Trial
17       Director.  What I will do is let you know what the
18       prosecutors said.  They both happened to give evidence
19       about this matter on day 16.  That is 1st July.
20       Mrs Greaves did so ultimately at pages 108 to 109.  She
21       precognosced both Mr Macpherson and Mr Stewart and she
22       was not told of what Mr Geddes had said.  So she was
23       being asked about this.  She was asked:
24           "Q.  Was there any indication given to you that
25       would give rise to the need to precognosce Mr Geddes?
page  98
 1           "A.  Not at that particular time.  Obviously I
 2       didn't.  I don't think I did precognosce him.
 3           "Q.  You don't think you did?
 4           "A.  No.
 5           "Q.  You plainly understood the Fingerprint Officers
 6       to be working to a standard of 16 points in sequence and
 7       agreement as is shown in the image.
 8           "A.  Yes.
 9           "Q.  Did they tell you that any of the other
10       Scottish Criminal Record Office staff had been unable to
11       agree the presence of the 16 points?
12           "A.    No.
13           "Q.   So they didn't tell you Mr Geddes saw only 10?
14           "A.    No.
15           "Q.  Mr Dunbar saw perhaps more than 10 but less
16       than 16?
17           "A.  No.
18           "Q.  That Mr Bruce saw 8?
19           "A.   No.
20           "Q.  And Mr Foley saw ten?
21           "A.  No.
22           "Q.  If that information had been given to you --
23       and let me make it quite clear that would have been
24       explained to you -- sorry, what could have been
25       explained to you is all of the officers I have mentioned
page  99
 1       are in agreement that Y7 was Shirley McKie's fingerprint
 2       but no one of those officers, at least at the point when
 3       they are making the identification, were able to satisfy
 4       the 16-point standard, they were able to see a lower
 5       number between 8 and 13, would you have been interested
 6       in knowing that?
 7           "A.    Yes, I would.
 8           "Q.  What would you have done had you been told
 9       that?
10           "A.    I would have mentioned it in the precognition
11       obviously.  So obviously it would be a matter for Crown
12       Counsel to consider the veracity of the fingerprint
13       evidence and it might have had a different emphasis or
14       laid a different emphasis on the obtaining of an
15       additional independent report."
16           So that Procurator Fiscal is saying that had she
17       been told the full information, it may have made a
18       difference and it may have resulted in the Crown
19       commissioning an independent report.  Do you understand?
20   A.  I understand what you're saying, yes.
21   Q.  Do you still see from your perspective that it is
22       irrelevant that a number of officers in SCRO could not
23       see the 16 points?
24   A.  In retrospect, I'm not saying it's irrelevant but what I
25       am trying to suggest is that it had no bearing on the
page 100
 1       fact that these four officers prepared a court
 2       production based to a 16-point illustration.
 3   THE CHAIRMAN:  I can see your point that the others who
 4       could not find the 16 have identified it and the four
 5       who are going to court can produce the 16 points, but
 6       the problem might be that it means that there are
 7       officers relying on points that others in your
 8       department could not see.
 9   A.  When you mention like that, Sir Anthony, that is very
10       well looking in retrospect and having all the
11       information in front of you.  We didn't at that
12       particular time.  I didn't when the trial went ahead.  I
13       had no knowledge that there was any issue whatsoever
14       with the evidence.
15   THE CHAIRMAN:  Of course, I have the benefit of looking at
16       it in retrospective.  You are quite right.  I am just
17       looking at the logic of it.  It does mean that the four
18       officers who could see the 16 points are relying on some
19       points that others, equally expert, cannot see.
20   A.  Well, again, they had the benefit of having perhaps more
21       material with regards the charge form and even to this
22       day I'm not even sure what forms it was they used in the
23       trials, but I do know that that was a conclusion that
24       they reached.  I've tried to be as open as I can in the
25       statement that I've given that my contact with the case
page 101
 1       was in 1997 and, again, I only heard about it, there
 2       were no issues brought to me.  Discussions were, I
 3       believe, if they took place, took place between the
 4       witnesses and the Fiscal.  So whatever they discussed,
 5       I'm sorry, I don't know.  I've no knowledge of that.
 6   THE CHAIRMAN:  You were not aware of that?
 7   A.  No, I wasn't.
 8   THE CHAIRMAN:  Is this a convenient moment?
 9   MR MOYNIHAN:  Yes, it is.
10   THE CHAIRMAN:  We will sit again at 1.55.
11   (1.05 pm)
12                      (Luncheon Adjournment)
13   (Afternoon session)
14   (1.55 pm)
15                  ALAN SCOTT DUNBAR (continued)
16                 Further examined by MR MOYNIHAN
17   MR MOYNIHAN:  Mr Dunbar, I have one other main topic to ask
18       you about, which is the topic of peer pressure and
19       then --
20   A.  May I just make a statement prior to moving on regarding
21       the blind trial, Sir Anthony?
22   THE CHAIRMAN:  Yes, certainly.
23   A.  I would just like to clarify, as I mention in my
24       statement, that indeed there were other officers that
25       took part in this blind trial.  So it wasn't just about
page 102
 1       the names that were mentioned.  There were at least
 2       three or four other individuals who I have no
 3       recollection who they were.
 4           The staff wrote a list that evening.  It was passed
 5       on to various inquiry teams after it and I believe they
 6       made attempts to try and find out who they were but
 7       again in these three or four samples there was no-one
 8       who disagreed and, indeed, Mr Halliday is to be added on
 9       top of that, a sergeant who served in SCRO, and he
10       examined the material on the 18th, the next morning, and
11       he found the same conclusion.
12           So it wasn't about there's one or two that maybe
13       agree; there's one or two that don't.  There were only
14       two who didn't come to the conclusion for other reasons;
15       not that they didn't agree, it's just that they would
16       have preferred to see it off the comparator in the
17       morning.
18   THE CHAIRMAN:  Yes, I think one was tired or felt they had
19       been working all day, and tired eyes were not the way to
20       look at it.
21   MR MOYNIHAN:  I am quite happy to acknowledge that.  In
22       fact, Mr Halliday as I understand it found 16 points so
23       wasn't just in agreement.  He found 16 points is the
24       evidence we have from him.
25           I know others would wish me to ask the question in
page 103
 1       relation to the others who were involved in the blind
 2       test beyond those that I have named, do I take it that
 3       you have now no recollection of the names of the others
 4       who were involved?
 5   A.  No.  As you appreciate, it was a matter of perhaps three
 6       years -- in fact, two and a half years prior to even
 7       looking at this question again and it was when
 8       Mr Mackay's team were asked to investigate the
 9       surroundings and I was interviewed regarding this
10       subject and it was then I produced the staff list.  So I
11       could only tell you who was on that evening when I
12       examined the staff list and I believe I gave an account
13       of that to them, but I had no recollection of who it
14       was.
15   Q.  The two that I have to ask you -- the main topic I next
16       have to cover is the topic of peer pressure and I then
17       want to ask you some points of detail in relation to
18       enlargements and reports and then something in relation
19       to Mr Ashbaugh.  Those are the topics I will cover with
20       you.
21           The main one is the question of peer pressure.  So
22       far as peer pressure is concerned, you yourself cover
23       this in your witness statement and you say you were not
24       aware of peer pressure.  If I take you within your own
25       witness statement, please, to paragraph 157, FI0053.  I
page 104
 1       am afraid I have not written down the page.  It will be
 2       after page 24 in any event.  Can we scroll through.
 3           We have found it and it si the original typed
 4       page 33 and it is page 33 on the computer.  At 157 you
 5       say you:
 6           "... have never heard of any pressure to confirm an
 7       identification or elimination made by a Fingerprint
 8       Officer's substitute witness.  The individual officer
 9       signs for him or herself and nobody else."
10   A.  That's correct.
11   Q.  So that is perhaps the wrong sort of context.  So far as
12       you are aware, do you have any recollection at this time
13       of what might be called peer pressure; in other words,
14       not overt but a subconscious pressure on particular more
15       junior officers to confirm identifications made by more
16       senior colleagues?
17   A.  I have certainly not heard of that, no.
18   Q.  Are you aware of such a thing occurring?
19   A.  Not to the best of my knowledge, no.
20   Q.  We have had evidence from some witnesses that I perhaps
21       suggest for consideration by you in this context.  One
22       particular witness, if I can just find my notes, is
23       Mr Padden.  This would be on day 12 at about page 81
24       when he was talking about being asked about peer
25       pressure.  He said that when he was a junior officer, he
page 105
 1       perhaps had less confidence in his own opinion.  In
 2       particular, if he was finding 14 or 15 points in
 3       sequence and agreement, he would be mindful that if he
 4       didn't confirm it, the identification might not go out
 5       as an identification and he was conscious, he said, of
 6       rolled eyes and exasperated noise if he stopped
 7       something going out.
 8           Would you me to read over for you exactly what he
 9       said?
10   A.  If you wish, yes.
11   Q.  It is day 12, page 81.  It starts at page 80, line 16
12       and my question was this:
13           "If I move to the final point that you're discussing
14       and move to paragraph 12, in paragraph 12 you are
15       discussing the possibility of pressure being applied.
16       If I understand what you're writing in paragraph 12,
17       please take time just to read it and be clear, what you
18       are saying is there would certainly never be any overt
19       pressure by one officer on another.
20           "A.    No.
21           "However, do you describe a situation in which
22       perhaps, if not pressure, then some subconscious
23       influence might be brought to bear?"
24           So you understand the question being put?
25   A.  Yes.
page 106
 1   Q.  What he has noted as having said is:
 2           "What I'm actually talking about is perhaps it's
 3       just your level, your own levels of confidence when
 4       you're newly qualified that you may be asked to check a
 5       case and because of your lack of knowledge and
 6       experience you may not be able to reach that point with
 7       the standpoint standard.  You had to get 16 points.  It
 8       may very well be that you get 14/15 characteristics and
 9       you're absolutely happy that that belonged to the
10       individual concerned.  However, you can't get 16.  In
11       that situation, that identification if it was the only
12       mark in the case would not have left the office.  That
13       potentially is a crime that would go undetected so you
14       would then maybe take that to the first checker who's
15       absolutely confident that there's more than enough
16       information there.  You say I can only see 15.  Well,
17       that means that you have stopped that identification
18       leaving the office.  So looking back again you will say
19       perhaps you can understand why there might have been an
20       eye rolled or an exasperated noise that somebody had
21       made because you actually stopped an identification
22       going out the office so it certainly wasn't overt
23       pressure in any way it's just perhaps the level of
24       confidence that you had as an individual to maybe make
25       that decision that you know you might be stopping an
page 107
 1       identification leaving the office because you don't at
 2       that point have the knowledge and experience to see it
 3       was 16.  I would say that we don't have the scenario now
 4       because we don't have the 16-point standard."
 5           That is the full answer.  Is there any comment you
 6       would make in relation to that answer?
 7   A.  Several, to be quite honest with you.  Whilst I can't
 8       speak or comment on what Mr Padden found on an
 9       individual basis, I would be extremely disappointed if
10       that were the case every time he put something forward
11       with 14 characteristics in sequence and agreement.
12           You would anticipate that when someone is training
13       they wouldn't necessarily see the 16 points in sequence
14       and agreement that a more experienced or -- sorry, I
15       will rephrase that -- that a longer standing expert
16       would see and it's because of his practice and
17       experience and the skill that he's able to illustrate
18       that and discuss it with the trainee.
19           Now, the 14 Mr Padden refers to, there would be
20       nothing to stop a conversation taking place -- now it's
21       recorded obviously what is said -- but there'd be
22       nothing to stop conversations taking place and an
23       illustration perhaps being marked on a comparator to put
24       that.  And the fact that Mr Padden perceived it an
25       identification wasn't leaving the office is incorrect.
page 108
 1       If something didn't reach what you've described as the
 2       court standard, if it didn't reach 16 in a volume crime
 3       case, intelligence still left the Department as an
 4       identification and recorded the fact that it did not
 5       reach the current numeric standard.  So the information
 6       did leave the Department.
 7           He, Mr Padden, nor any other expert did not stop
 8       that information.  The only reason it was stopped is if
 9       he said that it didn't belong to that person and there
10       is a huge gulf between agreeing on 14 characteristics
11       and not being that individual.
12   Q.  If we leave out though the complication of the dire and
13       crucial role that we have covered, when that
14       intelligence left the office, if it did not mean the
15       16-point standard, that would simply go to the police
16       and would stop there as intelligence for them to follow
17       up?
18   A.  It certainly went to the Criminal Intelligence
19       Department.  What they did with that information they
20       would need to respond to that.
21   Q.  The point I think I was understanding from Mr Padden was
22       the information would not be communicated to the
23       prosecutor as an inimical of evidence, a piece of
24       evidence in a prosecution if the 16-point standard had
25       not been obtained?
page 109
 1   A.  The response in any case, indeed, is not sent straight
 2       to the court.  It always goes via the organisation that
 3       presented or submitted the case for comparison.  So it
 4       would always go out via the person that submitted,
 5       whether it be a police agency or, in fact, a member of
 6       the public, indeed, could make a request.
 7   Q.  But the position would still be the same, Mr Dunbar, if
 8       it did not meet the 16-point standard it would go to the
 9       police and no further.  You would not expect it to be
10       communicated by the police as part of their evidence
11       summary going to the prosecutor?
12   A.  At that particular time, that's correct.
13   Q.  There are two other documents I would like you to look
14       at in the context of peer pressure, the second of which
15       I will come to is Mr Luckcraft's statement but before we
16       come to Mr Luckcraft's statement if I could ask you,
17       please, to have a look at the document DB0554.
18           I must apologise to the members of the public.  I
19       have been advised over lunch that if I simply bring up a
20       full page that can't be seen on the public benches.  It
21       so happens there is, in fact, only one paragraph I want
22       to ask you about in this particular document and we will
23       come to it just in a second.  It is in the middle saying
24       "Not signing full ident".
25           But before we come to that, these are manuscript
page 110
 1       notes of something called the Q Circle?
 2   A.  Quality Circle, yes.
 3   Q.  The Quality Circle.  There are then initials of
 4       individuals, you are yourself not mentioned in that but
 5       your name is mentioned in the paragraph later.  This one
 6       happens to be dated 24th March 1995.
 7           I must make it clear, Mr Dunbar I know nothing of
 8       the provenance of this particular document so I want to
 9       just ask you for your comment on this, please.  If you
10       know nothing of it, then just say.
11           What was the Quality Circle?
12   A.  The Quality Circles were started as a kind of precursor
13       for quality assurance being truly recognised within the
14       Bureau.  Whilst we always practised and adhered to the
15       policies of quality assurance we didn't have a
16       recognised quality assurance position and it's also true
17       to say that we didn't have structured manuals and
18       written procedures the way they evolved into after 1997.
19           These were introduced by Chief Inspector Lawe and
20       carried out by Chief Inspector O'Neill, who was a great
21       advocate of the Quality Circles.  And it gave the
22       opportunity for staff and, as you can see from the list
23       of names, it's a cross-section of staff at that
24       particular time.  One person was from the ten-print
25       section, one was from team 1, team 2, 3, 4, 5 and 6.  So
page 111
 1       what you had was a cross-representation of staff
 2       attending these meetings.  They would be pre-briefed by
 3       their own teams as to any topics that were to be
 4       discussed, if there was any issues that they felt should
 5       be heard.  At the meeting this was then discussed and
 6       hopefully we could come to some sort of way forward with
 7       these particular issues.
 8           Now, I would say 80 to 90 per cent of them were
 9       staff orientated prompts and as you can see from that,
10       "Not signing full ident", concern was shown by the
11       group --
12   Q.  If you give me just a second.  It's only because I have
13       been told that members of the public can't see it unless
14       we highlight it.  I trust that that can now be seen.  It
15       says, "Not signing full ident"?
16   A.  Yes.
17   Q.  There has been a problem for me with the syntax,
18       actually understanding this particular paragraph.
19       Before I ask you to comment on it, could you just
20       actually read it out for me in what you would understand
21       to be its natural way.
22   A.  You wish me to read it out?
23   Q.  No, if I tell you there's a section in it which says:
24           "Over the question of persons' names being taken
25       over", and I just had a little bit of -- I think I now
page 112
 1       understand it but I did struggle with it for a while.
 2       Perhaps it says:
 3           "Concern was shown by the Group over the question of
 4       persons' names being taken over not signing an
 5       identification."
 6           What I understand that to mean -- it's no more than
 7       my interpretation of it -- is that members of the Group
 8       who were expressing concern that names were being taken
 9       (i.e. were being noted) and it says "over not signing",
10       by "over not signing", is meant because they had not
11       signed.  So concern was being expressed that names were
12       being noted because they were not signing an
13       identification.
14           Does my reading of that coincide with your reading
15       of what is being said?
16   A.  No.  I can actually give you the provenance of these
17       notes, if you so desire.  It's not an issue.  I made
18       these notes.
19   Q.  Did you?  It's your handwriting.
20   A.  Yes.  Well, I actually I recognise it in a Sunday
21       newspaper one morning so that's how I knew it was mine.
22       That was the first time I'd seen it for many, many
23       years.
24           These notes were taken as an aide-memoire to the
25       people that attended over what was discussed.  So if
page 113
 1       there's any misconception of what was discussed it's
 2       entirely mine.  With the addendum that these were passed
 3       out to the individuals that attended the meeting, asked
 4       if that reflected what was discussed and then they were
 5       circulated to the department.
 6           This topic was a misconception by members of staff.
 7       This had been a rumour factory that people were going to
 8       be noted any time they didn't, as you suggested,
 9       Mr Padden's 14 characteristics.
10           That wasn't the case.  What was clarified was that
11       supervisors would know if there was an issue regarding
12       training, et cetera, with particular individuals because
13       they received constant feedback both with comparisons,
14       performance, et cetera, and now and again there may have
15       been to be an occasion where you sent someone back to
16       training for whatever reason, not necessarily just about
17       not signing 16 characteristics.  But that was the
18       perception by the Group -- sorry, some members of the
19       Group, that this was what was going to happen if they
20       didn't sign an ident.  That wasn't the case at all.
21       It's a case of when an individual constantly did not
22       sign identifications when they were clearly and
23       conclusively established to 16.
24   Q.  This is, in a sense you may understand, Mr Dunbar, why
25       there's a concern about the circularity of this, that
page 114
 1       the individual is having his note taken because, as you
 2       say, there clearly were 16 observable points.  The
 3       question is who judges that there were clearly 16
 4       observable points?  The answer to which, it would seem
 5       from this memo, is that the supervisor is judging that
 6       there are clearly 16 observable points and anyone who
 7       disagrees on a serial basis is going to find his name
 8       noted?
 9   A.  No, I would take task with that in so much that
10       the supervisor would be the first line of contact for
11       this concern but he or she would have to document and
12       they would have to establish that this was a pattern,
13       not just because they fancied signing something and the
14       individual concerned didn't.
15           So, again, it's a misinterpretation of what was said
16       at the time, bearing in mind these were made in 1995 and
17       clearly had nothing whatsoever to do with this case and,
18       indeed, were not a matter for Freedom of Information.
19           So these notes that were mine escaped from the
20       office and were circulated widely.  Clearly it was an
21       individual that passed this out.
22   Q.  You will now appreciate why I have said I don't know the
23       provenance of this.
24   A.  Absolutely and if you were to throw this into everything
25       that's gone on, blind trials and all the rest of it,
page 115
 1       please, bear in mind this made over two years prior to
 2       it so it can have no connection with it and, again, I
 3       would show concern the fact that it was the Group, it
 4       was individuals perceptions of what would happen if they
 5       didn't sign it.  So maybe the individual concerned had a
 6       confidence crisis themselves.  There wasn't necessarily
 7       a management issue and I think you will see I was trying
 8       to confirm this with the Chief Inspector that only on
 9       these occasions that could be documented that there was
10       a lacking that that is what would be passed on perhaps
11       to the Training Department, not that their name would be
12       recorded in a black book.
13   Q.  But there are two points perhaps: first of all you
14       acknowledge that there was sufficient concern among
15       members of staff about this.
16   A.  Or a member of staff, yes.
17   Q.  Well, do you know whether it was more than one person or
18       just one person who was expressing this concern at the
19       time?
20   A.  I couldn't tell you.  As I say, they are totally
21       unrelated subjects.  I can see how you could make the
22       quantum leap into saying they are part of the same kind
23       of background and atmosphere that was going on, but it's
24       just not the case.
25   Q.  The final part of this is based on what I had asked you
page 116
 1       before lunch about a number of individuals who, although
 2       they were confident and, indeed, certain of identity,
 3       they might be certain of an identity on many fewer than
 4       16 points --
 5   A.  Yes.
 6   Q.  -- and Mr Padden, the bridge, is some form of unease, to
 7       put it at its lowest, that although they were of that
 8       opinion it might not progress to a prosecution because
 9       they themselves could not find 16 points --
10   A.  Well again --
11   Q.  If I -- forgive me -- not attributing this to Mr Padden
12       at all, it is not what Mr Padden said, could you
13       understand that the outside observer might think, well,
14       there is here some subconscious -- not positive
15       pressure -- subconscious pressure being applied to
16       members of staff to have them tease out the 16 points
17       that are required to convert their certainty into
18       admissible evidence?
19   A.  I can understand how you can misconstrue it as that.  I
20       can't comment on Mr Padden seeing rolled eyeballs.  I
21       would be extremely disappointed if that were the case on
22       more than the one occasion that he witnessed it but,
23       again, once a fingerprint expert is qualified, as I
24       think I've said in my statement, it's not about being a
25       junior expert or a senior expert, it's whether you are
page 117
 1       competent enough or not.  It may be that experts of
 2       longer standing have more experience in interpreting and
 3       displaying the features disclosed on a chance
 4       impression.  That will come with time.  So, again, it's
 5       Mr Padden's perception and I really can't comment on
 6       that.
 7   Q.  The final point then is can I ask you why you would at
 8       all be taking a note of an individual if he refused, as
 9       it would seem, perhaps for perfectly proper professional
10       reasons, he refused to sign impressions that others had
11       signed?  Why are you dealing with that, even as a matter
12       of training?
13   A.  You mention that in isolation over one mark.  I'm
14       talking about a repetitive process.  An individual might
15       need spectacles for all I know and all it is is
16       highlighting a pattern.  That's what was indicated here.
17       You can interpret it until you're blue in the face but
18       the simple fact was it was brought up by staff and they
19       were assured and, okay, in retrospect it may not look as
20       if I was giving any assurances there but the problem
21       with being the leader of a Quality Circle is that you
22       are the go-between between the supervisory staff, the
23       staff and the management and bearing in and I wasn't
24       management at this stage and I was asked to chair these
25       things because they felt that I could perhaps do that
page 118
 1       mediation.  No other reason.
 2           So you're trying to encapture people's thoughts,
 3       feelings, facts and then the management responds on one
 4       sheet of paper and, again, I stress it was an
 5       aide-memoire to the events.  They are not minutes.  They
 6       are my perception of what was brought up and how it was
 7       dealt with and no-one ever came back to me and said,
 8       "That's a load of rubbish", or  "That could be
 9       misconstrued as such and such", and again to reiterate
10       it was 1995.
11   Q.  Since it is not my design to turn blue in the face.
12       Maybe I will move on to another topic but maybe it may
13       actually gives rise to some heightened blood pressure
14       anyway.
15           Turning to Mr Luckraft's statement have you had a
16       chance to read that statement?
17   A.  I have, yes.
18   Q.  Mr Luckraft's statement for us is FI0113.
19           I was going to pick up some particular point as we
20       proceeded through but perhaps if I just ask you, since
21       you had a chance to read Mr Luckraft's statement do you
22       have an overarching comment on Mr Luckraft's statement
23       or do we need to go through it?
24   A.  No, you can go through it if you wish.  Clearly there's
25       an agenda here so if you wish to take the points
page 119
 1       point-by-point that's up to you.
 2   Q.  My reason for starting was really to pick up what I
 3       anticipated you might say, which is there is an agenda
 4       here.  So if there's a more general approach -- we will
 5       look at some of the specifics, what do you mean by
 6       there's an agenda here?
 7   A.  I'd just like to clarify that prior to reading this and
 8       even in the description of the events that he describes
 9       I have no issues with Mr Richard Luckraft and indeed I
10       regarded myself as being friendly with him, sincerely.
11       But on a professional basis that's another matter.  When
12       Mr Luckraft was in the department, that was quite clear
13       that there were issues and he himself broaches the
14       subjects but clearly he remembers them completely
15       different in their interpretation from -- and I don't
16       just mean me, I'm talking about the rest of us.  So his
17       perception of his time in SCRO is his perception and
18       that's really all I can say without being too personal.
19   Q.  I don't want you to be --
20   A.  I'll try not to be.
21   Q.  If you are still friendly with him I don't want it to
22       become --
23   A.  I don't have any contact but that was my consideration
24       at the time.  There was no ulterior motive for making
25       these comments.
page 120
 1   Q.  If I begin on page 3, there are a few passages I just
 2       want to pick up.  Page 3, paragraph 6 he says:
 3           "From what I could see, there was a culture in the
 4       SCRO Fingerprint Bureau of holding their peers in very
 5       high esteem, for example, Hugh Macpherson was considered
 6       a brilliant, fantastic fingerprint expert who was not
 7       capable of making a mistake and I observed that the same
 8       inference was applied to Robert Mackenzie.  It was very
 9       much an environment in which the view was taken of the
10       more years' service equalled a higher skill level.  In
11       my experience, this scenario is not always correct."
12           Do you have any particular comment on that?  Plainly
13       you will accept that Mr Macpherson was, indeed, held in
14       high regard.
15   A.  I accept it but, yes, I do have an observation on this
16       paragraph.
17   Q.  I should also say I was not intending to insult
18       Mr Mackenzie by omission but Mr Mackenzie was also held
19       in high regard.
20   A.  Indeed, yes, but I would like to take the personal
21       aspect of it and whilst the intonation of being a
22       culture, et cetera, I take strong challenge with.  It's
23       not unusual.  In fact, its universal in bureaux
24       throughout the UK.  I can't speak for other countries,
25       continents, but I know for a fact, indeed, the two
page 121
 1       bureaux that Mr Luckraft worked prior to SCRO they have
 2       this same notion that they hold people in high regard.
 3       These people will have earned that on a day-to-day basis
 4       over years and years of giving feedback to others.  So
 5       whilst he describes it as a culture.  No, it's just a
 6       fact.  That's what happens.  People are there and they
 7       are consistently doing their job.  Thousands and
 8       thousands of cases, turning out findings.  That's what
 9       happens and I've been to Manchester and Aberdeen and
10       they did the same.  They held their peers with longer
11       service -- sorry, certain of their peers with longer
12       service in high esteem.  That has to be clarified.  It's
13       not just everybody with longevity in the job that's held
14       in high esteem, it's earned.
15   Q.  There are two particular points I will ask.  First of
16       all -- and, please, I am not suggesting anything
17       conscious and deliberate in what I am next about to
18       suggest -- can you understand in a situation in which
19       there is that degree of respect afforded to certain
20       senior individuals that it does have at least a risk of
21       compromising the independence of the verification by
22       more junior individuals if they follow on and are told
23       that Mr Macpherson, for example, has already confirmed
24       this identification to a 16-point standard?
25   A.  I can understand the thought process behind it but in
page 122
 1       reality I would suggest that that's not how they were
 2       trained; that's not how they performed.  In fact, you
 3       might even have regarded that some fingerprint
 4       comparisons are almost adversarial, that you are trying
 5       to find something wrong, so if you can eliminate that
 6       fact from your mind that there is nothing wrong then the
 7       decision is correct.  So I would suggest that,
 8       irrespective of whether it was Mr Macpherson,
 9       Mr Mackenzie or anyone else, he or she is making a
10       decision on their behalf not Mr Macpherson's behalf and
11       any training that I've been involved in that's certainly
12       been imparted to the individuals: you make the decision
13       for you.  You have to speak to and also on behalf of the
14       system, the organisation, everything it stands for, not
15       Mr Macpherson.
16   Q.  The other point is in relation to the question of
17       someone being, in some senses, better at the job the
18       more number of years they have.  That is what Mr
19       Luckraft is saying here: a culture where years of
20       service is made equivalent to a higher skill level.
21           Can I ask you this: in 1997, February 1997, when you
22       were looking at Y7, how long had you been qualified as a
23       fingerprint expert?  If I remember correctly, the period
24       is taken from the point at which you start training not
25       the period at which you qualify as an expert.  Is that
page 123
 1       correct?
 2   A.  Yes, that's when you present your CV to court you
 3       mention the fact from the day you start.  So it was 5th
 4       January 1971.  So that would be whatever that was.
 5   Q.  26 years?
 6   A.  Yes.
 7   Q.  So by February 1997 you are 26-years qualified.  You are
 8       the second most senior Fingerprint Officer in the
 9       Glasgow Bureau?
10   A.  No, I would suggest I was the Quality Assurance Officer,
11       whether I was the second most senior, I don't ...
12   Q.  So you were more than eminently qualified in relation to
13       fingerprint examinations?
14   A.  It's not a case of being eminent.  If you are qualified
15       as a fingerprint expert and you have been doing the job
16       day-in-day-out through thousands and thousands of
17       comparisons, if that qualifies you then the answer is
18       yes.
19   Q.  The reason I ask you this question is even in your own
20       statement when you come to the fact that in the civil
21       charting, the charting you did of Y7 for the civil case,
22       you were able to chart 16 points in sequence and
23       agreement, whereas in February -- and that would be in
24       2006 -- whereas in February 1997 you had not found
25       16 points.  You don't know how many you found but it was
page 124
 1       fewer than 16.
 2           If I understand the explanation you give for being
 3       able to do it in 2006, there are two explanations: first
 4       of all, you may have had different material in 2006 and,
 5       secondly, you had greater experience in 2006.
 6   A.  I don't think I actually mentioned that.  I know other
 7       witnesses have said that, about having greater
 8       experience but I don't think I said that.  What I did
 9       differentiate is that the material I was presented with
10       by the Scottish Executive lawyers, who then had the
11       benefit of producing enlargements from digital lab as
12       opposed to a photographic lab, seemed slightly clearer
13       to me.
14           The remit I was given -- and I think previous
15       witnesses like Mr Bruce and company explained to you,
16       that we weren't asked to mark 16 in sequence and
17       agreement, what we were asked to mark was what we saw at
18       the time.  So what I produced I couldn't tell exactly
19       which characteristics.
20           I believed in 1997 that some of, perhaps, the
21       incipient ridges weren't so clearly visible to me but
22       with the material I was afforded or was asked to mark up
23       these characteristics which I thought I looked at, they
24       seemed sharper to me.
25           So I demonstrated them on the enlargement but there
page 125
 1       came a commentary with it to the Scottish Executive
 2       lawyers.  So it wasn't just about, "Here's 16 that I
 3       prepared for court".  It wasn't like that at all.  I was
 4       asked to mark what I thought I saw at the time.  The
 5       reality was I believed it was characteristics in this
 6       group.  Which 10, 11, 12, 13 they were, I'm sorry, I
 7       don't know.
 8   THE CHAIRMAN:  You had no record of what you had seen in
 9       1997.
10   A.  Absolutely none, no.  Again, to repeat myself from this
11       morning, I was asked to validate the response from the
12       Bureau and that's what I did.
13   MR MOYNIHAN:  If I can then go on to paragraph 7 in
14       Mr Luckraft, again what he is doing is carrying on with
15       this question of what he calls the peer pressure culture
16       within SCRO.
17           There's obviously -- and I will not read it out for
18       obvious reasons -- an offensive remark made about
19       Ms McKie.
20           Do you have any comment on this?
21   A.  No, I'm astonished that actually appears here.  I'd like
22       to know who it was he was saying said this.  Whilst I
23       can't guarantee every piece of conversation that went on
24       within SCRO at that time, it is hearsay and I've never
25       heard that described.  I personally have no opinion on
page 126
 1       any of these individuals described in this document.  So
 2       for any of us, particularly in my position, to say that
 3       would be just farcical.
 4   Q.  The final paragraph on page 3 is paragraph 9.  He says:
 5           "In my experience, there was definitely a pattern
 6       emerging at the SCRO Fingerprint Bureau of a culture of
 7       being able to push a comparison to tease 16 points in
 8       agreement.  This was also the area where there was
 9       probably the most peer pressure with junior fingerprint
10       officers because the SCRO fingerprint volume crime case
11       section, in which I worked, did not make identifications
12       in cases with less than 16 points."
13           Again, I just put that to you for your comment?
14   A.  Yes, two things, Mr Moynihan.  I've heard this before
15       "tease".  I'm still at a loss to understand what that
16       actually means and I've heard it described as if you've
17       got 14 you've got 16.  No, you don't.  If you've got 14
18       you've got 14, so why would you tease it.
19           The second point, not to make identifications with
20       less than 16, I believe I've already described that that
21       information did, in fact, leave the organisation and was
22       regarded as an identification.
23           Just to wind back ever so slightly, you mentioned
24       Mr Padden being concerned over the fact it didn't reach
25       prosecution.  I would suggest that any fingerprint
page 127
 1       expert.  I's nothing to do with him and her whether it
 2       reaches prosecution or otherwise.  They have a finding
 3       which they report on, whether to the police or the
 4       police and the prosecutors.  That's what they do.
 5   Q.  If I move to page 4, paragraph 13, this is the start of
 6       a long chapter in which he relates a specific incident.
 7       The background to this is that we had evidence earlier
 8       at the Inquiry from a Mr Sheppard from the National
 9       Training Centre at Durham.  He recounted, if I remember
10       it correctly, that an officer, subsequently confirmed to
11       be Mr Luckraft, had received a written warning.  What
12       Mr Luckraft is saying is no, he did not receive a
13       written warning.  So that is the first part: did not
14       receive a written warning deals with what Mr Sheppard
15       had understood.
16           If I understand, though, what this relates to is he
17       recounts a particular case in which he had been involved
18       where he had questioned the conclusion reached by other
19       officers?
20   A.  Yes.
21   Q.  What I would like you more specifically to comment on --
22       it begins at paragraph 13 -- is paragraph 22 on page 5.
23       He says at some point later on -- so that is after the
24       matter had been dealt with -- you, as the Quality
25       Assurance Officer, asked to see him and:
page 128
 1           "I was allowed to look at the case again with
 2       enlargements but I came to the same conclusion it was
 3       not an identification.  I stated that it was not
 4       possible for such a vast difference of opinion between
 5       experts.  Alan Dunbar said to me that he was
 6       disappointed that I had not resolved the issue by
 7       initially stating to Collette Orr that the scene of
 8       crime mark was insufficient for any comparison to be
 9       made, ie containing between 1 and 7 characteristics.  I
10       answered how could this be the case when two fingerprint
11       experts had found 16 and 14 characteristics in
12       agreement?"
13           If I understand it correctly, what Mr Luckraft is
14       saying is that the matter ended not with any written
15       warning but at most that expression of disappointment by
16       you the matter had been handled in the way that he did.
17       Is there any truth in what Mr Luckraft says about the
18       manner in which this particular matter was handled?
19   A.  For his perception, absolutely not.  I'd just like to
20       clarify that he said that he never received a written
21       warning from Mr Bell or I.  Now, I can't comment on who
22       Mr Bell sends written warnings to because that should
23       be confidential and I accept that -- I wasn't in a
24       position to offer --
25   Q.  If I just confirm, it's Mr Sheppard, the gentleman at
page 129
 1       the National Training Centre at Durham, who said a
 2       written warning had been issued.  Mr Luckraft agrees
 3       with you that there was no written warning.  So
 4       Mr Luckraft's not at odds with you.  So if you forget
 5       about a written warning.
 6           What Mr Luckraft is doing in these pages that I have
 7       just quickly gone through with the beginning and end is
 8       there was no written warning but there was an expression
 9       of disappointment by you at the manner in which he had
10       handled the particular disagreement?
11   A.  You are right to say that's the beginning and the end.
12       The beginning I don't recognise.  The middle bit is the
13       important part.
14           Mr Luckraft had occasion to challenge an
15       identification but not in the appropriate manner that
16       was described.  What you have got here is a culmination
17       of his perception of how it was handled.  Mr Luckraft
18       didn't listen to what was being advised to him regarding
19       the way we go around a possible erroneous identification
20       claim, because bearing in mind when it's brought forward
21       it's only a possible erroneous identification.  You will
22       see from Mr Luckraft's statement when you read through
23       it he has been the arbiter of that fact himself,
24       contrary to what it was illustrated to him.
25           There is one other fact that he doesn't mention.  He
page 130
 1       confronted Mrs Orr -- and I will bring Mrs Orr's name
 2       into this testimony -- he confronted Mrs Orr who made
 3       the identification in an open office in an aggressive
 4       manner.  He, at a later stage, then confronted the next
 5       person who had agreed with identification, Mr Charles
 6       Stewart, in the office.
 7           The procedure was quite clear -- and just no doubt
 8       what the procedure is -- that at that time if there was
 9       any thought of a possible erroneous identification it
10       had to be immediately passed to the Head of Bureau.
11           After this particular instance it reverted to the
12       Quality Assurance Officer and we reissued the procedure
13       regarding this matter.
14           He had twice not followed procedure.  I had then
15       tried to regain the procedure, whereby we would obtain
16       multiple sets of enlargements which people could mark
17       and illustrate and then discuss and it was at this
18       discussion Mr Luckraft then winds forward to.  His
19       memory is not quite correct in so much that he says
20       after this paragraph at a later juncture that he
21       produced a report to say he wasn't happy about it.
22           During this facilitated meeting with myself with two
23       enlargements trying to demonstrate or otherwise as to
24       identity he produced the report during the discussion
25       regarding possible erroneous.  In his report he made
page 131
 1       complaints about the way it was handled, about myself
 2       and the fact he had already decided it was an erroneous
 3       identification.  So he had shifted the goal posts
 4       100 per cent and, yes, I was extremely disappointed that
 5       I hadn't been able to manage the situation and at a time
 6       where the McKie case was prevalent we had this stuff
 7       going on in the office.  It wouldn't have gone on had
 8       the procedures been followed appropriately because
 9       allowance was made for individuals to say, "I don't
10       agree with this because ..." and you would demonstrate
11       it.
12           There's a two part phase to this discussion.  I
13       would discuss with the individuals opposing.  We're
14       talking about an instance that happened three times in
15       my entire tenure -- ten and a half years -- and on
16       occasions they weren't round to be erroneous.  There was
17       a reason and parties accepted.  We never got to that
18       phase with Mr Luckraft because he escalated it into
19       something else and I informed him at that time I had to
20       step back from it at that stage.
21           So it was then passed on because what I regarded as
22       a complaint, because you don't come to a facilitated
23       discussion regarding a fingerprint comparison with a
24       seven or eight page report with 50-odd paragraphs
25       telling me how you have been treated.  That's got
page 132
 1       nothing to do with the fingerprint identification.  So
 2       clearly I had to step back from it and asked him to do
 3       the same.
 4           I'd also like to clarify just at the end of this,
 5       because it's coming up next, that he says he doesn't
 6       know whether it went to court or not.  Now I assured him
 7       at that particular time we were actually beyond the
 8       court procedure because of the backlogs and I assured
 9       him it hadn't gone to court.
10   Q.  That was going to be the end of my rehearsing of the
11       specifics of what Mr Luckraft had said.
12           Now I will just give you the opportunity, is there
13       anything that I have not covered that you would feel the
14       need to cover in relation to Mr Luckraft or have we
15       exhausted the point?
16   A.  No, I don't think so.  There are several points and I
17       could go on about it.  Again, it's Mr Luckraft's
18       perception which I genuinely don't recognise.  I could
19       take it from you if there were several people that were
20       coming.  Mr Luckraft's sets himself up as somebody
21       different because he was the first to come in from
22       outside SCRO.  He worked somewhere else but what he
23       fails to tell you is the reason for that is that
24       SCRO didn't pay very well and to attract people to
25       Glasgow was an absolute chore and even if we had an
page 133
 1       expert shortage, which clearly we did with a 7,000-case
 2       backlog, then it was only when we were able to advertise
 3       an appropriate going rate of financial remuneration did
 4       people start coming.  So Mr Luckraft just happens to be
 5       the first person but I don't see statements from all
 6       those others that have come into the Bureau.
 7   Q.  That concludes that particular chapter of peer pressure.
 8       I want now to go just to two incidental details, one
 9       that serves two points.
10           If I begin with the question of reports and
11       enlargements.  I would just like to clarify one
12       particular thing: in paragraph 4 of your witness
13       statement, you mention that after you qualified in 1978,
14       at the top of page 2 of the statement, around 1990 joint
15       reports were introduced and then you say:
16           "This resulted in a dramatic drop in the number of
17       cases where officers actually gave evidence."
18   A.  Yes.
19   Q.  What I would like you to clarify is what the causal
20       effect was.  What was it that produced the reduction in
21       the number of occasions when officers were giving
22       evidence?
23   A.  Prior to this when we gave evidence to the courts, they
24       then decided whether to call the expert or not.  More
25       often than not they had you attend, just in case.  When
page 134
 1       they decided to use you, you had to try and use
 2       everything from your memory.  You weren't allowed
 3       that -- it wasn't a production, your statement.  It was
 4       your statement.  So they were very police-oriented.
 5           When the joint report came in it was actually used
 6       as evidence and could be served on a person in advance
 7       of a trial.  So if a person had three weeks' notice to
 8       consider the information they would decide whether to
 9       contest or not.  So on many, many occasions they decided
10       not to contest.
11   Q.  So, if I understand it correctly, prior to 1990
12       Fingerprint Officers were just like any other witness,
13       there was no formal notice of their inclusion?
14   A.  No, that's correct.
15   Q.  But from about 1990 there was a report disclosed to the
16       defence that, more often than not, brought about an
17       agreement of the fingerprint and Fingerprint Officers
18       did not need to give evidence.
19   A.  Yes, there's that and it also gave the defence a chance
20       to prepare any defence that they had when they saw the
21       information.
22   Q.  I am grateful to you.  The other end of that particular
23       topic is at paragraph 170 of your statement.
24   A.  Yes.
25   Q.  This takes us to the point where the decision has been
page 135
 1       made to move away from charted enlargements and you
 2       mentioned being present at a meeting.
 3           The only reason I wanted to ask you about this is
 4       that Mr Gilchrist, who is the person who is named as
 5       having been present, has no recollection of the meeting.
 6       It is not to say it didn't occur, he just has no
 7       recollection of the meeting so it was just to -- yes, it
 8       is Mr Gilchrist, just to ask you to clarify, first of
 9       all, you are referring to a meeting attended by Cathy
10       Jamieson, that would be the Justice Minister?
11   A.  Yes, that's correct.
12   Q.  And Mr Gilchrist?
13   A.  No, it's a completely separate meeting.  I think when
14       you read it -- I know Mr Gilchrist referred to that
15       because I read his transcript that night but it was
16       never intended to confuse the issue with being one
17       meeting.  What I've actually said was "I was present at
18       the time of the suggestion that non-specific
19       case-specific photographed enlargements ought to be used
20       was made to senior figures such as ..."
21           So here we are, maybe on different occasions.  Now,
22       Mr Gilchrist indeed met with myself, Mr Ewan Innes who
23       was the head of the then Scottish Fingerprint Service
24       and Karen McBride who was filling in a trainer's role
25       and taking part-time quality assurance.  The three of us
page 136
 1       met with Mr Gilchrist to put forward what we had
 2       available to view.  They were only suggestions at the
 3       time in the move to the non-numeric standard.
 4           People in other parts of the country had been doing
 5       much the same thing so we were very, very close to the
 6       generics that perhaps Mr Mackenzie showed you in his
 7       demonstration about the lake, the bifurcation, all that
 8       sort of stuff and poroscopy and ridgeology.  So they
 9       were very generic.
10           One thing I do remember is that both he and then
11       when we again met with Cathy Jamieson, was they
12       understood what we were trying to do but were both very
13       concerned they were non-case specific because of the
14       McKie case.  That was just their concern.  They made
15       that very clear.
16           Mr Gilchrist met with us in what was -- when we were
17       still based in Pitt Street in Glasgow prior to the move
18       to Pacific Quay and the reason I remember it so vividly
19       is because I booked the room and I booked coffee and
20       biscuits, et cetera because that's what you had to get
21       signed for.  I didn't have that power in those days but
22       I do remember him and the reason I remember it so
23       vividly there were committee rooms in the top floor of
24       Pitt Street that you could hire -- sorry, not hire but
25       put your name against as a department and block times
page 137
 1       allotted and they were all non-available.  So I was
 2       given permission to use one of the Chief's committee
 3       meeting rooms.  So it was the only time I was in this
 4       exalted area in the building and that's why I remember
 5       it.
 6   Q.  What I what to understand is why it was that these
 7       senior figures, as you say, conscious of the McKie case,
 8       were at that stage reluctant to move to generic
 9       enlargements.
10           What were the reasons being given by these senior
11       figures to you for not making that change?
12   A.  I think you've basically answered what they said to us.
13       It was the timing in their perception.  We went through
14       the procedures and we laid it down in front of them and
15       we tried to explain that there was no
16       scientific evidence of 16 points.  There was no legal
17       requirement for 16 points, that it was indeed a
18       recommendation.
19           So that they accepted.  It was only when we started
20       talking about these non-case specific enlargements
21       compared to being requested, we assured both
22       Mr Gilchrist and Mrs Jamieson that if, indeed, they were
23       requested on an individual basis then they would be
24       produced but it was, as far as I could see, it was
25       purely on the timing of this announcement that we would
page 138
 1       move away from it and it was to do, indeed, with the
 2       McKie case.  They didn't make any secret of that fact.
 3   Q.  Did they at that stage wish the Scottish Criminal Record
 4       Office to stick by the existing practice that charted
 5       enlargements would be produced in every, at least, High
 6       Court case?
 7   A.  I think that, again, at the risk of repeating myself, I
 8       think it was the timing.  They saw what we were trying
 9       to -- the reality is we were ready for non-numeric
10       standard long, long before this.  We were actually held
11       back from progressing it because of the events
12       surrounding the Mackay Inquiry, et cetera.  But we, in
13       actual fact, were ready to go at the same as England and
14       Wales and we were -- representatives from our
15       organisation (Mr Mackenzie, Miss Milligan and myself)
16       were all on committees and groups that discussed this
17       throughout the UK and we weren't doing something
18       different from England and Wales, we were on the same
19       page, but we were prohibited from doing it through
20       external factors.
21   Q.  The final topic -- I will be brief, sir, I am conscious
22       of the time -- is in relation to Mr Ashbaugh.  You will
23       have heard Mr Mackenzie speak of a conference or talk
24       having been given by Mr Ashbaugh in relation to Third
25       Level Detail that was then brought back by some trainers
page 139
 1       to SCRO in Glasgow.  I understand you may have been one
 2       of individuals who was at the course by Mr Ashbaugh.
 3           What I wanted to know was what the duration was of
 4       the course with Mr Ashbaugh in relation to Third Level
 5       Detail that preceded its being taught at the SCRO?
 6   A.  I would like to clarify just exactly what the attendance
 7       was.  I was there for a week and I was one of 80
 8       trainers who participated in four one-week courses, two
 9       in the south of England and two at Durham University.
10       Mr Ashbaugh used the basis of the material from his book
11       and several other marks, et cetera, that he had come
12       across and what it was, indeed, was an awareness course.
13       I mean, what he was trying to suggest was if you wanted
14       to get down to this sort of level you would need to
15       study a lot more, but it was the essence of the thing
16       and one of the pieces of feedback he actually got from a
17       Head of Bureau in England, Thames Valley Head of Bureau,
18       was that he had enjoyed the course but he was pleased to
19       report that it wasn't actually something different from
20       what he had been doing before but was, indeed, in fact,
21       verbalising what he used to carry out.  So Mr Mackenzie
22       used the word "armoury".  It was another tool to use but
23       it wasn't a different tool from what we had.  It was
24       just it wasn't described on a day-to-day basis.
25   Q.  The final question in relation to this was I asked
page 140
 1       Mr Mackenzie what the scientific claim was in relation
 2       to Third Level Detail and what I mean by that is what
 3       value was being attributed to Third Level Detail.
 4           Is part of the claim that Third Level Detail itself
 5       alone can form a reliable basis of identification of a
 6       fingerprint?  Is that part of the claim?
 7   A.  Yes.  Yes, that's correct.
 8   Q.  Do you know what investigations have been carried out to
 9       validate or verify that claim?
10   A.  I mean, there's been a lot of work carried out in this
11       particular field and previous witnesses have
12       described -- and Mr Wertheim included -- about Edmund
13       Locard in 1912 and Salil Chatergee, there's still work
14       going on and there are numerous pioneers that have
15       looked at this but the reality is -- I think the
16       question you gave a witness the other day: what is the
17       scientific proof in this country?  And the reality is we
18       are still looking at stated cases of Robert Hamilton and
19       a single print.  But an expert cannot differentiate, he
20       cannot ignore that Third Level Detail when he is making
21       a comparison.  So that comes as part of the package.
22       What Mr Ashbaugh is doing is allow you to interpret and
23       explain what you see.
24           I heard the description that you will get a target
25       set of points, four or five characteristics, and then
page 141
 1       move over to the known print and see if you could
 2       identify it.  Yes, we'll accept that but you also bring
 3       this other baggage that comes in the forms of pores,
 4       ridge edges, shapes and an immediate comparison kicks
 5       into place when you look at that known print so it's
 6       actually your memory and your memory is telling you, "I
 7       see the edge of that ridge.  I see a pore here", so you
 8       can't discount it.  So Third Level Detail has always
 9       been there.
10   MR MOYNIHAN:  Those are all the questions from me, sir,
11       thank you.
12   THE CHAIRMAN:  We will rise now for ten minutes until 3.10.
13   (2.58 pm)
14                         (A short break)
15   (3.10 pm)
16   THE CHAIRMAN:  Mr Smith?
17   MR SMITH:  Sir, I do just really have two matters.  They can
18       be dealt with fairly briefly.  The first relates to the
19       general charting machine and the second relates to how
20       diligently the 16-point standard is applied in a general
21       sense.
22   THE CHAIRMAN:  All right, if you want to ask about those.
23   MR SMITH:  I'll try of course not to cover anything else
24       before.
25                    Cross-examined by MR SMITH
page 142
 1   Q.  Mr Dunbar, as far as the charting issue is concerned, I
 2       think that we are aware of a number of views indicated
 3       that it was less than satisfactory in its function.
 4           Is that something you would agree with?
 5   A.  Yes, I do.
 6   Q.  Can I ask you just to move towards the microphone a
 7       little bit.  I think some people are having trouble
 8       hearing what you are saying.
 9   A.  Is that better?
10   Q.  As far as the defect in its use is concerned, we heard
11       some suggestion that when one was trying to mark points
12       on it they weren't actually hitting the mark, almost
13       literally, the point you were trying to aim for.
14           Is that your experience of it?
15   A.  It's my personal experience, yes.  I found it very
16       difficult.  In fact, I mention it in my statement.  With
17       the slightest variation the cursor or pointer could
18       actually jump clear of the ridge.  Whilst I can't speak
19       for every other member of staff, that was certainly my
20       perception of it -- sorry, my findings of it and on the
21       few occasions that I actually prepared enlargement
22       charts using the charting PC I found it very, very
23       difficult -- very difficult.
24   Q.  Can I ask you this: I take it that obviously about this
25       time, about 1999, in particular the time of the trial of
page 143
 1       Shirley McKie, the charting machine was the one that was
 2       used as a means of attempting to demonstrate to, if
 3       necessary, a jury as to where the points matched between
 4       the latent and the inked print; is that right?
 5   A.  Yes, that was the media that we had.  To let you
 6       understand, Lord Anthony, we had no Photographic
 7       Department so we really were relying on the good grace
 8       of Strathclyde Police to provide photographic
 9       enlargements when they could.  Now at that certain time
10       what they call "quick spend money" became available
11       where the Department had the ability to buy this
12       charting PC.  The charting PC was viewed as the future
13       and would be refined when it went on but the reality is
14       that it didn't.
15           I have since seen systems that are reproduced by
16       Sagem and it's their latest versions incorporated in
17       their AFR systems that are very accurate and very, very
18       good.  But what we got was a stand-alone model with some
19       software written in it so it didn't quite capture
20       everything we tried to illustrate.
21           Unfortunately, because we were separate from
22       Strathclyde Police that was a decision that was made.
23       It wasn't necessarily made on a quality decision.  It
24       was made on a needs must and financial decision.
25   Q.  I understand that you were unhappy with it.  Was that
page 144
 1       really from the outset of its being introduced?
 2   A.  I was unhappy in my performance in being able to work
 3       it.  That was for sure.
 4   Q.  Equally, I suppose -- and I don't criticise that, I
 5       think we have all had trouble with software in the
 6       course of this Inquiry to some extent, at least in using
 7       the various machines -- but, as far as that is
 8       concerned, I am guessing that the fact you had
 9       difficulty using it meant the demonstration it was
10       designed to provide wasn't actually necessarily capable
11       of producing an accurate demonstration if the jury was
12       to look at it?
13   A.  I would suggest what we were trying to do, the
14       enlargements were prepared for illustration purposes
15       and, in any case, one enlargement was prepared per
16       individual and used solely as an illustration purpose.
17       The fact that you may not have been able to indicate
18       with the absolute minutest detail on the end of a ridge
19       or the centre of a bifurcation the officers were
20       describing the event that occurred there and, as you
21       seen from earlier evidence, even between the two
22       fingerprint forms there are interpretative differences
23       with regard to bifurcation or ridge ending.
24           What you were doing with the illustration was
25       highlighting the feature or event that took place in
page 145
 1       that position, whether it was 1 millionth of an inch off
 2       I have no idea but you were indicating to the place.
 3           Now, I would suggest that the officers that were
 4       doing this would redo it if it didn't adequately
 5       describe what they were trying to do.
 6   Q.  I follow.  But I take it that -- let's imagine you were
 7       going to court and you had a charted enlargement and no
 8       matter how hard you tried you weren't quite able to get
 9       it exactly spot-on right what you wanted to demonstrate
10       where a point in the latent could be found.  I take it
11       that is something you would disclose, as it were, to
12       either the police or the Procurator Fiscals' Department
13       and say, "Look, I've tried my best but I've got to tell
14       you this machine is not great.  This doesn't actually
15       demonstrate what I was trying to demonstrate".  That is
16       something that surely you would discuss with the
17       prosecution authorities, is it not?
18   A.  With regard to discussing it with the prosecution
19       authorities I would rather doubt.  As I've already
20       explained what you are trying to do is highlight the
21       feature described.  Maybe when you're in the witness box
22       you would offer the explanation that I have already
23       given for the perceived non-accuracy but we are talking
24       about something that's enlarged.  So any perceived
25       difference is going to be magnified.  So whilst it may
page 146
 1       be suggested that it's not precisely on that same spot,
 2       it's close enough to indicate the feature described.
 3           Me, personally, you asked that question: if I wasn't
 4       satisfied with what I was producing for court I would
 5       either do it again or I would get somebody that could do
 6       it and they would demonstrate what I was trying to
 7       demonstrate.  So I wouldn't send it -- if you are
 8       suggesting I would send in some substandard material
 9       then the answer's, no, I wouldn't do that no.
10   Q.  No, I'm not suggesting that for a moment there.  I'm
11       just conscious of the fact that you weren't always
12       entirely happy with what was being produced but it is
13       something that you would, as it were, explain --
14   A.  Indeed, whether it be in court or to the prosecutor but
15       it wouldn't be as a matter of course to the prosecutor,
16       as you maybe inferred.
17   Q.  Very well.  On one point of detail, finally, on this
18       question of the charting machine, were there ever
19       circumstances under which the image of the inked print
20       as compared to the unknown print, there would be mirror
21       images, one would be, as it were, flipped over; would
22       that ever happen?
23   A.  Flipped over.  Could you describe that more thoroughly,
24       sorry?
25   Q.  Yes, it's a terrible question.  I apologise for it.
page 147
 1           Are you aware of circumstances under which, when a
 2       charting enlargement is prepared, with on one side the
 3       un-inked print, on the other the inked print, that
 4       effectively one is a mirror image of the other?  They
 5       are a match but one is presented as a mirror image?
 6   A.  Yes, but again that would have to be clarified with the
 7       addendum that we would produce three enlargements side
 8       by side.  If one was what they call a lateral reversal,
 9       which Mr Smith describes as mirror images, so the
10       bifurcation doesn't end that way, it ends in the
11       opposing direction, when indeed they are the same print,
12       it is caused by the medium that was used to lift.  So a
13       lateral reversal is nothing whatsoever to do with a
14       colour reversal, indeed the two prints when you face
15       them would actually be like that (indicated), albeit
16       they were identical.  So that is a lateral reversal.
17           A third enlargement would then be an illustration of
18       the impression laterally reversed.  So you would flip it
19       and put it round the right way.  So, yes, I have
20       prepared and sent that stuff off but it does come with
21       an explanation.
22   Q.  Yes, but you are saying there would be three images on
23       the --
24   A.  When it's laterally the reversed, yes, that's the case.
25   Q.  The reason I ask is we have been trying to get actual
page 148
 1       copies of it but we only have photocopies.
 2           I think in the David Asbury case there is an example
 3       of a charted enlargement where there is the flipped
 4       image but only two images on the form.
 5           Is that something that you have not seen before?
 6   A.  Sorry, I don't know anything about the Asbury case, no.
 7   Q.  Very well.
 8           Can I ask you a little bit about the 16-point
 9       standard.  I know you have been asked some questions.  I
10       won't cover them again, hopefully.
11           Can I take it that as far as the 16-point standard
12       is concerned, your starting point is, "Am I satisfied
13       with this mark", and the 16-point it's neither here nor
14       there.  Is that a fair way or approaching it?
15   A.  Yes, particularly when I became the Quality
16       Assurance Officer and with regard to this case, that is
17       the attitude that I had to adopt because the information
18       had previously left the organisation, as I described.
19   Q.  I think in this case -- I am sure you don't remember the
20       exact numbers -- but we have heard some suggestions that
21       have been agreed to that in this murder inquiry there
22       were 428 finger and palm impressions of which 235 --
23       about half of them or thereabouts -- were thought to be
24       fragmentary and contained insufficient detail for
25       comparison purposes.
page 149
 1           Again, it is unsurprising, I suppose, in these
 2       figures that you would reduce it to about 200
 3       impressions.  Is that a fair, run of the mill --
 4   A.  Yes, that's correct.
 5   Q.  -- kind of thing.
 6           As I understand it, out of the 193 impressions, the
 7       SCRO experts were able to positively identify, as it
 8       were, to match up 172.  Again, are you aware of roughly
 9       the quantity -- I am not going to hold you to 172 or 158
10       or whatever?
11   A.  Sorry, I don't know.
12   Q.  I would like your comments on something that we
13       understand was said by Mr Macpherson to the Justice 1
14       Inquiry.  It is a fairly short quote but I think what he
15       indicated to the Justice 1 Inquiry was that:
16           "The deceased, relatives, the eventual accused,
17       workers, an Identification Bureau employee, were all
18       compared, identified and signed off by four experts to
19       the 16-point standard."
20           As I understand it, the context is that these 172
21       marks were signed off to 16-point standard.  Is that
22       something, if it is correct, it would surprise you in
23       the circumstances that each and every one to 16 points?
24   A.  No, absolutely not, no.
25   Q.  It would not?
page 150
 1   A.  No, not at all.
 2   Q.  As far as this particular case is concerned, Mr Moynihan
 3       was asking you a number of questions about your state of
 4       knowledge that certain people, I think including
 5       yourself, had not got up to the 16 points at the
 6       material time -- sorry, I've obviously --
 7   A.  No, it's okay.  Could I just clarify that, again, I will
 8       repeat, I wasn't trying to find 16 points in sequence
 9       and agreement.  I never have tried to do that.
10   Q.  Yes, I am sorry.  I am not if I used the word "try" but
11       I am happy to withdraw that.
12           As far as the examination within SCRO there were
13       certain people who didn't find -- if I can put it as
14       neutrally as I can -- 16 points relating to Y7.
15           Can I just understand this, I am assuming that once
16       it was known that Mr Wertheim was challenging the
17       identification of Y7 as belonging to Shirley McKie that
18       is something that would have come to your notice pretty
19       quickly, I take it, as Quality Assurance Officer within
20       the SCRO.  Is that fair?
21   A.  No, as a matter of fact it didn't and I believe I've
22       said in my statement that it didn't.  I had no reason to
23       believe there were any issues.  There were four officers
24       who were dealing with the case.  They were giving
25       evidence and I believe they had been in communication
page 151
 1       with the prosecutor at that particular time.  I didn't
 2       have any thoughts about it one way or the other.
 3   Q.  Can you remind us when was it you first became aware
 4       with regards to the trial.  Was it before the trial,
 5       during the trial or after the trial you became aware
 6       that a challenge was being presented to the SCRO four
 7       officers' identification?
 8   A.  From my recollection and as I've said in my statement
 9       the first time I heard about this is when it appeared in
10       the Daily Record during the trial.
11   Q.  During the trial?
12   A.  Well, I believe it to be during the trial.
13   Q.  I take it at that point you would have been a bit
14       concerned about what was happening, at least interested
15       in what was happening?
16   A.  Well, I was certainly curious and, as I said in
17       testimony and in my statement, that I enquired at that
18       particular time if there was anything I needed to be
19       involved with.
20   Q.  Can I ask you what was it, your title was Quality
21       Assurance Officer?
22   A.  In 1997 it was Quality Assurance/Training Officer.  It
23       was a dual role.
24   Q.  The quality aspect was to do with what, the quality of
25       the work being produced by those within the office or
page 152
 1       was it --
 2   A.  The quality aspect was the evaluation, implementation
 3       and validation of the quality processes within the
 4       department.
 5   Q.  So was it the procedures rather than the actual work
 6       being produced by individuals?
 7   A.  Yes, overall, yes, that's correct.
 8   Q.  But nonetheless I take it in that capacity you would be
 9       concerned to know in case there had been an error, if I
10       put it as loosely as I can, bearing in mind the
11       challenge that had been presented you would be concerned
12       to know what systems could be in place to avoid the
13       recurrence of an error or to show that there had been no
14       error, you would be concerned about that, I take it?
15   A.  If there was an error I would certainly be very
16       concerned about it.  As I've already explained with the
17       position with Mr Luckraft, any possible
18       erroneous identification had a procedure, not something
19       that had an error.  With errors we were very definite
20       about what we were going to be doing with it.  In this
21       case, there was no error so that procedure never arose.
22   Q.  Can I ask you why you were so certain there was no
23       error?
24   A.  This mark had been viewed by four experts, two further
25       experts were then asked to review the mark and they gave
page 153
 1       their findings.  By the end of that working day, a total
 2       of 12 Fingerprint Officers had agreed that this mark had
 3       been eliminated with no person in disagreement.  So I
 4       don't realise where the error would come in.
 5   Q.  The last thing I wanted to ask you about was something
 6       you raised about the phrase "teasing the points".  I
 7       think you said you'd some difficulty with understanding
 8       what was being suggested by that; do you remember that?
 9   A.  Yes, indeed.
10   Q.  Something that may give some assistance in that regard,
11       it a quotation contained in the statement of
12       Mr Zeelenberg.
13           Can I ask you to look at FI0115, please, at page 28.
14       Before going to this I just want to check if you are
15       aware of the Evett and Williams report.  There has been
16       some reference to it already.  You are aware of what
17       that is about I take it?
18   A.  Yes, I was certainly more up-to-date with it at the time
19       I was practising, yes.
20   Q.  The two quotations that are contained
21       within paragraph 121 and 123, I will just read out what
22       is said there and perhaps we can highlight the quotation
23       for the benefit of those in the public benches.  What we
24       can see is:
25           "There is a widespread view among UK fingerprint
page 154
 1       experts that, because they work to a higher number of
 2       points than most of the rest of the world, their
 3       'standards' are, in some sense, higher.  The
 4       collaborative study showed this to be a mistaken view.
 5       If standards are measured by the avoidance of mistaken
 6       identifications, then experts in Holland and Germany are
 7       more cautious than their UK colleagues -- even though
 8       they declare a lower number of points for identity."
 9           If we just go on to the next quote, in number 123 we
10       can see as mentioned:
11           "Probably because of the 16-point standard, a
12       practice has grown in the UK service which the team did
13       not find in the other countries visited.  A fingerprint
14       expert will generally reach an inner conviction about
15       the correctness of an identification long before he has
16       found 16 points.  His or her subsequent activity will
17       centre on establishing that features which are clearly
18       visible in the print can also be seen in the poorer
19       quality mark.  The print is used as a guide for
20       scrutinising the mark.  This is called in some quarters
21       teasing the points ..."
22           I'm not sure if we've got more of a quote and
23       perhaps we can have the next page just to see if there
24       is any more that's quoted, "teasing the points out".
25           I'm just reading on if I can:
page 155
 1           "This contrasts sharply with the practice in
 2       Holland, for example, where the expert must decide on
 3       all of the usable features that are present in the mark
 4       before comparing it with the print."
 5           Do you understand what at least the Evett and
 6       Williams report is referring to as "teasing the points"?
 7       Do you understand the context from that?
 8   A.  Yes, I understand that that was their findings on
 9       interviewing several members of staff from different
10       bureaux, yes.  I understand that, yes.
11   Q.  I am just anxious that you understand, I think, what was
12       being suggested by teasing the points.
13           Is that something you see there is any possible
14       danger of in the analysis, particularly I'm talking of
15       course about Y7, do you think there was ever any danger
16       or possibility that the four experts who identified Y7
17       as coming from Shirley McKie may have, as is described
18       here in the Evett and Williams report, that methodology,
19       teased the points out?
20   A.  No.
21   MR SMITH:  Thank you very much.
22   THE CHAIRMAN:  Miss Grahame?
23   MISS GRAHAME:  No, thank you.
24   THE CHAIRMAN:  Mr Holmes?
25   MR HOLMES:  Yes, sir, there are four matters that I would
page 156
 1       like to cover, hopefully briefly, with Mr Dunbar.  The
 2       first is the course that himself and Miss Milligan
 3       attended in 1999.  Some evidence has been given about
 4       that already and I would like him to clarify a couple of
 5       points with regard to that.
 6   THE CHAIRMAN:  Yes.
 7   MR HOLMES:  The second is the introduction of competency
 8       testing to the Glasgow Bureau.
 9           The third is a question that was asked by my learned
10       friend, Mr Moynihan, about the onset of Mr Wertheim's
11       involvement in this case.
12           The fourth is his attendance at the meeting at
13       Tulliallan about which Mr Mackenzie has already spoken.
14   THE CHAIRMAN:  Yes.
15                   Cross-examined by MR HOLMES
16   Q.  Mr Dunbar, the first matter I would like to ask you
17       about is the training course that you attended where you
18       discovered Y7 being used as part of the materials for
19       that course.
20           Firstly, can you remember when that was?
21   A.  It would be probably the first week in December or the
22       second week of December at the end of 1999, I think.
23   Q.  This was a course that was being run at Durham; is that
24       correct?
25   A.  Yes.  It was run in conjunction with the National
page 157
 1       Training Centres, yes.
 2   Q.  You said this was one of four, as you understood it?
 3   A.  Yes, there were representatives from various bureaux
 4       throughout the UK.  There was 20 on each course and they
 5       were constituted with bureau heads, trainers and quality
 6       assurance officers.
 7   Q.  Do you recall where in the series the course that
 8       yourself and the other individual from SCRO attended?
 9   A.  Yes, we attended at the Durham University.
10   Q.  Do you recall which one of the four courses that was?
11       Was it towards the end or the beginning of the series?
12   A.  Yes, it was the last one, the fourth one I did.
13   Q.  The last of the four.  Were you surprised when you
14       attended that course to recognise Y7 amongst the
15       materials that was being used?
16   A.  It was actually highlit to me that this mark was
17       actually going to be used in the course and Mr Ashbaugh
18       described it to Miss Milligan and myself as "Pat's
19       mark", and that it would be in our best interests to get
20       it out there and discuss the situation surrounding this,
21       to which he was answered that we weren't in a position
22       to do this.  Whilst it would be very good to be able to
23       do so with other Fingerprint Experts, we weren't in a
24       position at that moment in time to discuss the situation
25       and, indeed, Mr Sheppard was notified that it was highly
page 158
 1       improper and definitely not appropriate to introduce Y7
 2       into the classroom scenario because what was happening
 3       with these known against unknown prints, Mr Mackenzie
 4       showed you the fold-up impression that had an elongated
 5       whorl and in actual fact when it was folded up it became
 6       the tight whorl.  So it's on the record as being shown.
 7           That was the way or Ashbaugh was doing it.  He was
 8       giving out the unknown print for analysis and a view and
 9       he was giving out a copy of the known print and people
10       were being asked to make comments on it.
11           Not only did I feel that that was inappropriate
12       because you were really looking at an enlargement of a
13       photocopy, again you weren't looking at normal evidence
14       but when Y7 appeared it definitely wasn't appropriate.
15       So Mr Sheppard was informed that this shouldn't happen.
16           It was at this point I found out that it had
17       actually happened in the previous three courses and not,
18       as suggested by Mr Sheppard, that it was just a chance
19       thing that happened on course 4.  It was a big chance
20       that one but, in actual, fact it had happened at the
21       previous three.
22           This was endorsed whilst in my duties as training
23       officer at the time, when I had my training role on, I
24       had occasion to visit the Dundee Bureau in Scotland and
25       saw above the trainer's desk a copy of what is referred
page 159
 1       to as "Pat's mark" which was a blown-up photocopy of Y7.
 2       So this material had been given out at previous courses.
 3   Q.  Can I ask when did the discussion with Mr Ashbaugh take
 4       place to which you were notified that Y7 was to be used?
 5   A.  I don't remember the exact sequence of events but he
 6       did, in all fairness to him, mention in advance it was
 7       going to happen.  Again, this is where I know the term
 8       "Pat's mark" from.  It was this point we sought
 9       guidance, naturally, from our own organisation this was
10       going on.  Because we were away from our organisation,
11       we sought guidance from senior management.  Mr Sheppard
12       was then informed at an appropriate break that this
13       shouldn't happen and that information was then relayed
14       to Mr Ashbaugh.
15   Q.  That was to be my next question.  When Mr Sheppard was
16       informed, this was during the course?
17   A.  Yes.  I asked Mr Sheppard to step outside.  Mr Sheppard
18       doesn't remember which one of the Glasgow officers it
19       was that was irate, or whatever it was he used, but it
20       was me.  It wasn't a case of bring irate, I just thought
21       it was a very improper and a very inopportune time to be
22       using this material.
23   Q.  Did you have any contact with Mr Sheppard regarding the
24       appropriateness or otherwise of using Y7 in the course
25       prior to your attendance at Durham?
page 160
 1   A.  No.
 2   Q.  Mr Sheppard -- and I will be corrected if I am wrong --
 3       has given evidence that he would be surprised if he had
 4       seen Y7 prior to his examination of it in 2000 and,
 5       indeed, that he wasn't aware until you intimated to him
 6       that the mark was being used as part of the course
 7       materials for the course that you attended.
 8           I wonder if you could have a look at a document for
 9       me.  It is Mr Ashbaugh's e-mail.  It is at CO1752 and it
10       is page 7.  I don't know how that translates into pdf.
11       That is the page.  It is the fourth paragraph down I
12       would like you to have a look at, please.  It is not a
13       particularly good copy, I am afraid, but it is the
14       paragraph that begins:
15           "During October and November 1999 ..." and goes on
16       to say:
17           "I was in London for the Millennium Conference and
18       to carry out the training programme as envisioned by
19       Mr Coombes in Liverpool at the spring conference.  Two
20       courses were to be presented at Hendon in London and two
21       courses in Durham under the auspices of the National
22       Training Centre.  I had copies of the McKie prints on my
23       computer but was unsure if it was appropriate to use the
24       prints as a training tool.  This issue was discussed
25       with the head trainers at both New Scotland Yard and the
page 161
 1       Durham National Training Centre.  They decided to use
 2       the mark but not to reveal where the mark came from."
 3           When Mr Ashbaugh refers to the "head of training at
 4       the Durham National Training Centre" do you understand
 5       that at that particular time to be Mr Sheppard?
 6   A.  I understand that to be Mr Peter Ablett.  Mr Sheppard
 7       was the Head of Fingerprint Training.
 8   Q.  But the use of mark Y7 on all four of the courses that
 9       took place in 1999 was discussed with both Durham and
10       New Scotland Yard; is that correct?
11   A.  Clearly it's been discussed but again, if I could just
12       reiterate, that comes as no surprise and in fact it
13       endorses what Mr Ashbaugh commented to me on that he had
14       the courtesy to mention it upfront because two officers
15       from SCRO were attending, and even he could see the
16       unappropriateness -- if that's a terminology -- but he
17       could see it was inappropriate to do so.  But I would
18       like to reiterate yet again that it had been used
19       because it was referred to in previous courses.
20   THE CHAIRMAN:  But SCRO officers hadn't been on those
21       previous courses.
22   A.  No, they only took -- one of the basic reasons myself
23       and Ms Milligan didn't go separately, which would have
24       been better, to go gather information compare it and
25       then, with Mr Ashbaugh's permission, use his material
page 162
 1       and cascade this training, which is what we did.  But we
 2       were both on a core trainers' course that lasted for two
 3       weeks at the Durham Training School.  The third course
 4       that Mr Ashbaugh's information was delivered on the last
 5       week of the core trainers' course that we were
 6       attending.  So there was other reason apart from that.
 7       It wasn't about safety in numbers or anything.
 8   MR HOLMES:  Was the mark Y7 identified in any way during the
 9       course?
10   A.  No.  As I say, it actually stopped at that moment in
11       time.  It was explained to Mr Sheppard -- we had a
12       discussion with Mr Ashbaugh who was disappointed that it
13       couldn't be used in the light that this would be
14       fingerprint experts discussing it.  I said that I would
15       be glad to discuss it at any time with him provided we
16       were all afforded the same privileges and all the rest
17       of it but at that moment in time, as far as we were led
18       to believe, that mark was not in an open forum or it
19       should not have been in an open forum and hence the
20       reason it was described as "Pat's mark".
21   Q.  The second issue I need to cover with you is competency
22       testing.  Are you aware of when competency testing was
23       introduced at the Glasgow Bureau?
24   A.  I'd certainly be making a guess at it but prior to this
25       case, I would suggest.
page 163
 1   Q.  That would be prior to 1999?
 2   A.  It would be prior to 1997 because Mr Mackenzie was
 3       actually doing work on a competency test when I obtained
 4       the position of Quality Assurance Officer and I actually
 5       helped him put the material together from the old case
 6       envelopes that were down in the basement.  So it was
 7       ongoing at that time.
 8   Q.  Was that an annual thing as --
 9   A.  It developed into an annual thing competency test, yes.
10   Q.  So would all the officers who were at work in the
11       Glasgow bureau in 1997/1998/1999 have sat a
12       competency test at some stage during that period?
13   A.  Definitely.
14   Q.  The third issue that I would like to cover with you is a
15       question that you were asked about Mr Wertheim's
16       involvement in this case.  You were asked by my learned
17       friend Mr Moynihan at the point Mr Wertheim came on the
18       scene he is now disputing the matter, the prosecution
19       might expect to be told there's a problem here.
20           Can I ask when did you discover that Mr Wertheim had
21       been instructed in this case?
22   A.  I wasn't informed.  I actually read it in the Daily
23       Record.  I believe it was a Saturday morning and I was
24       in on other duties.  As you will appreciate, even HMI
25       announced that the Quality Assurance Officer was
page 164
 1       spending 90 per cent of his time on training matters and
 2       really the post should be split.  So, to try to keep
 3       abreast of everything that was going on with the
 4       ludicrous situation, the first time I was aware of it
 5       was an impression of Y7 appeared in I think it was the
 6       front page or page 3 of the Daily Record.  That was my
 7       first knowledge of it.
 8   Q.  Was that before or after the trial had taken place?
 9   A.  I believe it was almost at the culmination of the trial
10       at that time.
11   Q.  The final matter that I would like to ask you about is
12       the meeting that yourself and Mr Mackenzie attended at
13       Tulliallan.  I am not going to ask you anything about
14       what took place during the meeting but you will have
15       heard Mr Mackenzie give evidence about the conversation
16       that he says took place between yourself, Mr Mackenzie,
17       Mr Zeelenberg and Mr Rudrud during one of the breaks.
18       Do you recall that conversation?
19   A.  Yes, I recall the conversation.
20   Q.  What, can I ask, is your perception of what was said to
21       you during that break?
22   A.  Well, mr Zeelenberg was discussing with Mr Mackenzie and
23       I the fact that he would ask us to think of our futures,
24       both professionally and personally, and think of our
25       families.  At that stage, I just stopped listening
page 165
 1       because in all the years that I'd compared fingerprints
 2       up to that point, irrespective of what my findings were,
 3       my family had never been mentioned.  I take great
 4       personal umbrage the minute you bring a family into a
 5       fingerprint comparison.  It just beggars belief.
 6           So the conversation was terminated and this
 7       information was imparted to Mr I think it was Lesley of
 8       UNISON.  Anyway, it was the UNISON lawyer that attended.
 9       But at that particular time the discussions upstairs
10       were terminated as well and that was the only reason
11       they were terminated.  Because it's never happened to me
12       before and I certainly would hope it would never happen
13       to anyone that their family would be mentioned.
14   Q.  What was your interpretation of what was said to you at
15       that time?
16   A.  Well, not only did I regard that as a threat, an open
17       threat, he also mentioned the fact that if we were to
18       change our mind, then the fingerprint community would
19       applaud us.  So if that wasn't pressure, I don't know
20       and it just beggars belief that Mr Zeelenberg was given
21       a completely separate remit from Mr Mackenzie and I
22       which I'm prepared to believe now, in retrospect, that
23       it was, because I've seen charts that Mr Zeelenberg
24       prepared on Mr Mackenzie's presentation at Tulliallan,
25       commenting on them, and these were clearly submitted to
page 166
 1       the investigation team.
 2           Now, we were never asked that question about
 3       Mr Zeelenberg and Rudrud's presentation.  So there were
 4       clearly two different factors going on here.
 5   Q.  You received a telephone call, according to
 6       Mr Mackenzie's evidence, a short time after the
 7       Tulliallan conference; is that correct?
 8   A.  Indeed, yes.
 9   Q.  Was that from Mr Zeelenberg?
10   A.  Yes.  Mr Zeelenberg came on looking for Mr Mackenzie.
11       To let you understand the situation, we had an open
12       plan office in Pitt Street before we moved to Pacific
13       Quay and Mr Mackenzie and I occupied the top two desks
14       in the Chief Inspector's office facing one another.  It
15       wasn't exactly ideal for privacy nor personnel-related
16       issues but, however, that's what we had and we shared a
17       phone.
18           When I picked up the phone, it was Mr Zeelenberg
19       informing me that he wasn't particularly pleased with
20       the presentation that SCRO had given and that if we
21       continued in this vein -- I don't know the exact words
22       now -- but he would call foul to the fingerprint world,
23       whatever that meant.  So I duly asked him to take his
24       time and just repeat what he had said and I recorded it
25       on a message pad.  I brought that to the attention of
page 167
 1       the Director of SCRO, Mr Harry Bell, just a few minutes
 2       later after Mr Mackenzie had returned because I felt it
 3       was fairer the information should go to him as that's
 4       who it was intended to be delivered in the first place.
 5   Q.  Once again, can I ask you what your own perception of
 6       what was said to you was?
 7   A.  He was clearly annoyed that we were ... how should I put
 8       it?  Sticking to this presentation as he described it.
 9       As I say, I'd be a liar to say that I remember all the
10       exact words but he was quite excited about it.  When we
11       reported that to Mr Bell, we happened to be in the
12       office at the time when Scott Robertson phoned -- or
13       Scott Robinson; I'm not sure of his surname -- and he
14       was actually the investigating officer on behalf of
15       Mr Mackay and he actually came on to say that
16       Mr Zeelenberg had been on to him.  So Mr Robinson
17       apologised to Mr Bell on Mr Zeelenberg's behalf because
18       it was inappropriate what he did.
19   Q.  We may hear other evidence in due course that others
20       take a different view of the conversations that you had
21       with Mr Zeelenberg but, for now, that is your
22       understanding at the time and your actual understanding
23       today; is that correct?
24   A.  I would take task with that.  It's not only my
25       understanding, I would like to reiterate where did my
page 168
 1       family come into this analogy?  I'm just absolutely
 2       astounded now as I was then.  It just beggars belief
 3       that fingerprint comparison would end up with that.  We
 4       have people in this particular investigation that have
 5       turned themselves into judge, jury and executioner and
 6       what they should be doing is saying, "I found this print
 7       to be identical or not identical" and the answer to some
 8       of Mr Moynihan's questions, it's not up to the
 9       fingerprint expert to prosecute nor find guilty nor
10       impose a sentence and that's what's happened here.
11   MR HOLMES:  Thank you, Mr Dunbar.  Those are all the
12       questions I have.
13   THE CHAIRMAN:  Mr Moynihan, do you have anything?
14   MR MOYNIHAN:  I have no further questions.
15   THE CHAIRMAN:  I just want to ask you about something
16       totally different to anything we have dealt with today
17       and that is in paragraph 227 of your statement -- and
18       you may not recollect or you probably do recollect -- we
19       have this question over QI2 about the words "ident
20       required".  I just was interested in your interpretation
21       of that.
22           It could be that QI2 involves possibly three prints
23       or the prints of three people -- may do, I'm not sure --
24       but one was said to be or one was identified as that of
25       what was then the accused or being treated as the
page 169
 1       accused.  Your interpretation of it, could you just give
 2       me that again as to why they would ask for the "ident
 3       required"?
 4   A.  I'd like to record I never compared QI2 nor any of the
 5       surrounding marks that there were there, but I was
 6       present when I saw this being displayed on the screen in
 7       the Inquiry.
 8           It is an unusual phrase to put but I've seen all
 9       sorts of stuff written there and I'm surprised tat no
10       other witnesses have pointed that out to you.  Whilst
11       I'm not suggesting it's not evidence or could be used
12       further down the line as evidence, I really have no
13       comment to make.  All I could put myself in a position
14       if I saw that as the examining fingerprint expert, I
15       would be thinking, "Well, you'll get what you get
16       because I can't do anything different than what I've
17       got."  It would hold nothing for me.
18           It may point out the fact that I should be starting
19       with the deceased with all my comparisons and this would
20       be included in it, but I really can't say any more than
21       that on it.  I really don't know what was in his mind.
22   THE CHAIRMAN:  I was just trying to get it clear in my own
23       mind.  Mr Asbury had been identified and so it was
24       really could be interpreted in your view as meaning that
25       the Fingerprint Officer should be looking at it in
page 170
 1       relation to somebody else.
 2   A.  Really, I don't know what was in his mind.  I apologise
 3       but I certainly didn't see that at the time and it's
 4       only when it's been brought to our attention here.  I
 5       was never in receipt of that material.
 6   THE CHAIRMAN:  It is just the comment in your statement I
 7       wanted to clarify with you.
 8   A.  It is to do with -- I was shown a document -- maybe I'm
 9       looking at the wrong part, sorry.
10   THE CHAIRMAN:  I do not really want to labour over this
11       because all I was interested in was just the
12       interpretation that you placed upon it.
13   A.  So that's with regard to what the next comparison was to
14       be.
15   THE CHAIRMAN:  Yes.
16   A.  As I say, I would be looking into it rather than
17       anything else.  But the bottom line if somebody put any
18       comments on a form 13 for us to examine, I would be
19       dismissing it.  Yes, I would take it as guidance and
20       maybe start in a particular fashion.  It might even be a
21       group of marks I was asked to go to first.  There may be
22       a reason for that that I'm not aware of, but I would
23       then tend to try and find out what that reason was from
24       my own personal standpoint.  But what he meant by it, I
25       don't know.
page 171
 1   THE CHAIRMAN:  I appreciate you did not write it and it was
 2       really seeing the benefit of your experience as to what
 3       it could mean.  Thank you very much.  That is very
 4       helpful.
 5   A.  Could I just make one statement, Lord Anthony, before I
 6       leave.
 7           Through this since 1997 I compared this mark
 8       honestly and professionally, despite what other folk
 9       have said.  I came to my conclusions independently,
10       contrary to what people have said, and I genuinely
11       believe there's a reason this mark Y7 has not been
12       identified as anyone else, because that's what the
13       investigation team tried to do.  They took the material
14       away for a lengthy period of time and tried to appoint
15       ownership to someone else and believe there's a very
16       good reason why they couldn't do that: because it's
17       already been identified.
18   THE CHAIRMAN:  Thank you very much.
19                      (The witness withdrew)
20   THE CHAIRMAN:  Mr Moynihan, a short time but --
21   MR MOYNIHAN:  It is a matter for you, sir.  The next witness
22       is Mr Zeelenberg.  What I had suggested to
23       Mr Zeelenberg, but anticipating we would have arrived at
24       this point at 3.30 not 3.50, is we might have had a
25       break here of, say, half-an-hour to make sure the
page 172
 1       technology is working properly for him because he is
 2       going to present a presentation.  I am in your hands,
 3       and indeed in Mr Zeelenberg's hands, whether we have
 4       gone beyond the point where there is value in that.
 5   THE CHAIRMAN:  It is 3.50.  I think it would be better to
 6       make a fresh start tomorrow morning.  That will be the
 7       course that we will take.  So, if Mr Zeelenberg does not
 8       mind, we will start tomorrow at 10.00.
 9   (3.55 pm)
10        (Adjourned until 10.00 am the following morning)
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