page   1
 1                                     Thursday, 8th October 2009
 2   (10.00 am)
 3                ARIE JACOB ZEELENBERG (continued)
 4               Examined by MR MOYNIHAN (continued)
 5   Q.  Good morning, Mr Zeelenberg.
 6   A.  Good morning.
 7   Q.  What I want to do is just to start with a number of
 8       miscellaneous details and then come to the main points
 9       largely in relation to fingerprint practice and
10       procedure to begin with and then we will look at really
11       a series of questions building up to the main ultimate
12       question of the lessons that we can learn from this
13       particular case.
14           If I begin with the miscellaneous points, the first
15       one is a very short one.  You have given us a very
16       detailed presentation in relation to Y7 and QI2 in which
17       you have effected a comparison with highlighting various
18       points of detail.
19           Have you used, for the most part, the Inquiry's
20       comparative images as the basis or your source material
21       from which you have been drawing the points?
22   A.  Yes, definitely I did, yes.  For that purpose, I took I
23       think it was 2000 EPI scan of the enlarged photo and
24       that I used in the presentation.
25   Q.  I am grateful.  That then means that your presentation
page   2
 1       is, indeed, directly comparable with all the other
 2       exercise material that we have?
 3   A.  Yes.
 4   Q.  I am grateful.
 5           The next point, again, of detail is that you have,
 6       however, in carrying out your own work in preparing for
 7       the Inquiry, you have studied a range of images and
 8       indeed we have seem some examples of this on your
 9       slides.  You have included Mr Kent's images?
10   A.  Yes.
11   Q.  And Mr Wertheim's images?
12   A.  Yes, I did, yes.
13   Q.  So as far as you are aware, insofar as anything turns on
14       the difference between one image and another, that is
15       reflected in your presentation?
16   A.  Yes, but I must say that, from a fingerprint point of
17       view, if you look at the detail of the fingerprints,
18       there is no principal difference between one and the
19       other, not even with the brush mark or without a brush
20       mark, the layout of the minutiae and all the details.
21           Sometimes I found the image of Mr Wertheim better in
22       the detail than the others but that may also have to do
23       because if you look at the print that is made from the
24       negative, from the original negative, has some flaws in
25       it, some scratches in it and the colour's a little bit
page   3
 1       off.  So I found that in some -- and also the image from
 2       Mr Kent was pretty good but it was a bit low in grey
 3       scale, at least the picture I have received.
 4   Q.  That is my reason for asking you that the presentation
 5       you have been able to do you have in fact used our
 6       images so far as you can?
 7   A.  As far as I could and as far as the comparison reflects
 8       the comparison I've used the Inquiry images as much as
 9       possible, yes.
10   Q.  I am grateful to you.
11           The next point of detail relates to Y7 and QI2.  I
12       will take them together and ask you the questions
13       separately.
14           I have come to use a term called comparable quality
15       and what I mean by that is, as I understand it, a
16       Fingerprint Examiner will look at marks to decide if
17       there is sufficient detail for that mark to be
18       identifiable before he then proceeds to a comparison.
19       One can talk of the mark being capable of identification
20       or I have used the term of comparable quality.
21           So far as the mark Y7 itself is concerned, did you
22       find on analysis that it had sufficient detail to be
23       capable of identification, that is to say it was of
24       comparable quality?
25   A.  Yes, I have analysed the image and we have a certain
page   4
 1       procedure for that and, of course, our own standards.
 2       We disseminate latents in two main categories: the
 3       pretty good ones that you can compare and identify and
 4       are not on, what I would say, borderline; and there are
 5       others that require extra attention.
 6           Our procedure, I think that it would have gone to
 7       the multiple procedure because of the lower quality and
 8       the low number of points.  That multiple procedure would
 9       be that three independent experts would look at the
10       mark, would make annotations as separately, write down
11       what they think about the quality, write down how many
12       points they have found, where they have found them, what
13       the significance of these points is, the confidence
14       level of the points they have assigned and possible
15       problems they have seen in the mark, possible
16       distortions, and area of double placing.  They will all
17       note this meticulously down and then ask themselves,
18       "Having made this analysis, would I go to the next step
19       of comparison?"  I think that in our system for most of
20       the experts the answer would have been yes.
21           Only then they would go to the comparative stage and
22       then again make the comparison, write down their
23       findings of the comparison, what the value of every
24       individual point is, whether they found dissimilarities,
25       whether they found explanations for the dissimilarities
page   5
 1       and then they make up their own conclusion, write this
 2       down, make annotations in the screen, compare them with
 3       the analysis phase, then make the comparison and then
 4       come back and write down their own conclusion and write
 5       down what areas they want to discuss and what space
 6       there will be for discussion.
 7           Then they will go into a room and the discussion
 8       will be along the lines of the same thing.  They will
 9       first explain their analysis to others.  There will be
10       no interruptions, only questions to inform others, but
11       every one of them independently will read out their
12       analysis phase and if there are no questions and
13       everybody agrees that the comparison should have taken
14       place then they will discuss the comparison.
15           When this is done then they will do the joint
16       evaluation and they will mark the points and say, "I
17       have marked this point, did you mark it?
18           "No, I didn't mark it.
19           "Why not?"  Then we may have some discussions but it
20       is always about, "What do you see?  What is the basis of
21       your conclusion on this particular point?"
22           Only if the standard is met and we are satisfied
23       that the standard is met and I must add that any of the
24       expert at the same time is convinced that this thing is
25       sufficient and he's also convinced personally that he is
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 1       looking at the right donor, only then and if there is a
 2       joint opinion only then the identification is a fact.
 3   Q.  That is rather a long answer I will come back to because
 4       there are various points I want to pick out about that
 5       when we look at the ACE-V methodology.
 6           Before we do, because I will otherwise forget about
 7       it, assuming a mark is, as you say, of pretty good
 8       quality -- we're not talking about Y7 for the moment --
 9       it's not been regarded as complex, would there be a
10       different approach to such a mark?
11   A.  Yes, that would be different.  Then the first examiner
12       would go through virtually the same process, it would
13       only be a little bit less extensive.  He would also mark
14       the points, make up his own mind and would then in an
15       analysis phase then mark up the points of the
16       similarity, would sign off and then would give it
17       anonymously to another examiner for verification.
18   Q.  But in a case of a more straightforward mark do I
19       understand it that the verification would involve, in
20       combination, the original examiner and one other, a
21       total of two?
22   A.  Yes.
23   Q.  Whereas a complex mark there are three examiners in
24       total involved and we will come back to the rest of the
25       detail?
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 1   A.  Yes.
 2   Q.  So your judgment would be that Y7 would pass through the
 3       comparability standard into actual comparison?
 4   A.  Yes, definitely.
 5   Q.  What about QI2?  Do you have a feel for whether it would
 6       pass the threshold to be of comparable quality?
 7   A.  I must disseminate(sic) here between comparable and the
 8       process of identifiable because, in essence, even if you
 9       only have kind of an image of that you say, "What I see
10       is probably a whorl", then it's about semantics almost.
11       If I can see a whorl but no detail I can still compare
12       it if there is somebody who has only arches and I could
13       still exclude him.
14           But I think in a sense what you mean is the
15       comparability in the first stage of the ACE-V process,
16       then we would enter QI2 in the first stage, everything
17       will be in there and I think then in the analysis phase
18       I think it would fail, we would discard it as possible
19       or having the properties for identification.
20   Q.  I am grateful to you for the semantic point because what
21       you are saying is if the police had a specific possible
22       donor of QI2 -- let's say Marion Ross was the specific
23       individual -- there might be enough information in QI2
24       to exclude Marion Ross, but not sufficient information
25       to go on and make a positive identification of an
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 1       alternative donor?
 2   A.  Exactly, that is the case.  Yesterday you asked me about
 3       what is the value of evidence, is it an opinion, an
 4       informed opinion, and if we talk about a comparison as
 5       in the stage of, let's say, looking for source
 6       attribution that is true.  But if we talk about
 7       excluding somebody, I think it's much more certain or
 8       much more certain to exclude somebody than to include
 9       somebody.  That's a different kind of ballgame I would
10       say.  I think the exclusion of a donor is much more
11       factual than the inclusion.
12   Q.  If I then ask you in relation to that particular point,
13       just follow on with QI2, in relation to QI2 I take
14       exactly what you say that there may be some detail in
15       that you would say is inconsistent with Marion Ross so
16       you would exclude her.
17           Is there a difficulty in relation to QI2 in building
18       up even a reliable picture of the precise number of
19       points that are inconsistent with Marion Ross just
20       because of the quality of the image?
21   A.  Yes, that's a difficult question because what fails in
22       QI2 is, I think, the coherence of the points almost.
23       There are some certain points and I've pointed them out,
24       I think, and even if you want to start some type of
25       comparison then you must take the information that is
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 1       there for valid otherwise you cannot start.  So there
 2       are things in there, there are some certainties, that is
 3       the core, some good points that must be there and you
 4       can take that for a start.
 5   Q.  What I was thinking, Mr Zeelenberg, was simply this:
 6       whether one is trying to exclude on an observed
 7       characteristic or identify on an observed
 8       characteristic, there is the same initial question, "Can
 9       I observe something with sufficient reliability to make
10       any assessment of it", and that is true whether one is
11       excluding or identifying.
12           Is that correct?
13   A.  Yes, that's true and that is why the analysis phase is
14       of such immense importance.  We have recently been
15       engaged in a test with Glenn Langenburg of the
16       University of Minnesota and he is doing some survey,
17       some study, and he is giving examiners some copies of
18       latents and he wants them to mark the minutiae.
19           What we do, we would also mark the minutiae but with
20       confidence levels.  So we used three different colours
21       and in the early days I think that fingerprint experts
22       were inclined to mark everything what they thought they
23       could see and we've seen that explained also by Evett,
24       they often used the supposed reference print as a guide
25       to kind of look how smart they were.
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 1           His findings were, short, briefly, it still has to
 2       be published, but briefly that specific to the Dutch
 3       experts they did very, very well when they used
 4       confidence levels because he knew the ground truth, he
 5       knew which fingerprints made the latents.  So that was
 6       different that was different with the Ian Evett study so
 7       to say.  So he knew the ground truth because he knew
 8       when somebody was right and somebody was wrong and he
 9       found out in particular the Dutch experts were very good
10       when they assigned confidence levels and when they were
11       asked to mark everything they would see that their
12       accuracy went down.
13   Q.  If I follow that through, because it is quite important
14       to one of the later themes I have, are you indicating
15       that if an expert is simply asked at the analysis stage
16       to mark everything he sees there is a danger that he can
17       be influenced by the known mark and he can start to
18       believe that he sees features where his point of origin
19       really is the known and not the latent?
20   A.  Yes, the point is here that if you follow the ACE-V
21       method properly you won't look at the comparison print
22       before your analysis is finalised.  But if there is no
23       penalty, if your analysis is wrong, then experts are
24       inclined to correct and say, "Oh, I think I thought it
25       that way", or, "Oh, yes, that is distortion".
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 1           But if we make an analysis and we mark a point with
 2       a certain confidence level, then we must find in the
 3       comparison print, otherwise there's a penalty, then it
 4       is discrepancy.
 5   Q.  We will come on to that again when we are looking at
 6       ACE-V.
 7           The final point of detail I wanted to ask you about
 8       is in relation to Y7 and the question whether it's a
 9       finger from a right or a left hand.  It has been drawn
10       to our attention that there was some discussion of this
11       at Tulliallan after the point when you were able to
12       study the piece of wood.  The minutes, if I bring those
13       up, which are CO0050, page 16, and what I am looking at
14       is the third paragraph on page 16:
15           "Mr Zeelenberg stated that he thought it was a small
16       print for a thumb but it did not change the conclusion.
17       By looking at that the position is more consistent with
18       a left thumb than a right thumb but it could be a
19       forefinger."
20           That bears to be a minute of the Tulliallan meeting.
21   A.  Yes.
22   Q.  First of all, let us leave to the side for the moment
23       whether it is a thumb or a forefinger.  Let's just look
24       at the hand.
25           Is it correct that after you examined the piece of
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 1       wood at Tulliallan, you saw that it was possible that it
 2       was, indeed, a finger from a left hand?
 3   A.  I don't think we have to relate it specifically to the
 4       examination of the door standard.  I think it was a more
 5       general discussion and we were looking at the incoming
 6       ridges from the left and I think, to begin with, they
 7       were ignored by the study or the comparison of the SCRO
 8       and also basically by the investigation of Mr Mackenzie.
 9       So we paid attention to the incoming ridges and I think
10       we agreed that this is a phenomena more likely to fit a
11       right thumb than a left thumb.  I think that was the
12       nature of the discussion.  I think that was condoned by
13       Mr Dunbar and Mr Mackenzie explicitly.
14   Q.  What I take from this is that at one point in the
15       meeting you, in effect, accepted that there was an
16       argument that it was a finger of the left hand.  That is
17       as I read what is recorded?
18   A.  Not a left thumb.
19   Q.  No, a left hand.
20   A.  Yes, because if we look at an index finger, then the
21       indexes are very peculiar in a way because if you look
22       at the right hands, in the prints I must say, there is
23       always a tendency to right slantedness and in the left
24       hand always a tendency to left slantedness but the index
25       is kind of disseminate themselves.  We see in the
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 1       indexes the largest variations in patterns.  So if we
 2       relate the incoming ridges to slantedness of the fingers
 3       then we cannot exclude anything from the left hand but I
 4       wasn't a fly on the wall.  I cannot say what finger it
 5       was so we always have to go for our best guess and what
 6       is the most common what we see.  But having made my
 7       recent survey, just to ten-print cards randomly,
 8       particularly the thumbs, that the incoming ridges in the
 9       left thumb coming from the right and in the right thumb
10       coming from the left was very consistent.
11   Q.  But as you say, that is something that is recent,
12       whereas what I am looking at is something that is ten
13       years ago, in fact nine years ago.
14   A.  The point is that by searching fingerprints you kind of
15       develop an intuitive knowledge and sometimes you say, "I
16       think it's a left thumb", and you struggle to say why
17       you think it's a left thumb.  That's because you have
18       seen thousands of them and you forget to know why -- as
19       an analogy, you drive on the streets, you say that's a
20       Volvo and if asked why you think it's a Volvo you don't
21       know any more.  It's kind of an intuitive thing.
22           In that stage Mr Rudrud and I thought it was rather
23       to be a right thumb than a left thumb and this was
24       condoned by Mackenzie and Dunbar effectively.
25   Q.  Is what I have read to you from the minutes of the
page  14
 1       Tulliallan meeting correct, that after the piece of wood
 2       was examined that you were noted with Mr Rudrud as
 3       saying by looking at the position it's more consistent
 4       with a left thumb than a right thumb but it could be a
 5       forefinger?  Is that an accurate record of that passage
 6       of the meeting?
 7   A.  I cannot recall that.  I was just looking at the
 8       classification now I read more, if you look at the
 9       position, I cannot recall that, and I must say that when
10       I'm looking at it now I think differently.  But then
11       again we had a piece of wood just standing loose and I
12       don't know if this is accurately right.  I'm not sure.
13   Q.  We will leave that.
14           The final one of my points of detail before we move
15       on to the broader questions is to ask you to look at the
16       Rosetta characteristic.  I mentioned to you this
17       morning, I have a difficulty with one of your slides
18       from your presentation comparing it with Mr Swann's
19       charts.  For you, if I can give you the original of
20       Mr Swann's charts, and let us see if the system actually
21       otherwise works.  First of all, I will have that chart
22       given to you.  (Handed)  I think from the conversation
23       we had this morning it is chart D for delta I should ask
24       you to have open but, please, tell me if I have the
25       wrong one.
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 1           Before I bring that up on screen, I also understand
 2       that your presentation from yesterday is now on our
 3       computer system and it is AZ0061 and I am looking for
 4       slide 104.
 5           This is your slide 104, Mr Zeelenberg.  Take your
 6       time because what I understand you are doing is you are
 7       doing a ridge count from the feature you call the
 8       banana, the bifurcation, which for me is SCRO point 9,
 9       out on the left-hand image to the Rosetta characteristic
10       that Mr Dunbar refers to as the hawk-eye and you have 10
11       ridges.
12           Then on the right-hand image what you are doing is
13       plotting to a pink dot the position of the corresponding
14       source and you attribute this to Mr Swann and you say
15       that there are 12 ridge counts.
16           What I have been unable to see is that in the
17       corresponding image that Mr Swann has indeed placed the
18       Rosetta characteristic in the position of your pink dot
19       on slide 104.  If I could try to bring up as a second
20       image a copy of Mr Swann's chart TS0003 and go to chart
21       D for delta on page 5.  Let us try TS0004.  Go to chart
22       D.   (Pause)
23           Mr Zeelenberg, what we will do is move on to another
24       topic and come back to that later.  We will move on to
25       matters that don't require the computer for the moment.
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 1       If you want to just put that big chart down.
 2           I am now going to turn to a number of linked
 3       questions that will turn around the ACE-V methodology
 4       but before I start that we were talking yesterday about
 5       the question of constancy and that is that in the human
 6       finger, barring injury, the pattern of the fingerprint
 7       is constant through life.  However, as we said
 8       yesterday, when that finger is then transferred, either
 9       into a police ten-print or on to an object (for example,
10       at a crime scene), it is not constant but rather is
11       subject to a substantial degree of potential variation?
12   A.  Yes.
13   Q.  Therefore, the impression is not reproducible without
14       variation?
15   A.  Yes, that's true, yes.
16   Q.  Or the print is not reproducible without variation,
17       whether in controlled circumstances or at a crime scene?
18   A.  Yes.
19   Q.  Therefore, when one is looking at fingerprint evidence
20       in court, what one is looking at is one starts with the
21       fact of the potential for variability in the impression
22       and, indeed, the two impressions that are being
23       compared.  One then asks can a Fingerprint Officer or
24       examiner observe sufficient common characteristics
25       between the two subjects of the comparison that are in
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 1       sequence with no unexplained differences sufficient to a
 2       level that is consistent with a unique match.  That is
 3       the object?
 4   A.  Yes, that's ...
 5   Q.  That then leads one to ask the critical question: what
 6       is sufficient to have a unique match?
 7   A.  That's a good question, exactly, and I think that's what
 8       the fingerprint profession, in a way, struggles with at
 9       the moment.  There are I could say two schools here.  We
10       agree on a lot of subjects.  We agree upon the fact that
11       fingerprints are unique and permanent.  We agree on the
12       fact that we have to use a certain methodology, like
13       ACE-V.  We look at the detail.
14           Where we differ is how we define and how we measure
15       sufficiency and that was in a way the dispute about the
16       numerical and the non-numerical.  We, in old school so
17       to say, we have always been inclined to use a numerical
18       standard.  That is not to say that we don't appreciate
19       the small detail like Locard did, described in his book
20       in 1916 already.  We do appreciate the Third Level
21       Detail and I think I've demonstrated that with my
22       presentation quite clearly, that we look at it, but we
23       take in the numerical system or I will say the empirical
24       standard system, we try to link our opinion to a common
25       reference and when we say to the judge, "I think I'm
page  18
 1       right now because I was never wrong using this
 2       standard", then it's effectively what we say you can
 3       rely upon it because we are never wrong.
 4           In the non-numeric system or in the holistic
 5       approach, the sufficiency is left to the discretion of
 6       the examiner.  That entails some risk in my view,
 7       particularly because if the sufficiency is decided upon
 8       after the comparison process, then there might be a
 9       premature conviction that you are looking at the right
10       donor and if you then ask yourself is this sufficient,
11       there is a tendency that I think there is a temptation
12       to go wrong.
13           I think this is now acknowledged in the Mayfield
14       investigation and if we read out the citation of one of
15       the OIG reports that acknowledges this problem -- and I
16       hope I can find this citation -- that is from my
17       testimony, paragraph 136, the OIG you remember is the
18       Office of the Inspector General that investigated quite
19       heavily, quite thoroughly, the mistake of the Mayfield
20       case and they came with a number of recommendations and
21       one of the recommendations reads as follows:
22           "The OIG agrees with the recommendation of the
23       Latent Review Team, directed the developing more
24       objective criteria for the declaring identifications and
25       providing scientific validation for the FBI Laboratory's
page  19
 1       methods of latent fingerprint examination.  If
 2       successful these projects will address some of the
 3       issues repeatedly raised by critics of both the
 4       discipline in general and the ridgeology standard in
 5       particular.  The OIG believes that the utilisation of
 6       more objective criteria for identification, if such
 7       criteria can be developed, may provide a greater margin
 8       of safety in latent fingerprint identifications than is
 9       provided by a wholly subjective approach in which an
10       examiner's initial or gut reaction to a comparison might
11       lead him to overlook important ambiguities or
12       differences in the prints."
13           This to me, I must say that with the change to
14       non-numerics our approach was often contested.  When
15       this case occurred -- and I feel really that what the
16       OIG's findings are strengthens us in our belief that an
17       empirical approach has some bearing and that we are not
18       on the wrong way, so to say.
19           The other thing there is also critics from the
20       National Academia of Sciences that has launched a report
21       I think in February this year that have investigated all
22       types of forensic evidence and was also critical about
23       how fingerprint evidence was supported in practice and
24       it's also pointing out, I think -- and I'm not really
25       certain about the detail -- but the lack of scientific
page  20
 1       support and standards.
 2           I can elaborate on it, if you like, about what
 3       number we use --
 4   Q.  I you allow me a second I will come to that directly,
 5       but if I begin at the most simple level of this, one
 6       starts by having to recognise that there are two quite
 7       different propositions.  The first one is that a
 8       fingerprint on the finger so that the pattern on the
 9       finger is constant over life -- that is the first?
10   A.  Yes.
11   Q.  However, when one is looking at an identification by a
12       fingerprint practitioner, the true focus is not on the
13       finger because he is not looking at the finger, the true
14       focus on the impressions?
15   A.  Exactly.
16   Q.  And, this is the challenge, that the impressions, even
17       taken from the same finger, the impressions will not be
18       constant?
19   A.  Exactly.
20   Q.  So the constancy, therefore, drops out or is greatly
21       diminished when one comes to the question about evidence
22       of identity given by an examiner.
23   A.  It does not totally drop out because what we look at,
24       primarily, is the location of the Galton points and I
25       have tried to explain that even under adverse conditions
page  21
 1       these points can still be disseminated and still
 2       the relative position in location to other points will
 3       stay.  So I think that is the basis of what we do.
 4           On top of that we look at the extra detail if it is
 5       there and if I might try to make an analogy, what we do
 6       with looking at the Galton points is kind of taking the
 7       skeleton image of the fingerprint.  So if we are drawing
 8       lines here then we make a skeletal image of the
 9       fingerprint and all the minutiae points are there in the
10       fingerprint.  Many of the AFR systems do as well.
11           If I make an analogy then we could make a map of,
12       let me say, an organically grown town, not Manhattan but
13       a city that has developed over the years, and we may
14       assume that we can recognise such a city if we see a
15       satellite photo.  But if we take a map and we cut out a
16       piece of a map of London so to say and we try to
17       establish whether it is London or Paris or whatever, we
18       could try to cross it and find some similarities with
19       Berlin or Rome but if we take enough streets, we would
20       go wrong somewhere.  We may have three streets that are
21       the same but if we try to use enough streets we go
22       wrong.
23           On top of that and we could as the analogy take the
24       ridgeology part, if on top of that we would have an
25       aerial photo then we would see the trees and the
page  22
 1       bendings of the rivers and the narrowings of the streets
 2       much more accurately than in the map and that adds to --
 3       now if theres is an aerial photo you may have clouds or
 4       it may be winter or there may be small changes but still
 5       the overall picture and the overall detail will give us
 6       extra information in the comparison and I think that's
 7       the best analogy I can give.
 8   Q.  If I move on then because I am going to ask about the
 9       approach in Holland, if I understand it correctly in
10       Holland, first of all, you practice the holistic
11       approach.  You do a detailed comparison of the whole of
12       the crime scene mark; you don't just concentrate on a
13       target area?
14   A.  We have, in a way, the holistic approach, that is we
15       look at Second and Third Level Detail and use both, but
16       we apply quite rigidly, vigorously, an empirical
17       standard.
18   Q.  I am grateful to you.  It is a combination of the two.
19       The empirical standard, if I understand it correctly
20       from your evidence and from your statement, is a
21       standard of 12 characteristics required to be in
22       sequence and agreement?
23   A.  Not completely.  We have an empirical standard of 10 to
24       12, in which 12 is standard but if there is a high
25       quality image and then there is extra ridge detail, for
page  23
 1       instance a scar or Third Level Detail that is striking,
 2       like we talked about in Y7 there is this head of a bird
 3       so to say, then we can say, "Okay, this extra detail
 4       compensates to the 12", but we have to explicitly point
 5       it out what is extra and then we can go as low as 10.
 6           In a way, this is appreciating what Locard said in
 7       1916 that there is -- you can go lower if the quality is
 8       higher and we kind of appreciate that but we would not
 9       go lower than 10.
10   Q.  The fact that you don't go lower than 10 means, as you
11       have said yourself, that you recognise certain risks if
12       there are fewer than 10 points?
13   A.  Exactly.  The thing is that is sometimes mistaken, a
14       standard is not a principle thing.  It is a matter of
15       policy and a standard is used to guide process, to
16       reference to it, and to give certainty in a way.  If the
17       standard were proven to be too low, we could uplift it.
18       You could proceed your findings to the next generation.
19       You can teach people with it.  But it is quite
20       interesting that the 12 minutiae rule is kind of based
21       on gut feeling of early fingerprint experts.
22           If Locard is talking about 12 points and Galton was
23       talking about 12 points and I can say this kind of
24       intuitive things that fingerprint examiners felt that
25       the reliability started somewhere around 12 and that
page  24
 1       also the drop-off was pretty quickly below 10 and what
 2       is so interesting now is that there is recent statistic
 3       surveys that actually confirm this quite explicitly.  We
 4       have the findings of Prabhakar Pam Kanti and Jain who
 5       have done some surveys.
 6   Q.  You may actually have to help us with the spelling of
 7       the name, help me?
 8   A.  Prabhakar Pam Kanti and Jain.
 9   Q.  It is the first two.  Can you spell them for us or maybe
10       just write them --
11   A.  I will write them down later, if I am correct.  But I'm
12       pretty close I can tell you.
13   Q.  There is nothing wrong with your English, there is
14       something wrong with my ability to spell those names.
15   A.  Names are always different.
16           Then there is studies by the FSS by Mr Cedric
17       Neumann.  We are doing studies in the Netherlands with
18       statistics and what we see is quite surprisingly -- or
19       not surprisingly to me -- is that if we go below -- up
20       12 we see that the line becomes very steep and very
21       reliable.  There is actually no question about certainty
22       if we go above 20 points.  Statisticians don't even
23       investigate it any more.  It's not interesting.
24           But what Prahapka et al found out was that, first of
25       all, they stated that a survey was applicable to the
page  25
 1       latent domain and what they found was, and there was an
 2       explicit statement and it's also published in the
 3       magazine of Fingerprint World I think in 1990 or so but
 4       maybe a little bit later -- forgive me about that -- but
 5       it's published there and they said that if you were
 6       wrong with one or two points below 12 there was a
 7       dramatic drop-off of confidence and reliability and we
 8       see the same findings with any statistics, that the
 9       confidence goes and the reliability drops down
10       dramatically, not linear but dramatically, below 10 and
11       that confirms the gut feeling of fingerprint experts
12       over a 100 years.
13   Q.  As you are saying confidence level, if I understand it,
14       we have had some evidence from a Fingerprint Examiner,
15       Mr Graham, who said that one of the reasons he was
16       reluctant to use low numbers was that he is conscious of
17       the fact, first of all, that different fingerprint
18       examiners may not themselves each observe the same
19       feature.  So if you have a low number you have a risk
20       that you are working with a proportionately larger
21       number of points that cannot even be observed by all
22       examiners.  That is one possibility.
23           The second possibility is even with an observed
24       characteristic, fingerprint examiners can legitimately
25       have a difference of opinion about them and, therefore,
page  26
 1       if I understand it correctly, what you are suggesting in
 2       a sense, to use a colloquial expression, safety in
 3       numbers: the larger the number the more one compensates
 4       for these human failings, observation and interpretation
 5       and arrives at a conclusion, as you say, that overall is
 6       more reliable.
 7           Is that a fair summary?
 8   A.  Yes, that's a fair summary.  There is definitely a
 9       relationship between the height of the standard and
10       reliability but the standard is not of course making out
11       everything.  You need expertise as well, you need
12       thoroughness, care and I think it's more a culture thing
13       than anything else.  But a standard will help.
14           I must differ with the opinion of the guy you cited
15       because I think it's not a matter of eyesight.  I think
16       we all see the same thing and we find out if we do our
17       analysis independently in the procedure I just
18       prescribed we see -- and the longer you do that that
19       what experts, different experts, mark is pretty close as
20       long as they are assigning confidence levels and not
21       challenged to take anything out of the mark because if
22       there's penalty if you are wrong then we see we are
23       pretty consistent and that's actually proven by the
24       survey of Mr Lungenberg as well.
25           There is now tendency and it's also investigated by
page  27
 1       the FBI and recently by a company called Noblis, who is
 2       working for the American Government, there is now a way
 3       to marking latents up with areas of confidence and
 4       confidence levels with certain points we find and use
 5       that actually in the comparison phase and in evaluation.
 6   Q.  I am now going to turn to specifically ACE-V and I am
 7       going to ask you some limited points about analysis,
 8       comparison and then verification.
 9           You have given us a very careful summary earlier
10       when I asked you about Y7 and QI2 of an overview of your
11       system.
12           What I want to concentrate on is note-taking to
13       begin with, the most elementary part of this.  First of
14       all, in case I forget, could we start with the question
15       of the good mark where you are going to have only two
16       examiners.
17           At the initial analysis stage, does each of your two
18       examiners still take notes as part of their analysis or
19       might it be the case that they simply can reach a
20       conclusion without requiring to take notes?
21   A.  I don't want to duck the question but I have to
22       disseminate here before and after because at this moment
23       our new system is implemented, our new system AFR
24       system, or AFIS, and there is a work flow system
25       attached to it and the new procedure will be effective
page  28
 1       mid-November and I think it will be helpful if I paint
 2       that new procedure rather than go to the old procedure.
 3           What we detected in the old procedure was that if we
 4       want to applied ACE-V vigorously, then there is a flaw
 5       in it if you have a search in AFIS.  I have shown you
 6       how we search in AFIS but if we enter a fingerprint, a
 7       latent, in AFIS we would mark up the points and that's a
 8       kind of an immature analysis of the print aimed at
 9       finding the most successful cluster, we think successful
10       cluster, in finding this latent in this huge database of
11       millions of fingers.  That's kind of an art.  You
12       think -- you try to mark reliable clusters but also to
13       your knowledge peculiar so you have the highest chance
14       of finding the most likely candidate.
15           In effect, this is an immature analysis of the
16       finger.  Then if you have a search, you would look at
17       the candidate list and you walk through it and you might
18       find a probable candidate on the first place or the
19       fifth place or the thirtieth place.  If you find it on
20       the first place there is a good suggestion that you're
21       looking at the right donor and this is effectively one
22       of the analyses the OIG made that could have been one of
23       the causes they went wrong.  They relied too much on
24       AFIS.
25           We find now that if this examiner now decides that
page  29
 1       this is the one he cannot eliminate so is eligible for
 2       the comparison process, then in a way ACE-V is already
 3       corrupted because he has done two things: he has done an
 4       immature analysis and he has taken a premature decision
 5       that this is the one.
 6           We now part away from that.  In our new system, the
 7       one who searches and says this is probably one will be
 8       excluded from the rest of the procedure and then this
 9       latent will be forwarded in a totally random automated
10       process and will land on somebody's desk as an anonymous
11       latent.  He does not know in what situation this latent
12       is.  He will have to make a full analysis, whatever good
13       it is or whatever bad it is, and he will have to mark up
14       all the points.  He can make annotations and he makes a
15       full analysis of this print and only when he is done --
16       and everything will be noted.  Only when he is done then
17       the process will stop and he cannot go back.  Only then
18       he can go to the comparison phase and everything he has
19       done will be saved.  So he cannot go back and say, "I
20       thought so, that there was a mark".  No, he has to
21       mark -- finish it completely.
22           If he has done his comparison then and come to a
23       conclusion, then this conclusion will be in the machine
24       and then the machine will randomly give this same latent
25       to another examiner and he is not knowing whether he is
page  30
 1       the verifier or the first one or the second one or the
 2       third one and he will have to go through the same
 3       process and only if the conclusion is the same the
 4       identification will be effected and this is the best,
 5       the closest to blind we can do.  This is I think new.  I
 6       think we are the first one in the world to do that.
 7   Q.  First of all, just taking it at its elementary level,
 8       even with a straightforward mark your procedure will
 9       require your examiners to keep notes?
10   A.  Yes.
11   Q.  If I understand it correctly, this will be done
12       electronically?
13   A.  Yes and with the aid of images and annotations in the
14       images.
15   Q.  At the verification stage we will come back to the
16       question of blind verification.  So I will come back to
17       that later.
18           In relation to a complex mark such as Y7 or QI2,
19       first of all, would you expect your examiners to keep
20       notes of their original assessment?
21   A.  Yes, definitely.
22   Q.  Is that part of your standard working procedures?
23   A.  Yes.
24   Q.  If I work through that and remind myself of the
25       explanation you gave us at the start in dealing with Y7,
page  31
 1       do I understand you to say that a first examiner will
 2       analyse the crime scene mark, will then effect a
 3       comparison, let's say, just randomly, with Shirley
 4       McKie, would arrived at a conclusion, let's say, of
 5       identity, that then passes to a second examiner?
 6   A.  To be fair, if we would take the Y7 as an example, I
 7       take it that the first examiner would immediately have
 8       said this is one for a multiple procedure based on his
 9       first analysis and then he would back off and give it to
10       three others and he would not be the master of who is
11       going to do it.  It would be in a folder without any
12       information about the case with just two annotation
13       sheets, the image of the latent and the comparison print
14       and nothing else.
15   Q.  As you say, the first one simply decides it's a complex
16       mark to go through the special procedure and would that
17       then result in it, in a sense, going simultaneously to
18       three examiners?
19   A.  Exactly, yes.
20   Q.  Then at some stage the three examiners come together and
21       either literally or figuratively compare their notes,
22       compare their reasoning?
23   A.  Literally because one will read it out and the other two
24       will follow their own notes and say if they are in
25       disagreement they will have some points to raise.  "You
page  32
 1       said you have seen six good points, I saw only three.
 2       Let's talk about it.  You thought there was some
 3       distortion.  I missed that.  Where do you see the
 4       distortion?"  So that's the kind of discussion we see.
 5   Q.  Following on from that, before we return to some of the
 6       other details of this, when it comes to verification in
 7       ACE-V, you have indicated dealing with simple marks,
 8       straightforward marks, you see the need for something
 9       really close to a blind test?
10   A.  Yes, definitely.
11   Q.  How does the process you have just described of the
12       three examiners who meet to discuss the points, how is
13       that consistent with verification in ACE-V?  I have not
14       used the word "independent".  First of all, the most
15       elementary level: what is the purpose of the
16       verification, that is of a second or third opinion being
17       taken in relation to these matters?
18   A.  I think in general we see that in science that if the
19       outcome of a certain method or procedure is checked in
20       the same way, then we talk about reproducibility and if
21       the outcome is the same I think it's a general thing in
22       laboratories, they say, "Okay, if we have the same
23       outcome it confirms it and we can take it as solid".  As
24       long as it's taken independently and following the same
25       procedures, there's some confirmation that you can be
page  33
 1       confident the outcome is solid or reliable.
 2   Q.  Plainly, this is where independence comes in because
 3       reproducibility is all the more reliable if it is
 4       blindly arrived at, in other words completely
 5       independently arrived it.  It is a little bit less
 6       confident if one knows that reproducibility has been
 7       secured by some form of guidance or tuition?
 8   A.  Definitely, yes.  There's also a matter of culture
 9       involved and there are these hidden signs we have in any
10       social structure and we were very aware of that.  Let me
11       take some very basic example.  You are in a small world
12       of 8, 9, 10 people working together and there is always
13       some kind of status of one to the other.  So the culture
14       defines whether you are really able to oppose one or the
15       other in a certain area and say -- I always like when
16       I'm involved in such a procedure that the youngest one
17       talks against me and said, "I disagree with you".  Then
18       I smile in my head, so to say.  I like that.
19           But even if I were to give somebody a verification
20       and I will do this five minutes before the coffee,
21       that's a signal that's an easy one.  You shouldn't do
22       it.  There's no talk.  There's just simply a
23       verification.  That's it.  There are so many hidden
24       signals you have to be aware of that you should be very
25       careful with that.  Later we found out with the works of
page  34
 1       Itiel Dror -- we may come to talk about later -- that
 2       there are so many hidden signals in the real world that
 3       you have to be aware of human flaws.
 4   THE CHAIRMAN:  Could I just ask one point while I remember.
 5       Do the three experts have to agree on the same points?
 6   A.  Every single point, yes.
 7   THE CHAIRMAN:  So there will be, let us say, 10 points or
 8       12 points as the case may be on which each is agreed?
 9   A.  And they go over every single point and if they said, "I
10       disagree", that gets another colour and we move to the
11       next and he will not disagree -- he will not say it's a
12       dissimilarity but the one who is maybe missing the
13       confidence and he will say, "Well, it's an incoming
14       ridge on the edge.  I didn't see it.  I didn't mark it
15       as reliable in the analysis phase so I'm not eligible to
16       mark it now as a 100 per cent point".  So that's the way
17       we would argue, yes.
18   MR MOYNIHAN:  If I follow through on the Chairman's
19       question, let us take a hypothetical example.  Let us
20       say the maximum number observed by one examiner is 14.
21       Let us say all the examiners see 14 points.  So they are
22       comfortably over your threshold of 12.  Let us say they
23       end up arguing about a number of the points or
24       disagreeing, differing about a number of the points and,
25       in fact, ultimately they are only able to agree in
page  35
 1       common 11 points.  So the lowest common denominator is
 2       11.  Would that fail your -- sorry, I am not really
 3       thinking of 10, I'm still thinking of 12 as the number.
 4           Let us work back.  The lowest common denominator is
 5       9 so it is below your threshold of 10.  Each is still
 6       arguing that there's comfortably more than 12, they've
 7       really got different combinations and the common pool is
 8       only 9.  Would that fail by your standard?
 9   A.  That would fail, yes.  We fall to the lowest denominator
10       we may have a gut feeling it's him but one of the things
11       we have learned is that gut feelings should not rule
12       because then you effectively get a system in which the
13       conviction is leading and becomes leading in your
14       procedure.  Conviction is the last stage.  I may be
15       convinced that it's him only when I follow the whole
16       procedure properly and we try to avoid any other
17       feelings in between.  We will have these feelings, yes.
18       They can be strong feelings but they should not be
19       leading.  In any system, even in a system when we have
20       no numeric standard, we have personal standards, there
21       will be this latent that does not mean it is -- there is
22       a mark that will not meet your personal standard and you
23       may have feelings about that you are looking at the
24       proper donor but you have to follow your procedures and
25       your standards.  You cannot make this gut feeling
page  36
 1       leading because otherwise you get mistakes like
 2       Mayfield.
 3           There may be other solutions to handle that on the
 4       horizon and that may be statistics.  We may treat in the
 5       future because people say, "We now have lost valuable
 6       evidence".  The reproach we get is say in this 9-point
 7       thing people in the holistic approach said, "You have
 8       missed an identification".  I reject that because the
 9       assumption there is that they know the ground truth and
10       we don't.  It's a real case.  So the reproach is not
11       fair.
12           If they tell me, "You lose value evidence", that may
13       be because it could be the donor of the mark.  In that
14       case, if it was necessary I might go as an expert for
15       the court and I do regularly go to the court and I will
16       say, "This is the result of our investigation.  I have
17       looked at a mark.  I have seen no discrepancies.  I have
18       seen nine similarities.  It does not meet the standard
19       so I cannot tell you it's an identification but this is
20       the result but I also cannot exclude him as the donor",
21       and that's where it stops.
22   Q.  Then it would be a matter for the court to determine
23       what weight to apply to that evidence?
24   A.  Yes, exactly, but I then also would give the warning
25       sign about the reliability of the standard and the quick
page  37
 1       drop-off below 10.
 2   Q.  Have you personally given evidence in Dutch courts on
 3       the basis you have just described?
 4   A.  Yes, I do that regularly, yes.
 5   Q.  If I can ask you then specifically about the Scottish
 6       Police Services Authority (the SPSA) you are one of the
 7       international panel of experts advising the SPSA.  There
 8       are two particular points I wanted to ask you about the
 9       SPSA verification procedure.
10           The first one is I understand that the number of
11       fingerprint examiners involved differs as between an
12       elimination on the one hand and an identification on the
13       other.  The total number of experts involved in an
14       elimination is two, the total number of officers
15       involved in an identification is three.
16           First of all, am I correct in my understanding?  Am
17       I correct in my understanding?
18   A.  I don't know the latest details upon this because my
19       involvement in the Panel, we have had presentations
20       about new procedures where my latest involvement dates
21       back to a year ago or something.  It was at a pretty
22       high level.  I must say there's a lot of things that are
23       done within this overhaul of the SPSA but, in my view,
24       they have not addressed the core issue.  We may come to
25       speak to later.
page  38
 1   Q.  We will come to that as the lessons later.
 2           What I was wanting to ask you about and, please, if
 3       you have not had sufficient involvement recently and
 4       don't wish to answer this question just indicate, what I
 5       was interested in is what is the difference in principle
 6       between an elimination on the one hand and an
 7       identification on the other that would result in a
 8       different number of officers being involved?
 9   A.  I can some merit in it.  The point is that if you have
10       somebody who has legitimate access to the scene of crime
11       and you assign a fingerprint to him from a fingerprint
12       professional point of view the procedure should be the
13       same.  However, it does not lead to evidence.  So it
14       does not mean you can be sloppy but still the old
15       procedure too was sufficient to exclude somebody and I
16       can see some merit in saying, okay, that suffices now
17       and if you pay extra care, extra attention to those
18       marks that go to court for evidence, I can see some
19       merit in that.
20           If we look, for instance, at the Mayfield case, then
21       they have identified that the risk area and they say if
22       it's a single fingerprint only evidence in one case we
23       have to pay extra care.  That has nothing to do with
24       fingerprinting but the general overview of where your
25       risks are, that's risk assessment I would say.
page  39
 1   Q.  I am grateful.  The other point I wanted to ask you
 2       about is in relation to blind verification.  You have
 3       given us your evidence about what you are about to move
 4       to in Holland in November.
 5           My understanding of the evidence that we have had is
 6       that for a time the SCRO (then the Scottish Fingerprint
 7       Service, now the Scottish Police Service Authority,
 8       those generations) tried to operate a blind verification
 9       process but then on advice from one of the panel or
10       consulted persons, Mr Shearn, the Scottish Police
11       Services Authority this year abandoned the blind
12       verification process.  If I understand it correctly,
13       they abandoned it because Mr Shearn said that in a small
14       office it was unrealistic to have a practical
15       expectation that people would have no knowledge of what
16       had occurred around them before they looked at the mark.
17           Did you have any personal involvement in the
18       decision or at least any advisory role in relation to
19       the decision by the SPSA to move away from the blind
20       verification?
21   A.  I had no role in that.  I can see some merit in the
22       argument that in small communities it is difficult to
23       contain it but it does not do away with the fact that it
24       is a need for it and I think we move the other way.
25   Q.  From your own -- and this is not just looking as an
page  40
 1       outsider at SPSA, you are telling us as an insider in
 2       your own country that you see merit in blind
 3       verification?
 4   A.  Oh, yes.  We can cannot ignore the criticism there is
 5       presently on fingerprints and forensics in particular
 6       and we should not, in particular after the McKie case
 7       and after the Mayfield case, ignore the human flaws we
 8       have.
 9   Q.  If I move then on to the another point of detail just
10       following on from this.  Your own Inquiry statement, if
11       I could ask that be brought up, there are two different
12       versions of this.  If I bring up FI0117 ...
13   THE CHAIRMAN:  Do you have the passage in the statement?
14   MR MOYNIHAN:  Do you have a copy of your own statement?
15   A.  Yes.
16   Q.  It is paragraph 18 of your statement.
17   A.  Yes.
18   THE CHAIRMAN:  Would you like to read the paragraph so
19       people can follow.  (Pause)  If it helps, maybe Mr
20       Zeelenberg could read it.
21   MR MOYNIHAN:  Paragraph 18.  (Pause)
22           First of all, Mr Zeelenberg, we will just take a
23       preliminary point.  I am always criticised by the
24       Inquiry team because I fail to get people to adopt their
25       statements.  First of all, this is a statement that you
page  41
 1       yourself prepared?
 2   A.  Yes.
 3   Q.  You are accordingly content that it reflects, to your
 4       best recollection, the true position?
 5   A.  Yes.  Of course it was based upon questions forwarded to
 6       me by the Inquiry and I prefer to do that in writing
 7       rather than by telephone because I would not be able to
 8       produce the right answer at the right moment so I prefer
 9       to write it down.  But this is my statement and I
10       confirm it's mine.
11   Q.  It is the first sentence I want just to ask you about is
12       speed.  In the first sentence in paragraph 18 you say:
13           "We have to bear in mind, however, that mark Y7 is
14       not an identification but an exclusion and this
15       determination generally can be done much faster and be
16       based upon less material."
17           You did have for us a video clip showing an examiner
18       with an AFIS system quickly discarding.
19           What I want to look at just for completeness is I
20       would suggest to you that if, for example, the pattern
21       of the latent and the known are different, then
22       obviously an examiner can exclude very quickly.  So one
23       is a loop, the other is a whorl, then you would exclude
24       very quickly.
25   A.  Exactly.  I must have one precaution here because there
page  42
 1       can be pattern-like incidents in the palm once in a
 2       while and when we do this, and that's not to be
 3       presumptuous, but we have to in a way exclude that the
 4       mark is probably coming from a toe.  We have had cases
 5       where a toe mark from the large toe can be mistaken from
 6       a fingerprint.  But that's very odd cases.
 7   Q.  What I was wondering was though when one comes to a
 8       situation -- hypothetically let's take Y7 -- where the
 9       pattern, the Level 1 Detail is the same, the Level 2
10       Detail there are some points in similarity and, in
11       relation to the Rosetta characteristic, you at least
12       accept you have to give consideration to the question
13       whether it is true it's in its one mark with all the
14       features at the same fixed point or a combination of
15       marks so that one has to allow for distortion.
16           Are there cases where the exclusion might properly
17       require a considerable period of time?
18   A.  There is always the exception to the rule.  I have seen
19       marks that were accidental composites of two where it
20       was very hardly noticeable that it was a composition of
21       two fingers and there you may go wrong.  But it's always
22       the exemption to the rule, I may say, and of course you
23       will then have to look and that's why the analysis phase
24       is so important.  Then after which you will say, "Oh,
25       yes, there was something double over there, I should
page  43
 1       have seen it."  So you need some care, yes.
 2   Q.  I was just trying to get some balance that you are not
 3       suggesting that every exclusion can necessarily be done
 4       very speedily.  There are some exclusions --
 5   A.  Not always but you have seen how quick it is done on a
 6       daily basis.  I think that, to be fair, if you have a
 7       murder case -- and I'm old school, I was still working
 8       manual searching and also doing the paperwork.  In
 9       murder cases, you have a pile of people with legitimate
10       access or people who are maybe pointed out to be
11       reviewed and then you would go over it with your glasses
12       and say "no, no, no, no, no" and then of course you
13       would do it again, but it's that quick it can be.  But
14       if you have a piece of a palm-print, it might take you
15       hours to do it.
16   Q.  This is just outwith this stream of other points I have
17       been asking you before I am able to return to more
18       mainstream points.  I wanted to ask you about Third
19       Level Detail.  You have obviously given evidence on your
20       presentation about Third Level Detail specifically in
21       relation to QI2 but, first of all, I wanted to ask you
22       as a matter of generality is Third Level Detail alone
23       capable of giving a unique match?
24   A.  I think it is appreciated throughout the profession that
25       Third Level Detail can only be studied in conjunction
page  44
 1       with Second Level Detail.  You must know where you are
 2       looking and then it gives confirmation if it is the
 3       same.  The problem with Third Level Detail is that, yes,
 4       sometimes it gives you this "Aha, oh that's what I'm
 5       looking for.  I showed you the very good print with the
 6       small detail and the upwards pointing finger" and that's
 7       like you recognise an island in the ocean.  Yes, that's
 8       that island.
 9           But the problem with Third Level Detail is -- and
10       that is where in the Mayfield case people also went
11       wrong -- when they thought they were looking at a right
12       print, then they inserted the Third Level Detail as
13       being the same as well.  So it is a tricky business.
14       The point is it might lead to a picking attitude, that
15       you embrace everything that is the same and ignore
16       everything that is different and that's the danger of
17       it.  You hate it and you love it.  That's the problem.
18       When you see it, it can give you a boost of confidence
19       this is just what I'm looking at and it's very powerful,
20       but it can also be deceiving.
21   Q.  First of all, if I understand it correctly then you
22       would use Third Level Detail, as you say, as a factor in
23       assessing your confidence in relation to the second
24       level patterns that you are observing?
25   A.  The point is you can almost not disseminate.  If you
page  45
 1       look at a line and you see this line moving like this,
 2       like a riverbed, you cannot help noting it when you do
 3       your analysis.  But you cannot write all these things
 4       down.  It would be impossible.  It's almost intuitive.
 5       But you can say I see a nice quality over here and I
 6       would love to find it back and if you find it back on
 7       the same location and it is having the same -- it's
 8       never exactly the same, but if you have the same kind of
 9       rhythm in what you see, then you would say, "Hey, that's
10       nice.  I would love to find it over there" but, again,
11       you have to be careful.
12   Q.  Third Level Detail might therefore be a factor that
13       would lead in an individual case in an identification
14       being made on 10 points rather than it requiring the
15       full 12?
16   A.  Oh, yes.  In our situation we would use it all over the
17       analysis and it would be counted as extra if we have a
18       ten point thing and we will find extra detail that gives
19       confidence, yes.  I always make these kind remarks and
20       then because it's kind of informal "this one I like".
21       Those excitations mark will be in my annotations.
22   Q.  I want to move then back to the mainstream discussion
23       about Y7 and QI2 and the generality of fingerprint
24       practice.  I picked up next two paragraphs in your
25       statement.  I do not know if the computer is with us
page  46
 1       yet.  What we have is an alternative version FI0115,
 2       page 4.  I think the explanation is there are two copies
 3       at least available to me.  One had cross-references
 4       inserted and this is one without the cross-references
 5       but we will not trouble about that.  So this is an
 6       excerpt from your statement.  In paragraph 16 you say,
 7       dealing with competency:
 8           "As with competency, it's not an option to balance
 9       numbers of opinions from different experts in doing so
10       shifting the truth towards the middle.  All experts
11       involved in this case agree at least about one thing.
12       Of the two sides of the debate, they cannot both be
13       right: either Shirley McKie is the donor of Y7 or she is
14       not."
15           On a similar theme, if I bring up paragraph 19 you
16       say:
17           "The assumption (and for some this is a convenient
18       assumption) that the truth is in the middle is not only
19       unsupported by the principles of fingerprinting but it
20       is also creating a very dangerous precedent.  If this
21       mistake is not acknowledged, it will create a hide-out
22       for future mistakes either honest or dishonest ones."
23           What I want to do is to look at this.  First of all,
24       in the earlier passage in paragraph 16 what you are in
25       effect saying is that there is no middle ground so far
page  47
 1       as Y7 is concerned.  One body of experts has to be
 2       right, the other body of experts has to be wrong and
 3       that's at least something on which all the experts
 4       agree?
 5   A.  Yes, that's definitely so, yes.
 6   Q.  I do not, in fact, want to devote too much time to Y7 in
 7       relation to that.  What I want to do is look at the
 8       perhaps, if I understand it correctly, broader
 9       paragraph 19 because I want to look more generally at
10       fingerprints.
11           Do you accept that there will be exceptions to the
12       rule, there will be examples of fingerprints where there
13       is a middle ground where there will be a legitimate
14       difference of opinion among fingerprint examiners in
15       relation to an identification?
16   A.  Yes, there will be in general but that will then apply
17       to the matter of sufficiency.  One says it is
18       sufficient, another would say it's insufficient.  But if
19       we agree that there is sufficient material to study,
20       then there is no way that you can say that we cannot say
21       that this one is excluded or not.
22   Q.  There is at least scope for difference of opinion and,
23       indeed, returning to one of my earlier points, that's
24       why you set the numerical threshold of 12 to guard
25       against that risk?
page  48
 1   A.  Yes, but then in that case and, as I said before court,
 2       I think I then have the obligation to review to the
 3       court that I've studied the print and that I've seen the
 4       similarities but they were not sufficient to our
 5       standard.
 6   Q.  Can I ask you then to reflect on this.  From your own
 7       perspective, for the reasons you have indicated, what
 8       reaction would you have to a fingerprint expert in the
 9       United Kingdom, not just in Scotland, saying that he
10       could have 100 per cent certainty in his opinion at, let
11       us say, eight or nine points in sequence and agreement
12       with no unexplained differences?  Do you have a
13       difficulty about evidence being presented to court on
14       that number of points to the degree of 100 per cent
15       certainty?
16   A.  I have to disseminate here between the opinion and the
17       100 per cent.  If he says, "It's my opinion.  I'm
18       convinced of what I am seeing.  I am convinced of my
19       right", well, if he expresses that way I can live with
20       it but 100 per cent and the words "infallible" I'd
21       rather avoid.  If I would go to court with that I'd say,
22       please check it, please go to somebody else and if it's
23       not confirmed, because that's the nature of
24       reproducibility.
25           If I go to court and say to a judge, "I think this
page  49
 1       is an identification", I have to do that in the
 2       expectation that any other expert using the same
 3       methodology can and will come to the same conclusion and
 4       if I don't have that expectation, I should not report
 5       it.
 6   Q.  Do you, as part of your own thinking process, think in
 7       terms of 100 per cent certainty or do you think more
 8       freely that you have sufficient confidence in your own
 9       judgment when you're giving evidence?  Do you follow the
10       distinction?
11   A.  I think that I cannot do it another way than be
12       convinced for myself of what I have done and when I've
13       checked it and double checked it and been honest in my
14       analysis that the opinion I give is honest and in my
15       view also certain, yes.
16           What gives me confidence that makes it more than my
17       opinion is my reference to a common historical and
18       shared standard.  That uplifts my personal opinion to
19       something I share with others.  That's the nature of a
20       standard.  But I will never use the word "infallible"
21       and if somebody will challenge my evidence I'd say,
22       please, let somebody else look at it because I'm only
23       human.
24   Q.  Would you accordingly avoid making a categorical
25       statement that you were 100 per cent certain?
page  50
 1   A.  I think I'm still inclined to give a discreet opinion
 2       and say, yes, I think this is the donor.  I cannot do it
 3       any other way.  I think fingerprints allow for that
 4       opinion but it is an informed opinion and it is kind of
 5       a scientific debate whether you are allowed to give
 6       these discreet opinions or not but I believe that we can
 7       have firm -- deliver firm opinions on fingerprints in
 8       principle, yes.
 9   Q.  Just to finish this -- and that would be an appropriate
10       point to adjourn, sir -- it returns to one of the
11       questions I asked you about your ability and the fact
12       you have gone to court in Holland where you have been
13       unable to meet your standard but you can nonetheless
14       give evidence with warnings to the court.  I understand
15       that in Scotland Fingerprint Officers think in terms of
16       only two sort of levels: zero and 100 per cent.  That is
17       they will give evidence if they are 100 per cent
18       certain.  If they are not 100 per cent certain they will
19       give no evidence at all in relation to a fingerprint.  I
20       understand that you -- leaving aside the 100 per cent
21       we'll discuss that -- in practice would give an
22       intermediate position in evidence where you would say to
23       the court, "I have made these observations.  I'm not
24       saying that I can meet my standard, in other words, I'm
25       not saying I can identify uniquely but at least I can
page  51
 1       see certain similarities", you'd explain them and leave
 2       it to the court to decide what to do?
 3   A.  The point is that in the early days I think we did kind
 4       of the same, also we have to see that as a quality
 5       measure.  It is good to have a kind of dustbin that you
 6       say, "This one I discard.  It's not good enough.  I put
 7       it aside".  That is kind of a quality measure and it had
 8       its merits but nowadays -- and we won't volunteer in
 9       every case -- but nowadays we cannot uphold that if
10       there's a fingerprint with four or five minutiae we have
11       studied for hours maybe that we cannot disclose that to
12       the court.  We cannot do that any longer.
13           So if required, not in every case, but if required
14       in important cases and we are asked what we did with the
15       evidence I think it's only fair that we disclose
16       everything we've done.
17   MR MOYNIHAN:  Sir, that would be a point to --
18   THE CHAIRMAN:  Yes.
19           Just on that last point you would disclose it
20       because it could be of assistance to the defence as much
21       as to the prosecution.
22   A.  Also, yes.  It goes both ways.
23   THE CHAIRMAN:  Thank you very much.  We will stop now until
24       11.50.
25   (11.30 am)
page  52
 1                         (A short break)
 2   (11.54 am)
 3   MR MOYNIHAN:  Mr Zeelenberg, before I continue that general
 4       conversation we were having, the computer has chosen to
 5       work but we are not guaranteeing that it is reproducible
 6       so we might as well use it just now.
 7           I was asking you about your slide 104 and if I bring
 8       up -- because what I want to do is just look at the
 9       fingerprints of Marion Ross as relied on by Mr Swann.
10       So if I bring up on the right-hand side your slide 104
11       and on the left-hand side I will bring up what I
12       understand to be the corresponding image in Mr Swann's
13       chartings.
14   A.  May I correct you?
15   Q.  Yes, please.
16   A.  You said Marion Ross.
17   Q.  Sorry, I apologise.  Ms McKie.  You are quite correct.
18       So Ms McKie on the right-hand side.  I am going to bring
19       up what I understand to be the corresponding charting by
20       Mr Swann in his chart D.
21           Before I enlarge it, is this the corresponding
22       image, the one on the left?
23   A.  Yes, it is, yes.
24   Q.  First of all, if I bring it up and highlight it, do we
25       see that Mr Swann has not marked on his image the pink
page  53
 1       feature which you say is the Rosetta feature?
 2   A.  That is true.  As far as I recall, I could not find any
 3       of the images with the upper portion on the right side
 4       also indicating the Rosetta characteristics.
 5           As far as I recall, I have copied it from the page
 6       before that and meticulously copied the Rosetta
 7       characteristic in here and the text underneath reads
 8       something like, "According to Mr Swann ..."
 9   Q.  This was one of the points I wanted to take, first of
10       all, what you are indicating is you are not aware of a
11       single image on which Mr Swann has charted both the
12       features which are in the top right corner of Ms McKie's
13       print and the Rosetta characteristic.  You are not aware
14       of him having done that on one image?
15   A.  As far as my recollection goes, no.  I primarily used
16       the images as presented to Justice 1 but I think the
17       charts are effectively the same, as far as I could
18       retrieve them from the Inquiry website.
19   Q.  If I can, therefore, show on the Justice 1 charting,
20       which is the one on the left, TS0003, if I bring up Y7,
21       we will see the features which he has highlighted on
22       Ms McKie's fingerprint do not come near the Rosetta
23       characteristic on Y7?
24   A.  That's true, yes.
25   Q.  Therefore, if I come back the page that you are
page  54
 1       indicating, if on the left I could bring up, please,
 2       TS0003.009.
 3           Perhaps I will just leave it to you, Mr Zeelenberg,
 4       to tell me of these four sets of image which one is it
 5       that you used to determine the position of the Rosetta
 6       characteristic which you then put on your slide 104?
 7   A.  That is I think right below indicating chart 3, the
 8       panorama chart.
 9   Q.  So if I highlight that one, this is the image that you
10       used to try to identify the corresponding feature?
11   A.  Yes.
12   Q.  I will highlight yet again, so that we see on the
13       impression the feature which Mr Swann has identified as
14       the Rosetta characteristic?
15   A.  Correct, yes.
16   Q.  Can you explain then how it is that you have arrived at
17       your pink spot?
18   A.  I have just transferred it and counting the ridges and
19       made a relation, for instance, to these points over here
20       (indicated) which we find over here, I think.  This
21       handshake here (indicated) and the handshake here and
22       then -- sorry, no, I think I'm confused now.
23           I think I counted ridges from --
24   Q.  What I can do is I will return to your slide and you can
25       perhaps indicate for us -- you can enlarge this as
page  55
 1       you please.
 2   A.  I took the position from this fingerprint and I tried to
 3       meticulously copy it into my characteristic here.  The
 4       orientation is that there is one other -- an ending
 5       ridge here (indicated) that's the one upwards here and
 6       if you go down there is the Rosetta and I tried to
 7       looked at all the other minutiae and I think it is the
 8       correct position, I still believe that to be.
 9   Q.  I am grateful.  Because we have now, with all of this on
10       our Trial Director system, the ability to mark the
11       particular features.  If I understand correctly, the
12       feature that you have used to orientate yourself to find
13       the position of the Rosetta characteristic is at the
14       ridge ending the tip of the pen is pointing to on the
15       left-hand image (indicated)?
16   A.  Yes, this one here.  (Indicated)
17   Q.  I am grateful to you.  I will leave you to be the pilot.
18       The arrow for the left-hand image you have just
19       indicated and the corresponding position on the right?
20   A.  Yes.  So I think this is the Rosetta (indicated) and if
21       we go 1, 2, 3 up then we also here 1, 2, 3 up, yes,
22       upcoming ending ridge.  I think I also went down --
23   Q.  Mr Zeelenberg, sorry, before we have the narrative, if
24       you could then identify for us on the right-hand image
25       the corresponding ending ridge?
page  56
 1   A.  I think it's over there (indicated).
 2   Q.  What we can do, again, because the marked Y7 for the
 3       moment does not matter, if I simply enlarge the McKie
 4       print from your slide 104, that will perhaps give you a
 5       better ability to mark the ridge ending that you are
 6       talking about.
 7   A.  Yes.  This is the one and this is the one up here
 8       (indicated).  It's slightly differently orientated.  I
 9       also looked I think at this upcoming feature here
10       (indicated).
11   Q.  I was going to say just take your time so that you can
12       identify the features that you used to work out where
13       the Rosetta characteristic was.  Take your time to work
14       it out and then mark it just with the arrows on the
15       chart.
16   A.  It is this one and then we go up 1, 2, 3, 4, 5, 6, 7, 9,
17       10, 11.  That is -- sorry.
18   Q.  To avoid that happening again, for a selected deletion
19       it's the red cross at the bottom.  So if you could make
20       the markings for us again.
21   A.  This one (indicated) is the very prominent upcoming
22       bifurcation.  I think we find that over here.  I have to
23       be careful because the orientation is different.  Then
24       from thereon we can count upwards 1, 2, 3, 4, 5, 6, 7,
25       8, 9, 10, 11.  1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 there
page  57
 1       it is.  Sorry, this one is Rosetta and there it is.  To
 2       confirm it, there is this one over here, this one over
 3       here.  (Indicated)
 4   Q.  Before we lose it, if I stop and save it before we lose
 5       it again.
 6   A.  And of course what we see here --
 7   Q.  Mr Zeelenberg, if you just give me a second we will save
 8       this image before we lose your handiwork.
 9   MISS BAHRAMI:  That's FI0810.01.
10   MR MOYNIHAN:  Sorry, you were saying --
11   A.  That is why I was confused at the beginning.  This is
12       what we would call the deviated break and I was mistaken
13       but this was less clear but it's the one over here
14       (indicated).
15   Q.  That is what Mr Wertheim refers to as the handshake?
16   A.  Yes.
17   Q.  That may finish that point of detail.
18           We will return to the conversation we were having
19       earlier on and continue it.  Before I continue that
20       conversation, if I just backtrack a little just for
21       clarification.
22           We have come to use three different terms when we
23       have been looking at the manner in which you work in
24       your office.  One is an exclusion, the other is an
25       elimination and the third is identification.
page  58
 1   A.  (Nodded)
 2   Q.  If I understand it correctly, an exclusion is the term
 3       you would use where you have concluded that there is no
 4       match between the known and the latent?
 5   A.  Exactly, yes.
 6   Q.  So there's a mismatch.  So you exclude it as a mismatch?
 7   A.  Yes.
 8   Q.  Elimination is a term that you would use where there is
 9       a match; is that correct?
10   A.  Well, I'm always confused by the word elimination
11       because I would use it differently in the Dutch
12       language.  Here it is used to eliminate somebody from an
13       investigation by identifying them and we would say he is
14       eliminated as a possible donor.  So it always generating
15       some confusion.  But we would say it is identified to
16       somebody with legitimate access.
17   Q.  So it is an identification?
18   A.  Yes.
19   Q.  The word "elimination" is used, if at all correctly, it
20       is used simply to say that that person is or that print
21       is being eliminated from the inquiry because it's been
22       found to have an innocent source?
23   A.  Yes.
24   Q.  Do you as a matter of practice apply different standards
25       to what we would call an elimination as compared with
page  59
 1       the identification of a suspect?
 2   A.  No.
 3   Q.  Can you explain why not?
 4   A.  Well, because in some stage of the investigation, an
 5       elimination on somebody with legitimate access can also
 6       become evidence and in the stage we are doing our work
 7       we have no knowledge of what the relationship is between
 8       the person that is named or come up, pulled up as a
 9       search and the investigation.  We know very little about
10       the investigation.
11   Q.  At one level today's person eliminated might be
12       tomorrow's suspect?
13   A.  Exactly.  I can make there one exception.  If we would,
14       for instance, have a murder case and we would have a lot
15       of latents and I would find one and let's say I have a
16       number of points that would be the same as the deceased,
17       then for just practical purposes we would say we put
18       this aside because we can assign this to come from the
19       deceased and from nobody else.  But it would be a
20       practical matter.
21   THE CHAIRMAN:  I am not sure that I follow that.  How would
22       you, to use our expression, eliminate the deceased?
23       Would they be examined in as much detail or just done
24       quickly?
25   A.  Let's assume that you have a deceased in the house and
page  60
 1       you find of course latents of this deceased person all
 2       over the place and you would now have a latent with,
 3       say, eight or nine points that are the same with the
 4       deceased.  It has no merit to say we cannot make the
 5       conclusion and then search this fingerprint forever in
 6       the database and compare it with other possible
 7       suspects.  It's just a practical issue to put it aside.
 8   MR MOYNIHAN:  What I want to do then is move the
 9       conversation on now.  We have talked about ACE-V.  We
10       have in fact talked about fallibility.  I want to move
11       on now to look more closely at the psychological factors
12       that are in play.  My tool or my reference point for
13       that is an article by Dr Dror and others, D-R-O-R, I
14       have provided you with a copy.  I think for others in
15       the hall, at least for participants, there may be a copy
16       and we will have to put it up on the screen so that
17       members of the public can see -- sorry, the Dror article
18       is FI1008A.
19           This is actually an article in which you are
20       mentioned in the acknowledgement as having assisted?
21   A.  Yes.
22   Q.  Are you familiar enough, Mr Zeelenberg, with this
23       article?
24   A.  Yes, I'm familiar with it.  I think that I'm in contact
25       with Mr Dror for a number of years already.  I don't
page  61
 1       know how it came about but we invited him to give a
 2       presentation in our office upon these matters because
 3       we're very interested in it and then following our
 4       discussions he asked me to review some of his work and
 5       he acknowledged me for doing this.
 6   Q.  If I could put Dr Dror's article just to the side and
 7       also bring back up your own statement which I think is
 8       accessible as FI0115, I am going to ask you to turn to
 9       paragraph 72.
10           Paragraph 72, if I highlight that, is it correct
11       that you are talking of the psychological influences?
12       What you are saying is:
13           "It is also important to know that once an expert
14       has taken a position on analysis of a mark, it is very
15       difficult for that expert to change his mind.  That is
16       especially so if there is a confirmation of a match, for
17       an expert to then say he has been incorrect in his
18       analysis.  This is a feature of human nature.  But it is
19       not impossible and there are a number of examples of
20       experts who have admitted their mistakes and only a few
21       kept their stance against all odds."
22           Do you accept, would you, it is consistent with the
23       more general work of Dr Dror that there are some
24       psychological traits at work here and that some people,
25       once they have reached a conclusion, will tend
page  62
 1       thereafter when challenged to seek to confirm their
 2       original conclusion rather than backtrack and admit a
 3       mistake?
 4   A.  Yes, I think that that comes just as a general
 5       observation I had years ago when writing a book.  I
 6       wasn't talking about bias, not even knowing the word but
 7       I think it's human nature if we have made a decision it
 8       is very difficult to track back.  But if the importance
 9       of the decision rises and even for an expert it becomes
10       almost very, very difficult to say, "I was wrong".  I
11       think many experts were trained that if you ever make a
12       mistake your career is over and you may wake up at night
13       and maybe you have dreamt that you have made a mistake
14       and be sweating and waking up.  That's a bit of the old
15       culture but also I think an element of human nature that
16       you don't want to make this mistake and that can, so far
17       as that it happened in the United States, that a man
18       called Scott Speart had made a mistaken identification
19       and then committed suicide.  So that is the ultimate one
20       of the extremes.
21           If we go to the other, that we look at the Mayfield
22       case where people, people of the FBI made a mistake,
23       acknowledged experts, and they were able to acknowledge
24       their mistake and learn from it and from that they have
25       regained their integrity and their self esteem and I've
page  63
 1       always said in my organisation occasionally we had
 2       someone who made a mistake and they came to me almost
 3       crying and I said, "Well, you should feel very awkward.
 4       You should take more care but, believe me, from this day
 5       onward you are a better expert because now you know that
 6       you can go wrong.  You are awareness will be risen".
 7   Q.  There are a number of themes I will pick up from that
 8       when it ultimately comes to lessons, I want to ask you
 9       about this idea that someone who admits an error may in
10       fact be, as a result, under such pressure, as you have
11       said in one rare case, very tragically, to feel the need
12       to commit suicide.  That is something I want to come to
13       later.
14           First of all, we start, as you say, from human
15       nature that in any discipline, lawyers as well, there's
16       a human trait, human nature, that if you have reached a
17       decision there's perhaps an inclination to defend that
18       decision rather than admit a mistake.  That's human
19       nature.
20   A.  That is human nature and I don't have studied this but
21       just for general observation because I'm interested in
22       these aspects of life but I think you see that in
23       particular in medicine that doctors have this air of we
24       never make mistakes.  I use that in our training class,
25       the new fingerprint experts, and I have the slide with
page  64
 1       two hospitals and the one has a big sign, "We make no
 2       mistakes", and the other says, "We're only human", and I
 3       ask them which hospital do you want to be in and the
 4       choice is obvious.
 5           So I think we are inclined to accept the fallibility
 6       of human beings and I myself am the first to present
 7       myself as fallible and then say, okay, what instruments
 8       do we have to overcome these fallibilities, these
 9       weaknesses.
10   Q.  So in addition to the fact of this human nature that we
11       have seen about admitting mistakes, some of the
12       psychologists speak of something called confirmatory
13       bias?
14   A.  Confirmation bias.  A good starting point would be a
15       kind of an essay of Dr Raymond Nickerson who has written
16       an essay about confirmation bias, "Ubiquitous phenomenon
17       in many guises".  That's an awkward word and I'm only
18       able to pronounce it and that's a very leaning thing
19       that he's almost making an inventory of all the types of
20       biases in the studies done and confirmation bias is one
21       of them.
22   Q.  I think the word you are finding difficult to pronounce
23       is, there's a restaurant near by here called Ubiquitous.
24       I think for digestive reasons I can actually say it a
25       little bit easier.
page  65
 1           With confirmation bias, of course people in relation
 2       to a dispute, people, each wing of the dispute, those
 3       who identify and those who dispute, can each suffer from
 4       the risk of confirmation bias.
 5   A.  Oh yes, definitely, yes.
 6   Q.  In relation to Dr Dror's article that is on the screen,
 7       if I can take away your own statement now and just
 8       concentrate on Dr Dror, I will summarise it and, please,
 9       correct me if I am wrong.  Dr Dror carried out a very
10       special experiment.  He took five Fingerprint Officers;
11       he took some identifications that they had made positive
12       matches they had found five years earlier; he brought
13       them back to those experts in a blind test.  On this
14       occasion, he gave the experts false information.  He
15       told them that this pair of fingerprints they were
16       looking at were the fingerprints from Brandon Mayfield
17       so, in other words, fed them the wrong information
18       because they weren't the Mayfield prints at all and also
19       fed them information that led them to start from the
20       premise that there was a mismatch but a close mismatch.
21           What he found was that of the five experts only one
22       stuck to his guns and confirmed his original
23       identification.  The other four, misled by the
24       contextual information, changed their opinion and indeed
25       some of those four went to the complete opposite extreme
page  66
 1       and said it's a positive mismatch.  It's not just
 2       inconclusive; it's a positive mismatch.
 3           Is that correct?
 4   A.  Yes, I think that's almost correct.  There are some
 5       remarks to be made here.  Of course I don't deny the
 6       fact.  We are talking not about confirmation bias but
 7       contextual bias.  The influence of the context.  The
 8       thing is that the samples are pretty small and the good
 9       news is they all switched to the safe side.  So when the
10       pressure came on, then they were looking for safety.
11       That's the first remark I would like to make.
12           The other thing is that I'm talking about the
13       gravity standard, that there is an inclination by
14       experts that if the importance of the case rises to
15       lower the standards.  That's generally that they say,
16       "We go a step further because this is an important
17       case", and I've called this the gravity standard in the
18       works of Interpol.  And that's generally not understood
19       but just by giving it a name it is recognised, so what
20       we see here is the opposite effect.
21           One other remark to be made is that the Mayfield
22       mark is particularly very poor and there are a few
23       defences against its contextual bias.  First is a proper
24       analysis.  That's exactly what the FBI is now doing.  On
25       the files of the OIG, they have now to make a proper
page  67
 1       analysis and then decide first whether there is enough
 2       information before they go a step further.  So that's a
 3       change in the procedure.
 4           The other thing is in our system I have studied
 5       these latent, the Mayfield latent, as it is called,
 6       myself, personally, when Mayfield was not even known and
 7       I have looked at all of the marks and this one I
 8       discarded as an unfit for identification.  So this is
 9       definitely a borderline one where the influences of
10       context and confirmation can become much larger than
11       with other prints.
12   Q.  If I take you to the fourth page of the text, page 77 of
13       the journal, this is just used as a convenient source
14       for some broader points.
15   THE CHAIRMAN:  The system is having a temperamental morning.
16   MR MOYNIHAN:  Yes.
17           I am going to begin by looking at some passages I
18       have just highlighted with yellow.  Dr Dror says:
19           "Our results also do not reflect or reveal
20       practitioners' errors whereby experts' negligence,
21       carelessness and personal fault, intentional or not,
22       produce erroneous identification.  Such causes are often
23       used to deflect deeper scrutiny and discussion."
24           He says:
25           "Rather, it seems that our findings of inconsistent
page  68
 1       identification decisions may reflect cognitive flaws and
 2       limitations in conducting objective and independent
 3       processing and evaluation of the information."
 4           Then the part that becomes more important for me, he
 5       says:
 6           "It is important to note that such problems arise
 7       mainly in the more difficult and challenging cases, such
 8       as with latent fingerprints collected at crime scenes
 9       that are distorted, partially missing, and contaminated.
10       In such cases subjectivity is more pronounced."
11           Would you recognise in relation to Y7 and QI2 that
12       we are dealing with such a case, where we are dealing
13       with latent fingerprints that are potentially to be
14       viewed as distorted, partly missing and contaminated,
15       are these factors which would make it challenging and,
16       therefore, cases where we would recognise that
17       subjectivity of the exercise is more pronounced?
18   A.  Generally, I totally agree what is said here and I just
19       said already that in our system it was a bad print and
20       that influenced the outcome of this exercise in this
21       essay, I think, because the quality of the latent was
22       very much a factor in all this.
23           I have to think what I want to say about this.  What
24       was the question again?
25   Q.  Really what I was driving at was whether one can move
page  69
 1       away -- because I am not really wanting to talk about
 2       Brandon Mayfield -- to recognise here themes that
 3       Dr Dror is identifying that have some relevance to
 4       understanding the handling of Y7 and QI2.  Let us make
 5       an assumption so the context of what I am asking you is
 6       now clear.  Let us proceed on the assumption that you
 7       are correct that there's a mis-identification in
 8       relation to each of Y7 and QI2.  What I am trying to
 9       understand, looking at Dr Dror's paper, is how such an
10       error could have been made.  The theme I am running here
11       is that there are psychological factors that one must at
12       least recognise as playing a part, one of which is that
13       when dealing with complex marks such as Y7 and QI2 the
14       subjectivity of the exercise is more pronounced?
15   A.  In general, yes, the subjectivity is definitely a factor
16       and that is why it is so very important to do an
17       objective analysis.  Dr Dror is also pointing to that.
18           I'm hesitant to say in relation to this survey
19       whether this also in this case applies for Y7 and QI2.
20       I would like to disseminate between the two.  I've
21       always said from Y7 that I believe that it started as an
22       honest mistake and I think I've pointed out some of the
23       probable causes of it.  That is the elimination mode
24       with less significance, the stepping stone of some
25       similar minutiae, maybe hastiness, some sloppiness, I
page  70
 1       don't know what, and maybe the fact it is reported
 2       to somebody else prematurely without proper
 3       verification.  So there is some psychology there but I
 4       think there are cultural aspects.
 5           If people say Y7 started as an honest mistake I'm
 6       happy to accept that.  If you then go one step further
 7       and say can you uphold it when you're alerted
 8       to somebody says there is something wrong or somebody
 9       says she is denying it's her fingerprint, I think then
10       you cannot go back to psychology -- this type of
11       psychological factors because all of what Mr Dror is
12       here is painting is in a state of unawareness.  People
13       are not aware of contextual bias when they are doing it.
14       In that fact, Mr Dror says always bias generates honest
15       mistakes because you're not aware that you're biased.
16       Once you are aware that you are influenced by a context
17       you can take measures.  So it's a little bit
18       complicated.  That once you are alerted to a problem,
19       then other methods arise because you think you're in the
20       status of peer review.  You really have to check
21       everything and I cannot attribute what is going on with
22       Y7 to these factors.  I think there are other
23       psychological factors that I'm not knowledgeable enough
24       to tell you.
25           I'm puzzled by it.  I'm really puzzled why experts
page  71
 1       who have done this 30/40 years are robbed from their
 2       most basic perceptive skills and that they cannot see
 3       what's wrong with this print.  There must be other
 4       factors.
 5   Q.  Can I put this then, because this was the prelude to
 6       looking at this a little bit more carefully: in your own
 7       statement (FI0115) and looking to paragraph 35 and 39,
 8       if I give you the context, in paragraph 24 you start
 9       talking about the Tulliallan meeting.  I am going to
10       take you to a section where you deal with Tulliallan.
11       24 is Tulliallan.  If I move on then to paragraphs 35 to
12       39, so we need to bring up the next page as well.
13           In paragraph 35 you confess in hindsight that you
14       were perhaps naive when you went into the Tulliallan
15       meeting.
16   A.  Yes.
17   Q.  Again, if one can understand from papers, to be neutral
18       about this, the people who acceded to the joint meeting
19       at Tulliallan had the hope that they might be able to
20       facilitate a debate between experts on the two sides, to
21       find some common ground and produce agreement and an
22       explanation for the difference of opinion.  That was the
23       hope.  The naive position is that, in hindsight, you
24       recognise that that was not likely to be achieved.
25           Is that a fair view?
page  72
 1   A.  Yes.  I must say when we were having the session with
 2       HMIC, which I was invited to do, we talked to HMIC and I
 3       found it very unfortunate what was happening.  You see a
 4       running train; you see a disaster develop.  There are no
 5       winners.  The profession will suffer; the people who
 6       have made a mistake will suffer; that was so very
 7       obvious that I said, "The only way we can resolve this,
 8       I think, is that we talk from expert to expert and sit
 9       next to each other and say, 'Do you see this' and 'Do
10       you see this', and that and that, and on an expert
11       level, feet on the table, relaxed atmosphere, would be
12       able to reverse them in their wrong.  That was the only
13       possibility I thought then practically -- and that was I
14       suggested to HMIC let's do that.
15           When I came to Scotland, I was of the impression
16       that that was what was going to happen and I was quite
17       surprised to see that the whole setup was totally
18       different.  There were many people around, the
19       Procurator Fiscal, there were lawyers from the union and
20       it was more like a presentation rather than anything
21       else.  That was certainly not what I intended.
22           I may also have judged the whole situation wrongly.
23       I was not well-informed but at that moment I found out
24       that I think they were already suspended, there was kind
25       of an investigation going on.  So I think I was naive in
page  73
 1       assuming that the point of no return was yet achieved.
 2       But I think the point of no return was already gone.
 3           But to elaborate on it -- and I would like to avoid
 4       any exchanges that are relative to character
 5       assassination or whatever, I would like to avoid it --
 6       but my sole intention was to get this whole problem out
 7       of the world as soon as possible and it is not
 8       impossible because the fingerprint experts from the FBI
 9       have admitted that they made a mistake and Steve Meager
10       later told me for the FBI it has been a blessing in
11       disguise because there has been a gigantic overhaul in
12       procedures but in particular in culture.  So that has
13       been very important.
14           But my appeal was and my sole intention was to
15       reverse the problem before it was too late and if you
16       see somebody, as an analogy, running to a cliff and you
17       see him going and you may assume that he thinks he can
18       fly or he can swim or can make the dive and survive
19       would you warn him?  Would you warn him as a
20       knowledgeable guy seeing that it goes wrong?  And that
21       was my only intention.
22   Q.  Mr Zeelenberg, I will come to that just quite
23       separately.  I take entirely what you say.  In
24       paragraph 36 you have said you were trying to stop the
25       running train.  In paragraph 39 you tell us that, in
page  74
 1       fact, you only learned when you arrived at Tulliallan
 2       that the relaxed atmosphere that you thought would be
 3       conducive to a proper discussion was, in fact, replaced
 4       by something quite different and you mention possible
 5       misconduct of SCRO staff.
 6           If I put in what I understand the background to be
 7       now, with hindsight, the meeting took place on 15th
 8       August 2000?
 9   A.  Yes.
10   Q.  On 26th June 2000, Mr McKie had made an allegation of
11       criminal conduct, perjury, against the four officers.
12       If you accept that from me?
13   A.  Yes, I'll accept that, yes.
14   Q.  Perjury could be about the most serious charge levelled
15       against any expert witness, yes?
16   A.  Could be, yes.
17   Q.  That on 6th July the Crown Office (that's the
18       prosecution authority in Scotland) appointed a fiscal,
19       Mr Gilchrist, to investigate that complaint.
20       Mr Gilchrist fairly shortly thereafter took on board
21       Mr Mackay and his police team.  So there was a police
22       team and a fiscal charged with investigating a complaint
23       of perjury.
24           On 3rd August 2000 the four officers primarily
25       involved were suspended.  They had wanted and, indeed,
page  75
 1       their colleagues who attended (Mr Mackenzie and
 2       Mr Dunbar) had wanted, all six of them, to be there to
 3       have this discussion with you.  Four of them were
 4       debarred from attending the meeting because the
 5       prosecution authorities were concerned that they should
 6       not incriminate themselves.
 7           When you arrived on 15th August there were
 8       prosecutors in the room, what one might associate as
 9       defence lawyers, that is the union lawyers present and,
10       indeed, after the meeting some of these Fingerprint
11       Officers were interviewed by the police.
12   A.  Yes.
13   Q.  So it was the very opposite of a relaxed atmosphere.
14   A.  Yes, definitely, yes, yes.
15   Q.  You would accept that human nature being what it is,
16       entirely innocently, it is not the right atmosphere to
17       expect people to admit or at least even to face up to a
18       mistake because to face up to a mistake here might, in
19       fact, be to open either themselves or even perhaps as
20       bad for them their very close colleagues to a
21       prosecution.  Yes?
22   A.  I accept that and I was not aware of all these factors
23       but I would also like to say that to date, still to date
24       they can gain back their integrity by admitting that it
25       is a mistake because now they go down to history as it
page  76
 1       is.
 2   Q.  This is where I touch on -- and, please, forgive me I'm
 3       making no allegations against you at all in relation to
 4       that meeting -- at the meeting you fairly accept and,
 5       indeed, the telephone call afterwards, you fairly accept
 6       that what Mr Mackenzie and Mr Dunbar say that you said,
 7       you said things along those lines.  If I understand it
 8       correctly, your position is you were not motivated by
 9       any desire to threaten them.  Is that correct?
10   A.  How could I threaten them?  With what could I threaten
11       them in any way?  I had no power whatsoever, and
12       actually when I said, "Please, Robert, reverse yourself
13       you know what's going to happen.  Everything is at
14       stake, maybe your health, your family, everything,
15       everything is at stake", and Robert replied to the
16       effect something like, "Don't you think that this has
17       gone through my head the last month".  So he confirmed
18       what I said and if -- I don't want to look around now
19       but if what we see around us is family members and I
20       don't claim to clairvoyancy, nor wisdom in hindsight,
21       but what has happened since is only confirming what I
22       feared to go and happen then.
23   Q.  This is slightly out of sequence but if I take you on to
24       paragraph 52 of your statement that you have written for
25       the Inquiry, when you are dealing with the telephone
page  77
 1       call with Mr Dunbar which you quote from, you say that
 2       what you said to Mr Dunbar is:
 3           "If this presentation as delivered at Tulliallan but
 4       also to the Association of Chief Police Officers of
 5       Scotland were to be used to convince people of authority
 6       that the opinion of SCRO is correct, then this is the
 7       closest to malpractice I have ever seen."
 8           So you acknowledge saying that?
 9   A.  Yes, yes.
10   Q.  What you then say is, taking matters now to today:
11           "I remain of that opinion.  In fact, having
12       considered it subsequently and with my knowledge of the
13       mis-identification of QI2, I have no doubt that the
14       matter was positively misrepresented to those present
15       and the images were prepared knowing that there was a
16       mis-identification by SCRO."
17   A.  Yes.
18   Q.  That is extremely strong.
19   A.  That's extremely strong.  I realise that.  But I think I
20       have shown in my presentation that -- first of all, I
21       put it in context.  If you do such an exercise on the
22       kitchen table I don't mind but here is a very serious
23       matter that somebody can be put away in gaol or was
24       threatened to put away in gaol and now you are
25       justifying that and you do an exercise in which you
page  78
 1       deliberately misrepresent the evidence because it in no
 2       way it can be possible that Shirley McKie, because that
 3       was the implication that Mr Mackenzie has, and he has
 4       said it to the Board of Directors of SCRO and to the
 5       ACPOS and to us, the implication was that she put her
 6       finger fives times over there and somebody else the tip
 7       or it wasn't her finger.  And not only me but also
 8       Mr Rudrud were very upset to find that out later.  It
 9       was absolutely -- the borderline between bad practice
10       and malpractice is that you know what you are doing and
11       there are clear signs in the whole exercise that things
12       were deliberately concealed.  I have no doubt about that
13       and I know it's a strong statement but what is done here
14       I think that everybody, every expert that looks at it,
15       is really, really, really upset.
16   Q.  What I am just suggesting to you is that one explanation
17       for this would be, to use the exaggerated phrases
18       deliberately, the utterly extraordinary pressure that
19       was being brought to bear on the SCRO Fingerprint
20       Officers, even by Tulliallan, they were then the target
21       of a concerted media campaign with four of them
22       suspended, four of them under investigation for an
23       extremely serious crime that could have resulted in
24       imprisonment, could you not accept that in a discipline
25       which is subject to psychological pressure, that that
page  79
 1       utterly extraordinary personal pressure brought to bear
 2       on these individuals could cause them innocently --
 3       innocently -- to be subject to what we have been
 4       discussing of confirmation bias and they have always
 5       been convinced, honestly convinced, of the
 6       identification of Ms McKie -- you accept they might have
 7       honestly been of that opinion at the beginning -- they
 8       have always been convinced and all that has happened is
 9       that the pressure that has been brought to bear has
10       tended to make them reinforce that conclusion as opposed
11       to being free in a relaxed atmosphere to stand back and
12       start again?
13   A.  I appreciate but I am not an expert on it -- I
14       appreciate that pressure can do a lot of strange things
15       to people and I'm also aware that people are able to
16       rationalise things to the extreme.  We've got the flat
17       earth society and you can fly them with a rocket round
18       the earth and they come out and say the earth is still
19       flat.  That can happen to people.  I just recently
20       learned that an expression for that is cognitive
21       dissonance.  You have two irreconcilable ideas in your
22       head and the consequences of accepting one is so big
23       that you cannot accept it and push everything away.
24           But in that state as we were with so many alerts I
25       cannot accept that a reasonable expert is not able to
page  80
 1       see it and at the very moment that in his presentation
 2       he is concealing things and leaving things out, I cannot
 3       accept that that is the result of any psychological
 4       effect.  They must have known what they did.
 5   Q.  The phrase you used of cognitive dissonance is a phrase
 6       which, as I understand it, really means this: people
 7       when they have made a mistake, the phrase that we would
 8       use would be if they've dug themselves into a hole
 9       instead of climbing out they just keep digging?
10   A.  Yes.
11   Q.  That's what cognitive dissonance is?
12   A.  But the point is that the reason -- my interpretation of
13       it that the very reason that you keep digging is that
14       deep down there you know you're wrong, otherwise you can
15       stop digging.
16   Q.  I will leave it at this because all I was going to
17       suggest was, on the hypothesis that you are correct
18       about the mis-identification, I was suggesting to you
19       that it is possible there is an innocent explanation in
20       the psychological factors that we have been discussing
21       to explain why the officers would, even today, not
22       acknowledge their mistake?
23   A.  Yes, that they persist in their position now I can
24       accept that it is the state we are in, yes.  I have to
25       simply accept that.
page  81
 1   Q.  Let us leave it there because one could carry the
 2       discussion on but I will leave it there and then turn to
 3       the final, sort of, chapter in relation to this
 4       particular matter and that is to look at lessons that
 5       might be learned.
 6           Again, in order to discuss lessons, one must have a
 7       hypothesis.  The only hypothesis I am now proceeding
 8       with is you are correct that a mis-identification was
 9       made with, let us assume the extreme, between Y7 and
10       QI2.  The extreme is that the mistake was made in both.
11           You have said in the evidence that you have given
12       that you would trust that lessons could be learned but
13       what we have not actually touched upon is what the
14       lessons are.
15           First of all, having listened to you and the careful
16       explanation you gave of your own country's move in
17       November of this year to the blind test and the
18       paperwork that you have indicated, is that based on your
19       country's consideration of not only Brandon Mayfield but
20       also the McKie case?
21   A.  Not only that, I think that the awareness of human
22       fallibility has always played an important factor in our
23       procedures from very early days and in the book I wrote
24       about fingerprints -- it's unfortunately in Dutch so I
25       don't think you can read it -- but a lot of attention is
page  82
 1       already paid to that aspect, not using the words we use
 2       now.
 3           But, yes, I think that the things that came after
 4       that like Mayfield, but there have been other errors
 5       also by Scotland Yard and other police forces that only
 6       have confirmed us in our opinion but also in our
 7       commitment to design better procedures but not only
 8       that, to pay a lot of attention to culture.
 9   Q.  We will come to culture and, again, if I could just ask
10       you the final reference in your statement FI0115 that I
11       wanted to pick up is paragraph 211.  I'm sorry, because
12       it is not paginated I cannot have a page reference.  It
13       is paragraph 211.
14           I think you are going through a number of lessons or
15       a number of comments and in paragraph 211 you say:
16           "If not, the only lesson learnt will be that if you
17       make a mistake, keep denying it and cover it up, you
18       will get away with it."
19           Would you accept, Mr Zeelenberg, that that is a
20       touch unfair, given that of the six officers primarily
21       involved, five have lost their jobs and the sixth is
22       fighting -- we'll not touch on the merits of it because
23       it is coming up in court some time soon -- is fighting
24       for reinstatement.  So six of them have suffered very
25       severe professional detriment as a result of adhering to
page  83
 1       their denial of a mistake?
 2   A.  I will not do away any of the pain people have suffered.
 3       I realise the pain they go through and that was one of
 4       my main worries in 2000.
 5           First of all, I have to say this was an internal
 6       memo to Mr Mulhern, as a member of the panel, opposing
 7       the position Mulhern had taken not to disclose and not
 8       to investigate the error.  We had to look ahead and I
 9       opposed that very, very strongly because you cannot
10       become an excellent organisation if you have the biggest
11       mistake in the history of fingerprint on your doorstep
12       and you choose to neglect if.
13           Even Mr Roger Shearn in his first analysis and his
14       interviews he did in the organisation, came back and
15       said, "We have to open up Y7.  We have to study it and
16       we have to learn from it", and from the very first day I
17       have said, acknowledge the mistake, learn from it and
18       move on.  But the fact of what Mulhern said is we only
19       want to move on and then you have learned the wrong
20       things because in this organisation there are still
21       people that uphold that they were right and the rest of
22       the world is wrong and I have tried to paint all the
23       negative factors that would have in this organisation
24       until to date and I won't go over it all but you can
25       read it for yourself.  But in principle it was an
page  84
 1       internal memo but by rereading it I think I still uphold
 2       everything I said there is valid.
 3   Q.  So far as the suggestions that come through in your
 4       statement, one was that images of Y7 and QI2 of let's
 5       shall we say verified authenticity should be released to
 6       the fingerprint profession for a debate.
 7           Would you accept that that is, in fact, not going to
 8       bring a conclusion because there will still be those
 9       individuals, however many doesn't matter, within the
10       fingerprint community who will argue in the debate that
11       Y7 and QI2 were correctly identified?
12   A.  I accept that those people who have taken the position
13       and are in the position that they are now may be unable
14       to convert themselves but the underlying thought is that
15       all the others that are affected by the culture within
16       SCRO and now SPSA, because they are still dominating the
17       discussion, can turn for the better and the other
18       underlying very principal issue to me is that the
19       science should rule, the science and nothing else.
20           We are not a puppy of the police.  What upset me in
21       the past was the police management has decided that
22       fingerprint experts should not address this issue,
23       should not investigate Y7 and that is wrong.
24   Q.  In the predicament that we now are 12 years on, you
25       would accept that the only way now to clear the air to
page  85
 1       start would be for the Chairman to reach a conclusion,
 2       an official conclusion, in relation to the identity of
 3       Y7 and QI2.  That is the first point.
 4   A.  Yes.
 5   Q.  The second would be, so far as the Chairman is able to
 6       do so, to reach some determination as to the cause of
 7       the mistake, again this is all on the hypothesis a
 8       mistake was made.  Yes?
 9   A.  Yes.
10   Q.  Going beyond that, trying to look at the lessons that
11       SPSA can derive, and what I am now primarily thinking of
12       is on this hypothesis that we've got this far in the
13       argument, what recommendations one should be looking at.
14           You have mentioned the culture within SPSA.  What do
15       you mean by the culture within SPSA that is the subject
16       of criticism by you just now?
17   A.  If we look at the letter that was written at a certain
18       moment in time, a public letter I think signed by 52
19       people, that kind of saw Mr McKie as the general enemy
20       and phrases in there I will not repeat, I don't
21       recollect them, give a picture of a kind of social
22       structure of people that act like an herd, flock.  The
23       whole outside world is against them and even people who
24       have not seen the mark also agreed with all those people
25       that signed and inevitably if this dot is not resolved,
page  86
 1       they will continue to see the outside world as, I would
 2       say, the enemy rather than to go inside and do some
 3       self-searching what happened.
 4           On the very moment these people are able to realise
 5       that it is an enormous mistake, then only the learning
 6       process can start and now that's what I mean.  The
 7       reverse is learned, they still think that they were
 8       right and all of the other people are just their
 9       enemies.  So if you don't accept the diagnosis of what
10       is going on and if you don't accept the diagnosis of
11       your doctor you won't take the pills.  It's as easy as
12       that.
13   Q.  Would you also accept that one thing that may assist
14       these individuals would be to take the pressure off them
15       so that the concerted media attack that is making these
16       individuals behave in a defensive ring manner is lifted
17       from them.
18           Would that assist?
19   A.  I've got a little bit of problem with campaign and media
20       attack.  You cannot avoid these things to be reported in
21       the media.  If you perceive that as an attack or a
22       campaign, I'm also accused of being in the McKie camp.
23       Now, let me say this: I'm not Mr McKie's puppy, I'm not
24       His Master's Voice, not whatsoever.  I sympathise with
25       the victims of the mistake, yes, and I feel obliged to,
page  87
 1       in the name of fingerprints, if they have nobody else to
 2       assist them and I didn't solicit for this function but I
 3       was chosen by HMIC.  But I will not back down because
 4       otherwise they have no-one to turn to.  But it's this
 5       brotherhood of the police that says you shall not go
 6       against other police officers.  I'm one of the few that
 7       is able to do it or maybe allowed to do it by our police
 8       force but I'm not in a popularity contest.  I realise
 9       that very well.
10   Q.  Let us then move to some positive aspects of this.
11       Again, reflecting on the fingerprint cases you have
12       mentioned, would it be your considered view that
13       consideration should be given to proper note-taking --
14       electronically or on paper doesn't matter -- of each
15       stage of the assessment and comparison exercise?  Is
16       that a necessary precaution for you?
17   A.  If I just might move back once to the other question and
18       just state this statement to say if only the SCRO (the
19       SPSA) had taken a similar position that was taken by the
20       FBI in the Mayfield case, because they had egg on their
21       face, there was a media campaign, if they just had taken
22       the same position and the same measures, the whole thing
23       would have been over long ago.  It's so easy to do.
24   Q.  But, again, being positive about it, note-taking you
25       would say is essential?
page  88
 1   A.  Yes, definitely I think that and that's the way also the
 2       FBI has moved since if you read the OIG report and it's
 3       actually effective now.  There are many presentations.
 4       Recently I was in the II conferences in Tampa, Florida.
 5       They gave presentations about their new procedures and
 6       note-taking is definitely one of them.  Also SWGFAST is
 7       moving in that direction.  We had a ruling of a judge
 8       recently in the United States who said, "Okay, you talk
 9       about ACE-V.  Show me your notes of your analysis.
10       Where are they?  How real is that analysis?  So show
11       me."  So we have to go to the substance, yes.  But as a
12       measure, as a tool in your box to withstand any type of
13       bias, the analysis and the note-taking is of such
14       importance I cannot stress it enough.
15   Q.  The other positive, based on your own country's
16       consideration of this, do you commend blind
17       verification?
18   A.  I think in general in science that is one of the most
19       important issues.  Everybody is kind of a way struggling
20       what blind exactly entails.  What is blind?  How do you
21       do it?  Can you take all the information from the case?
22       Does that serve the investigation?  But I think the way
23       we are going to execute it from November onwards is as
24       blind as it can be because in the process I painted, we
25       can also inject kind of lookalikes or mimic cases.  So
page  89
 1       that would help the process definitely.
 2           There may be still a learning effect.  We may still
 3       make mistakes in the future because the process is not
 4       fully crystallised because we've just started in
 5       November.
 6   Q.  Do you accept, again moving beyond that, the American
 7       Academy of Sciences, the thrust of their conclusions,
 8       that there is also a need for a more scientific input
 9       into, for example, as you yourself have shown in your
10       presentation, study of the positive effects of
11       distortion so that it's not simply left to a fingerprint
12       expert saying, "In my experience this is possible or
13       that is possible", that it's actually scientific input
14       into the tolerances of distortion?
15   A.  Yes, definitely.  I think that is why I brought up Alice
16       Maceo from Las Vegas who is doing a lot of work in that
17       already.  Yes, I would enterminate(sic) any kind of
18       investigation on that subject.  We cannot know enough.
19       I have already said that there is a kind of -- I have to
20       be careful here.  There's a kind of a group of experts
21       that come to the inner conviction that it's him and then
22       have a rucksack full of excuses why it is not looking
23       why it should look and that's definitely the wrong way
24       round.
25   Q.  I am conscious just of the time.  My last question is an
page  90
 1       open timescale so you may wish to either answer it now
 2       or take time to reflect.  What I was wanting to know is
 3       beyond what we have just covered in the last few
 4       minutes, what other lessons would you suggest to the
 5       Chairman should be learned, again on the assumption that
 6       you are correct as we are proceeding in relation to the
 7       mis-identification of Y7 and QI2?
 8   A.  I think just open the case up; let science rule the
 9       science; pay attention to culture; take hierarchy out,
10       and that's easy to say and difficult to do.
11   Q.  Take hierarchy out?
12   A.  Hierarchy out.  Just changing the culture may take
13       years.
14   MR MOYNIHAN:  That would finish my questions.  I am very
15       grateful to Mr Zeelenberg.
16   THE CHAIRMAN:  Obviously it is now lunchtime.  Mr Holmes,
17       you have questions to ask I understand?
18   MR HOLMES:  I will have an application to make, sir, yes.
19   THE CHAIRMAN:  We will resume then at 1.50 but, before we
20       do, can I just say it is not to do with your evidence
21       but we had rather hoped that we would have Mr Swann and
22       Mr Leadbetter next week but unfortunately that has not
23       proved possible because Mr Russell is not available.  In
24       a sense, it is fortuitous because I think after a fairly
25       intense period of expert evidence I would like a short
page  91
 1       pause to reflect on some of it, so we will not sit next
 2       week on Tuesday and Wednesday but we will resume on
 3       Thursday.  We will rise now until 1.50.
 4   (1.03 pm)
 5                      (Luncheon Adjournment)
 6   (1.50 pm)
 7                ARIE JACOB ZEELENBERG (continued)
 8   THE CHAIRMAN:  I understand that Mr Smith may have an
 9       application now.
10   MR SMITH:  I did suggest that Mr Moynihan earlier but over
11       lunch I have decided not to make an application.
12       Obviously, if anything in particular was to arise from
13       Mr Holmes' questioning I may wish to revisit that but at
14       this stage I don't wish to ask any questions.
15   THE CHAIRMAN:  Mr Holmes, your application then.
16   MR HOLMES:  Yes, sir.  There are quite a number of things to
17       cover with Mr Zeelenberg but they all flow from one
18       source which is his Inquiry statement.  I would like to
19       ask him to clarify a number of things he said within the
20       statement.  That is the only source of any questions I
21       have for him.
22   THE CHAIRMAN:  So it is really expanding on matters that are
23       in the statement?
24   MR HOLMES:  That is correct, sir, yes.
25   THE CHAIRMAN:  Certainly if you feel the statement has not
page  92
 1       covered it sufficiently, then I will give you leave to
 2       do that.
 3                   Cross-examined by MR HOLMES
 4   Q.  Mr Zeelenberg, do you have a copy of your statement
 5       available to you?
 6   A.  Yes, I have.
 7   Q.  In paragraph 8 of your statement you say that you
 8       believe --
 9   MR MOYNIHAN:  Sorry, if we bring it up, it is FI0115 -- for
10       the public, sorry.
11   MR HOLMES:  In paragraph 8 of your statement you say that
12       you:
13           "... believe that there was a concerted effort to
14       discourage and discredit anyone within the fingerprint
15       community in the UK who opposes SCRO or even wants an
16       open and free evaluation of the marks ..."
17           By whom?
18   A.  What do you mean "by whom"?
19   Q.  You say that you believe that there was a concerted
20       effort to discourage and discredit anyone who opposes
21       SCRO.  I am asking on whose part this effort has been
22       made.
23   A.  If it's concerted effort I think it implies many people
24       do that.  I can give you some examples of what indicates
25       it was a concerted effort.  The study and discussion of
page  93
 1       the print was systematically blocked and discouraged by
 2       everybody involved.  The Internet material was
 3       discredited and if you would use it you were mentioned
 4       in the public domain by police management, you were
 5       addressed as incompetent.
 6           I look at the treatment of the early contradicters
 7       from the Lothian & Borders Police.  They are never heard
 8       of since.  I've spoken to, on some locations (sic), of
 9       one of them.  If I look at the treatment that Gary
10       Dempster received.  He stood up to be counted.  I see
11       that people who wanted to sign our petition were
12       threatened or were not wanting or unable to sign openly.
13       I see how Mr Dave Charlton is treated in the public
14       domain.  He wanted some discussion about the
15       fingerprint.  He was then an editor of the Fingerprint
16       World Society issue.
17           I have my own contacts with the Scottish staff.  If
18       I am in the UK and I meet a lot of fingerprint Experts
19       in the UK I just see that no-one, really no-one, is
20       prepared to talk about this fingerprint.  They just fear
21       to raise the matter at any time.  I think the management
22       has been very effective in that.
23           The police management was airing untenable positions
24       outside their knowledge domain.  We see police chief
25       coming to the public domain and saying you cannot say
page  94
 1       this and they are talking about fingerprints and they
 2       uphold terrible positions suggesting that the
 3       fingerprint -- that there is difference of opinion
 4       within fingerprint experts and they even went against
 5       their own experts in that.  Their experts said we are --
 6       one of us is right or wrong and the police chiefs came
 7       and said, well, you know, experts differ.
 8           So there is so much.  There's a court ruling that
 9       Shirley McKie was innocent and she was acquitted and
10       people went openly against it.  There's so, so much that
11       was telling you that everybody that went against anybody
12       who was in the public domain.  Even when I assisted
13       Mr Dror and he acknowledged me he later told me just for
14       the fact that he mentioned my names he received hate
15       mails.  I think that's -- I leave it to that.
16   Q.  Are you aware of the evidence of Mr Graham to this
17       Inquiry?
18   A.  I have not seen it, no.
19   Q.  I will not ask you about that then.
20           You are aware that Mr Swann and Mr Leadbetter have
21       been subjected to disciplinary proceedings over the
22       preceding few years, are you not?
23   A.  I am not aware of that, no.
24   Q.  You are not aware of that.  Again, I will not ask you
25       about that.
page  95
 1           You will be aware that there has been significant
 2       publicity, both in the news media and on the Internet,
 3       about this case.  Are you aware of that?
 4   A.  Yes, of course.
 5   Q.  You will be aware that a great deal of that is negative
 6       as regards my clients; is that correct?
 7   A.  I don't know whether it's about your clients.  I don't
 8       know -- of course, I visit CLpex.  Once in a while
 9       discouraged just to go there by the level of exchanges
10       there but I really don't know whether it really affects
11       your clients or the acts they have done.
12   Q.  So the pressure that you are aware of is to discourage
13       and discredit people who oppose the SCRO view but you
14       are not aware of any pressure in the other direction.
15           Is that your evidence?
16   A.  I won't say I'm not aware of it but there may be some
17       level of exchange.  I can only say I've never engaged in
18       it.
19   Q.  The following paragraph of your statement, if I can move
20       on to that, please, states that the question of whether
21       Shirley McKie is the donor of Y7 has been answered by
22       the official bodies that dealt with it and the
23       fingerprint community at large.
24           Does this mean that you fail to see the need for the
25       present proceedings?
page  96
 1   A.  No, I've always been an advocate for these proceedings
 2       and that's also why I'm here.  But if you refer to where
 3       this comes from, I think HMIC has investigated it, the
 4       Minister for Justice came to Parliament, we have
 5       other -- Justice 1 has received it.  I think Mr Mulhern
 6       accepted that it was a mistake.  The International
 7       Association for Identification has investigated it now
 8       and I have met numerous, numerous, numerous experts who
 9       have seen it and I wonder, I really wonder what's going
10       on in Scotland and, if I may say so, they regard the
11       profession in Scotland as the laughing stock of the rest
12       of the world.
13   Q.  You mentioned the IAI investigation in the following
14       paragraph of your statement.
15           Are you able to say whose complaint the IAI
16       investigated?
17   A.  I'm not in a position to say that.  I may have my -- I
18       may think that I may know where it's coming from but I'm
19       not sure.
20   Q.  If you are not certain then, please, there is no need to
21       answer.
22           Do you know who was on the committee that did
23       investigate Y7?
24   A.  No, I don't know.  Sorry, I know that Mr Bob Garrett was
25       involved but I don't think he really examined the
page  97
 1       fingerprint himself.
 2   Q.  And you don't know who did?
 3   A.  Sorry?
 4   Q.  You don't know who did.
 5   A.  I don't -- seriously, I don't know anyone.
 6   Q.  Paragraph 13 of your statement says that:
 7           "The question about whether or not the
 8       identification of the marks is correct cannot be
 9       resolved by weighing the competency or character of the
10       experts involved."
11           You must concede, though, Mr Zeelenberg, that in
12       order to gain anything from opinion evidence the
13       competency of the expert speaking to that opinion must
14       be established?
15   A.  Well, to a certain extent but I think I basically
16       disagree.  If we look at the mistakes that were made in
17       the past by the FBI, by New Scotland Yard, by SCRO and
18       by others their competency was never questioned.  So
19       that cannot be the measure of it.
20   Q.  So competency is not relevant to deciding --
21   A.  I don't say competency is not relevant.  It is
22       irrelevant to come to a decision whether it's a mistake
23       or not.  I have presented the evidence.  That's why I'm
24       here and it has to be based on the evidence.  That's my
25       position.
page  98
 1   Q.  I am sorry, my original question was: is it relevant, in
 2       your view, to establish the competency of an expert
 3       before that expert can then go on to give his opinion in
 4       proceedings such as this?
 5   A.  In general terms, yes.
 6   Q.  So the issue of competency must, to some extent, be
 7       relevant as to whether an error was made, must it not?
 8   A.  I don't think that competency in itself is relevant to
 9       the measure.  I think the only thing you can do is look
10       at the evidence presented and look at the underlying
11       factors and that must be decisive whether it is a
12       mistake or not.
13   Q.  If you won't accept that when there are grounds for
14       challenging the competency of an expert witness that it
15       is relevant to do so, will you accept that where there
16       are grounds for challenging the credibility of an expert
17       witness, for whatever reason, it is legitimate to do so
18       before considering their opinion?
19   A.  Well, I don't think it's very helpful and if I look back
20       at ten years now and the attempts are made to discredit
21       people I don't think they've never been helpful in any
22       way.  If I look at a list the credibility of Mr Ashbaugh
23       is not questioned, David Grieve has given evidence.  He
24       is one of the icons of modern fingerprinting.  If you
25       look at Steve Meager, if you look at Pat Wertheim, there
page  99
 1       is so many, Professor Andre Moenssens, Glenn Langenburg
 2       from the University of Minnesota, how long must the list
 3       be until you accept that those people are on the side
 4       that say it is a mistake.
 5           So I even say now not their competency is the
 6       measure whether we are right or wrong, it has to be the
 7       evidence that is presented in the past and here.
 8   Q.  Paragraph 14 of your statement says that even the best
 9       experts have made mistakes so competency is not a good
10       instrument with which to decide a fingerprint matter.
11           Surely, Mr Zeelenberg, it cannot be wholly
12       irrelevant if a witness is stating a position and there
13       are grounds to question that witness' competency for
14       whatever reason, that must be a relevant consideration,
15       must it not?
16   A.  I have just explained my position I think and I don't
17       have anything to add.
18   Q.  You go on to explain your position further in
19       paragraph 15 of your statement.  You say that:
20           "If there is a matter of competency, the litmus test
21       is mark Y7 itself.  If one is unable to assess that this
22       mark is not identical to the print of Shirley McKie,
23       then either competency or otherwise, serious causes must
24       be taken into account."
25           Is that to say that the test for competency is
page 100
 1       whether the expert in question agrees with your
 2       assessment of Y7?
 3   A.  Not necessarily.  I say we have a fingerprint in front
 4       of us and every independent assessment of this came to
 5       the same conclusion, that it is not identical to the
 6       fingerprint of Shirley McKie.  If we want to measure any
 7       type of competency, then if somebody is unable to see
 8       all the differences then he has a serious problem.
 9   Q.  So if somebody does not agree with your stated view of
10       Y7 then they are not a competent expert?
11   A.  I am not asking you to agree with my conclusion.  I'm
12       asking you to look at my evidence and all the
13       discrepancies there are between the fingerprints and I
14       contest that I think everybody that has looked at it can
15       see what I'm saying.
16   Q.  What you are saying in that paragraph is that the litmus
17       test for competency is the assessment of mark Y7 itself.
18       Is that not tantamount to saying that any expert that
19       does not agree with your assessment of Y7 is not a
20       competent expert?
21   A.  I'm not saying that.  I'm not agreeing with my
22       assessment.  I'm asking you to look at the fingerprint
23       and the fingerprint is telling everything there is and
24       there is no competent expert in the world that I know of
25       that disagrees with this position.
page 101
 1   Q.  Paragraph 18 of your statement, you go on to say that:
 2           "If there is a difference between the mark and the
 3       inked print" -- and you are talking about the
 4       fingerprints in general here I think rather than Y7
 5       itself -- "if there is a difference between the mark and
 6       the inked print, usually that immediately points to
 7       there being no match between the two."
 8           Are you saying that in any case where there is a
 9       difference that there cannot be an identification?
10   A.  No, there is the word "usually" in between.
11   Q.  So differences do exist that can be explained then?
12   A.  Yes.  There are -- we already went over it.  A deposit
13       of a fingerprint is never the same when it is repeated.
14   Q.  So you do accept that differences or distortion due to
15       movement and due to multiple touches can affect the
16       appearance of a crime scene mark; is that correct?
17   A.  That's definitely correct but then you in your analysis
18       phase you would see signs of this depositions and these
19       distortions.
20   Q.  I will move on to paragraph 22 of your statement,
21       please.  That says that the Scottish authorities refusal
22       to apologise as the FBI apparently did in the Mayfield
23       case has created an atmosphere of spoil.
24           What is it that you mean by that?
25   A.  What we see is that officially the Minister for
page 102
 1       Justice has admitted that a mistake was made, the head
 2       of the SPSA has admitted that a mistake was made, but
 3       yet again the peoples in the organisation just continue
 4       to say that it's definitely Shirley McKie's print, they
 5       don't investigate the murder of Asbury any further
 6       because I think he is a suspect and that keeps the
 7       debate ongoing.  That the problem.
 8   Q.  The next chapter of your evidence refers to the
 9       Tulliallan meeting and I know my learned friend,
10       Mr Moynihan, has asked you a couple of questions about
11       this, but your statement does make reference to it.
12           Paragraph 32 of your statement says that you were
13       invited by HMIC to serve as an independent expert on a
14       committee of three to investigate Y7 and that you
15       concluded that it was not that of Shirley McKie.
16           Who were the other two on that committee?
17   A.  One was Torger Rudrud and the third one was Mervin
18       Valentine from the Greater Manchester Police.  When I
19       was invited by telephone I was told that it was going to
20       be a committee of three and I was a bit surprised when I
21       came to HMIC that Mr Mervin Valentine chose the position
22       not to take part in the committee.  It's only years
23       later that I understood that he probably feared to be in
24       the position to be an expert contradicting some of his
25       fellow experts.  I think that is the main reason.
page 103
 1   Q.  Having been employed by a Government agency to look at
 2       Y7, did you not feel at all conflicted when you then
 3       went on to act for Miss McKie herself during her civil
 4       claim against the Scottish Ministers?
 5   A.  Not at all.  Not at all.  I think that if I see that a
 6       mistake is made and if I look at the Code of Ethics from
 7       the NSVI and other bodies, then you have an obligation
 8       as an expert that if you see there is a miscarriage of
 9       justice going on that you also have to take up the act
10       and I am an expert in fingerprinting and this profession
11       is quite dominated by the police and people who are
12       suffering from a mistake or whatever you call it, a
13       probable mistake, they have a hard time finding an
14       independent expert and I think it's improper for experts
15       to just to choose the side of the police and just help
16       also these people in the interests of justice.
17           I take it a step further, if I may, I have intimated
18       under the umbrella of ENSVI to erect an arbitrage body
19       that will enable people to address to us and if they
20       think a mistake is made we offer them an independent
21       consult, free from the best experts we can find in
22       Europe and that is one of the reasons and that is going
23       to be effected probably.  The proposals are ready.
24       We're looking for funding and I think we all have the
25       obligations.  We only serve one goal: that is the truth
page 104
 1       and my profession.
 2   Q.  At the meeting in Tulliallan did you accept that you
 3       could not exclude the possibility that Y7 came about as
 4       the result of a multiple touch?
 5   A.  Initially, I thought and I said in my presentation that
 6       I was puzzled by the appearance of Y7.  I could not
 7       exclude that it was a double tap but, having further
 8       investigated it, and I have presented the evidence as
 9       what I say we can never be 100 per cent certain, but I
10       think the explanation I have given for the phenomena we
11       see I think are pretty, pretty well and now I think if
12       in difference with Tulliallan, where I was still in
13       doubt, I'm pretty sure how the fingerprint is laid down.
14   Q.  On your initial assessment of it then, do you agree that
15       you first perceived it to be a complex mark?
16   A.  I don't think I've said it was a complex mark.  I think
17       I said it was of low quality.
18   Q.  Surely it's not just the quality of the mark that led
19       you to the conclusion that it could be a double touch
20       though, is it?
21   A.  No.  As I've said in my presentation, the appearance is
22       in a way confusing because you have areas that have a
23       different structure, are darker and the structure of the
24       lines seemed different.  So I have said the properties
25       are indeed misleading but until you find an explanation
page 105
 1       for all the phenomena I think then I'd be satisfied what
 2       has happened.
 3   Q.  I am going to deal with the conversation that you had
 4       with Mr Mackenzie and Mr Dunbar during the break at
 5       Tulliallan.
 6           You have said in paragraph 42 of your statement that
 7       you said to Mr Mackenzie and to Mr Dunbar that
 8       everything was at stake for them, their professional
 9       reputation and career, their pension and their health
10       and their families.
11           What caused you to think that the consequences at
12       that stage were liable to be so grave for them?
13   A.  Well, I think that is simple common sense.  I know from
14       experts that they fear -- what they fear the most is to
15       be caught on a mistake and if that comes in the public
16       domain, I gave you the example from this fingerprint
17       expert that took his own life and I've seen the stress
18       and I must say I feared what was going to happen and I
19       stress, again, I pitied them.  I knew Robert long before
20       that and I said, "Please, Robert turn around because
21       this is not going well, everything is at stake for you",
22       and Robert confirmed it at that very moment.  He said,
23       "Don't you think that this has gone through my mind the
24       last month or so".  So where am I wrong?
25           I think again if we see what has happened after
page 106
 1       that, I don't think I was far off.
 2   Q.  Did you ask them if they knew what the consequences were
 3       for them and tell them that you did know what the
 4       consequences would be for them?
 5   A.  I couldn't know what the consequences would be but I
 6       could -- well, just as a human being you could see what
 7       was going to happen.  It was --
 8   Q.  So did you say that you did know what the consequences
 9       were?
10   A.  No, just as -- just common sense tells you there's a
11       running train, it doesn't stop, things go wrong.  The
12       pity is, apart from -- and I've always said everybody
13       involved suffers, everybody on the left side and on the
14       right side, everybody is suffering and the only way to
15       stop it is to come to the truth and I really, really
16       feel sorry for them but there is no other outcome and
17       they go down in history and their children and the
18       children of their children will read in history that
19       their father made a mistake and I really feel sorry for
20       them.
21   Q.  Did you say at any stage during that conversation that
22       they had two weeks to change their minds?
23   A.  Sorry, I missed that one.
24   Q.  That they had two weeks in which to change their minds?
25   A.  I may have put some kind of urgency upon it and said,
page 107
 1       but I think I based that on the impression I got from
 2       the speed the investigation went but I don't have an
 3       exact recollection of that.  I've read in the statement
 4       that I've said so and if I said so it may be, yes.
 5   Q.  Two weeks sounds quite specific, doesn't it?
 6   A.  Yes.  I don't know.  Could be, yes.
 7   Q.  But you don't recall now why you would have said
 8       specifically two weeks?
 9   A.  No, I think now that it is based on my assessment of the
10       situation, the speed the things went.  I was asked to be
11       interviewed that afternoon.  Maybe I was wrong in
12       calling it two weeks or a week.  I don't know.  I
13       really ... I will not take the position that my
14       recollection fails all the time but really it's long
15       ago.
16   Q.  Given what you say and the circumstances under which it
17       was said, can you see now how it could have been
18       perceived as threatening?
19   A.  No.
20   Q.  Why not?
21   A.  Definitely not because it was not said then and if we
22       look at how the meeting ended -- let me see where I can
23       find that -- this is how the meeting ended:
24           "Dr Bramley thanked SCRO and HMIC for their
25       professional co-operation.  Mr Zeelenberg stated that it
page 108
 1       had been a unique occasion and he tried to speculate
 2       about what might happen or could happen.  He advised the
 3       group that he had been very happy with the attitude of
 4       Robert and Alan and stated that he was impressed by
 5       their courage.  Mr Mackay thanked SCRO and HMIC for
 6       their excellent and professional presentations and hoped
 7       the matter could be resolved."
 8           There is no indication whatsoever that I did
 9       anything wrong.  There was no complaint filed.  When
10       Justice 1 Mr Mackenzie came with veiled threats, now
11       they are open threats.  I think it has grown over the
12       years.  I can understand in the position where they are
13       they try to rationalise everything what happened and
14       that it has grown upon them and if they take it that way
15       I apologise but if you have read my story you know that
16       it has never been my intent.  I was not in the position
17       of threatening anyone.  How could I threaten them and
18       their family?  It's just bizarre.
19   Q.  If you are incorrect about what you have just stated and
20       that the matter was indeed reported at the time, would
21       you perhaps then accept that at least there was some
22       perception on the part of Mr Mackenzie and Mr Dunbar
23       that your exchange had been threatening?
24   A.  I am not a master of their perception but they have
25       never indicated, not at that moment -- actually,
page 109
 1       Mackenzie confirmed what I said, "Yes, Arie, this has
 2       gone through my mind".  At that moment he could not say
 3       that it was a threat because he had the same thoughts.
 4       So it is just bizarre.
 5   Q.  Paragraph 52 of your statement mentions the subsequent
 6       telephone conversation that you had with Mr Dunbar.  You
 7       say in that:
 8           "If this presentation were used to convince people
 9       of authority that the opinion of SCRO is correct, then
10       this is the closest to malpractice I have ever seen."
11           Do you recall saying that?
12   A.  Yes.
13   Q.  Is that still your view?
14   A.  Yes.
15   Q.  Are you of the view that Mr Mackenzie misrepresented the
16       situation at Tulliallan?
17   A.  Yes.
18   Q.  How so?
19   A.  I have shown in my presentation, I think very obviously,
20       that facts were concealed.  He never explicitly stated
21       that the implication was that there were so many
22       deposits.  I think if he had done so, other people would
23       have picked up.  It's not in the minutes.  There's
24       nothing saying that and he has concealed certain things
25       in his presentation.  He's never indicated the
page 110
 1       implication.  I am of the firm opinion that -- and that
 2       I have put it into context, if you use these type of
 3       presentations to convince people of authority that you
 4       are right and this has implications for other people,
 5       then I think it is malpractice and I stick to that
 6       opinion.
 7   Q.  Mr Mackenzie, you will understand, is one of those
 8       officers who had their career brought to an end as a
 9       result of this matter.
10           What does he now have to gain by misrepresenting the
11       situation?
12   A.  I don't know what he has to gain but I think they have
13       arrived in the position that they cannot retreat from
14       the position any more without loss of face.  I think
15       that's what they think but I'm not a psychologist.
16   THE CHAIRMAN:  I am not sure now, from what you say, whether
17       you are implying that by nothing to gain this witness, I
18       imagine, wouldn't be in a position to answer any
19       question about employment or financial results of him
20       not remaining in employment.  I think his answer must be
21       limited to subjects that are within his own
22       understanding.
23   MR HOLMES:  I am merely suggesting to the witness that
24       Mr Mackenzie and those others who are no longer employed
25       by SCRO, none of those officers have a position to
page 111
 1       protect.
 2           Is that something you would accept, Mr Zeelenberg?
 3   A.  He can protect but I think then he has chosen the wrong
 4       road.  He can also take the officers from the FBI as an
 5       example and they have regained their integrity and their
 6       self esteem.
 7   Q.  Paragraph 54 of your statement refers again to the
 8       exchange between yourself and Mr Mackenzie and it says
 9       that your concern was to rectify the mistake, as you see
10       it, without it becoming public.
11           Even then, Mr Zeelenberg, was it not plain that
12       matters were going to become very public?
13   A.  Yes, but what does it change?  I think I've explained my
14       position.
15   Q.  Chapter 4 of your statement makes reference to the
16       petition to the Scottish Parliament.  It says:
17           "After HMIC and the statement of the
18       Justice Minister many people believed that the matter
19       was closed and would be internally addressed within the
20       fingerprint organisation in Scotland."
21           Who believed the matter to be closed at that stage,
22       Mr Zeelenberg?
23   A.  I hoped that the matter was going to be closed because
24       that was, I think, the aim of the HMIC investigation and
25       he had -- and the remit of Scottish Parliament and I
page 112
 1       think everybody hoped that the case would be closed
 2       and good measures were taken.
 3   Q.  What did you expect when you said that you believed the
 4       matter would be internally addressed?
 5   A.  Well, I would just keep it short and say that they would
 6       have something like the Mayfield case, investigate
 7       stings, look where they went wrong and try to change,
 8       try to identify the causes of the mistake.  Anybody
 9       would expect that.
10   Q.  The subsequent paragraph, paragraph 63 of your
11       statement, states that SCRO staff publicly denied that
12       they had made a mistake.  Who did?
13   A.  I don't really recall now but I think there's several
14       newspaper articles that just insisted and also on public
15       websites that SCRO -- and also the letter they sent to,
16       this public letter in the newspaper, they stated that
17       they were right and others were wrong.
18   Q.  Are these newspaper articles that you have seen
19       yourself?
20   A.  I guess I have seen so but I have -- at least I've seen
21       this letter they have published where 52 signed and they
22       were of the opinion that -- well, they stated a lot of
23       things but were of the opinion that the identification
24       was right and they also referred in a very negative way
25       to Asbury and to McKie and all those type of things.
page 113
 1   Q.  We have heard some evidence at least that SCRO staff
 2       were prevented from commenting on the case so who had
 3       the opportunity to make the public denials that you have
 4       referred to?
 5   A.  If you are happy I can dive into the history and try to
 6       find out but I have no real examples of it.  I think it
 7       was a general assessment and I think it still goes on to
 8       date.
 9   Q.  So that is your recollection of it and nothing that you
10       can necessarily point to and say there is a denial.
11   A.  I just mentioned the letter that was in the public
12       domain but if you want me I can find other things.  I
13       think in a way it's fruitless.
14   Q.  Move on to the subsequent paragraph, which is 64.  It
15       suggests that the notion that fingerprint evidence is a
16       matter of opinion is damaging to the profession.
17           I think your evidence this morning has been, though,
18       that there is a subjective element to fingerprint
19       analysis.  Is that not correct?
20   A.  Yes, that's true but I think that if you read the
21       petition to the Scottish Parliament it is very well
22       explained that, in this particular case, this position
23       could not be taken and that was effectively the harm
24       that is still going on because any scientific paper on
25       fingerprints is mentioning this case, in particular the
page 114
 1       issue that it is not acknowledged.
 2   Q.  Paragraph 65 of your statement says that:
 3           "It was obvious that the fingerprint profession in
 4       Scotland was not prepared to resolve the case and
 5       neither was the management.  Experts, even throughout
 6       the UK other than in Scotland, were encouraged to
 7       silence."
 8           Who were the experts who were encouraged not to say
 9       anything?
10   A.  I think that that goes still on to date.  I think there
11       has been a letter from ACPOS that circulated in the
12       country that what the Office official position was about
13       this fingerprint and from my contacts with a number of
14       experts in the UK it's very obvious that they have got
15       the message not to talk about it.
16   Q.  I think you have answered my next question which was how
17       you have mentioned a letter but surely that has not been
18       100 per cent of the experts who could possibly speak
19       about this matter, has it?
20   A.  No, I will never talk 100 per cent, no.
21   Q.  No, because Mr Bayle hasn't been silent about it.  He
22       was on the Frontline Scotland documentaries.  Have you
23       seen those?
24   A.  I am aware of a number of experts that stood up to be
25       counted.  I am also aware that they have had very
page 115
 1       negative effects off this exercise.
 2   Q.  Mr Dempster, you will be aware, was also on those
 3       television programmes?
 4   A.  Yes, I'm aware of that.
 5   Q.  You are aware of the letter written by some of those
 6       employed by the Edinburgh Bureau, are you?
 7   A.  Aberdeen Bureau, you say?
 8   Q.  Edinburgh Bureau.
 9   A.  The Lothian & borders, you mean?
10   Q.  Yes.
11   A.  I'm aware of that, yes.
12   Q.  Are you aware that -- we have heard evidence that some
13       of those who are purported to have signed that letter
14       did not actually do so?  Are you aware of the
15       circumstances of that or are you not able to comment?
16   A.  I've heard of it but I've also spoken to one of them and
17       he's told me personally that he has suffered negative
18       effects from his participation in that.
19   Q.  There are also the Aberdeen Bureau's experts, Mr McLeod,
20       Mr McGregor, Mr Grigg, Mr Sheppard.  That seems to be
21       quite a number of people who have not been silenced,
22       does it not?
23   A.  They are not silenced but they all suffered and I could
24       only say if only SCRO management had listened to them
25       then I wouldn't be here.
page 116
 1   Q.  I do not think we have heard anything -- and I will be
 2       corrected -- from any of those individuals who have
 3       given evidence about any intimidation and none of them
 4       certainly have been shy about speaking up.
 5           Is there anything that you can point to to support
 6       your allegations?
 7   A.  What allegations do you mean?
 8   Q.  The allegations that these experts have been encouraged
 9       to silence.
10   A.  I think they have all suffered negative effects, either
11       in their career or in their positioning and I'm not
12       going to be any more specific about it.
13   Q.  Why not?
14   A.  Because it will only make it worse.
15   Q.  Well, I can contrast this position, can I not, with that
16       of Mr Graham -- I know you said you haven't read his
17       evidence but if you take it from me he has spoken to
18       contact with Mr McKie that he perceived to be
19       threatening.  We can contrast that with the position of
20       Mr Swann who suffered years of complaints and we can
21       contrast that with the position of the SCRO experts
22       themselves, can we not?
23   A.  If you say so, yes, I'm fine.
24   Q.  It is quite clear that those individuals have all
25       suffered negative effects, yet there have been very many
page 117
 1       who have spoken out in favour of the contrary position
 2       and who don't seem to be suffering from any
 3       encouragement to silence, as you have put it.
 4   A.  Well, what can I say?  From the very beginning I've
 5       warned for the negative effects for everybody involved.
 6       There are no winners in this case and Mr Swann is kind
 7       of independent and if there are complaints filed against
 8       him for improfessional(sic) conduct or I will call
 9       unprofessional conduct, is that a complaint?  Is that a
10       threat?  I don't know.  That may be normal procedures.
11       I'm not the judge of that.
12   Q.  Paragraph 66 of your statement says that:
13           "The evidence (in particular the images of Y7 and
14       Shirley McKie's inked mark) was not released for open
15       debate in the profession as should be the case."
16           Can you name other cases where this has been done?
17   A.  Sorry?
18   Q.  Can you name other cases where the evidence has been
19       released for public debate?
20   A.  The McKie case was on the Internet, I think, four weeks
21       after it happened.
22   Q.  Yes, but can you name cases other than this one where
23       the evidence has been distributed widely in order to
24       encourage some debate about the result?
25   A.  I don't think I understand your question.
page 118
 1   Q.  You are suggesting that it would be a good thing if the
 2       materials from this case were widely distributed in
 3       order to encourage a debate.
 4           I am asking if you can think of any other cases in
 5       which that has been done?
 6   A.  Oh, I think so.  I mentioned the Mayfield case but there
 7       are other old cases.  My point is that, I think -- and
 8       I've made it before -- that we should disseminate the
 9       forensic side of fingerprints from the investigation
10       side serving the police and I think if we look at it as
11       a forensic science, whatever how you call it, or a
12       forensic technique, then the science should rule, the
13       science, and if there is a problem then it should be put
14       in the professional domain and discussed over there.
15       That's the point I want to make.
16   Q.  If the material is distributed so widely though is there
17       not a risk that it will be given out to such a large
18       group as there is no possibility of knowing whether any
19       of those who have examined the material and are
20       contributing to the debate have properly examined the
21       material they've been given?
22   A.  I don't think that is any problem.  If material is
23       released and you say that it is under debate, then that
24       no effect, any effect of bias.  If I'm getting a
25       disputed mark, then the instruments I have is do a
page 119
 1       proper analysis, look at it and then come to an
 2       independent opinion.
 3   Q.  That's something that you can speak to yourself doing
 4       but it is something that you cannot guarantee.  It is a
 5       procedure that you cannot guarantee others will follow
 6       if you simply distribute the materials from the case as
 7       widely as possible, is it?
 8   A.  No.  I'm not a master of that you are right, yes.  But
 9       if we have bodies like the IAI and bodies like NSVI
10       where we regularly study material, release it amongst
11       us, we will have another opportunity in November in
12       Sicily in Italy, we will distribute latents, difficult
13       latents, study them, make our own analysis and then have
14       a group session in which we will discuss them and that's
15       what I am aiming at.
16   Q.  Paragraph 67 of your statement says that it was clear
17       that change had to come from the level above that of the
18       administration.
19           Can you clarify what you meant by that?
20   A.  Yes.  I think that the call from HMIC and the Parliament
21       was to open up for transparency and accountability, and
22       we didn't see it and it was the assessment of a member
23       of Parliament, Michael Russell in particular, his
24       assessment was that the case was not going to be
25       resolved within Scotland and he called for a petition.
page 120
 1       I think he is now a Minister for Environment and I think
 2       I don't dispute his assessment.
 3   Q.  Is that the petition that you refer to when you say next
 4       in that paragraph that experts who had viewed the
 5       material had issued a statement?
 6   A.  Yes.
 7   Q.  What material did the experts who signed that statement
 8       view?
 9   A.  Those were the images provided by Pat Wertheim.
10   Q.  At whose behest had they viewed that material?
11   A.  Sorry?
12   Q.  At whose behest had they viewed that material?
13   A.  Behest?
14   THE CHAIRMAN:  Who proposed that that would be the material?
15   A.  I think there were several people involved and I was
16       involved in it and people in the United States and in
17       the UK.  They distributed the things and asked people's
18       opinions and the outcome was pretty obvious.
19   MR HOLMES:  Are you aware of the conditions under which each
20       of those individuals examined the material?
21   A.  No, but assuming and knowing most of the people I think
22       they have done that professionally.
23   Q.  Whose decision was it to issue this petition after the
24       material had been examined?
25   A.  I think the initiative came from Mr Russell and maybe
page 121
 1       McKie, but there was also a strong feeling in the
 2       professional circles that this thing had to be
 3       addressed, it had to go out, it was harmful not only
 4       within Scotland, it was harming the whole of the
 5       profession in the whole world.
 6   Q.  The petition mentioned a particular individual as being
 7       the signatories' examiner of choice really to assist the
 8       Parliament.  Is that correct?
 9   A.  Yes.
10   Q.  Who was that individual?
11   A.  I think Mr Ashbaugh was put forward.
12   Q.  Whose decision was it to recommend Mr Ashbaugh?
13   A.  I don't know.
14   Q.  Was it discussed amongst those who had signed the
15       petition?
16   A.  Not all of them, no.
17   Q.  Are you aware of any discussions that took place with
18       regard to that recommendation?
19   A.  I cannot tell, no.  I don't know.
20   Q.  Were you aware when you signed the petition that
21       Mr Ashbaugh was to be recommended to assist the
22       Parliament?
23   A.  I think the petition came later after on the signatories
24       and then we had a petition.  But I'm not sure what you
25       mean.
page 122
 1   Q.  Are you aware that it was Mr Ashbaugh that had been
 2       selected as the man to be recommended to the Parliament?
 3   A.  Oh, yes, I was aware of that and I had no objection
 4       because I think he is --
 5   Q.  Were you aware at the time that you signed the petition
 6       that recommended Mr Ashbaugh whether he had already seen
 7       Y7 or not?
 8   A.  I was aware that he had seen it on the occasion but the
 9       problem then was not whether Y7 was an ident or a
10       mistaken ident or not.  We thought that was already
11       settled.  So the issue was not to revisit Y7, the issue
12       was the position taken by the Scottish and to address
13       that, the position they had taken that it was disputed
14       or whatever.
15   Q.  You were aware that Mr Ashbaugh had already seen the
16       mark.  Should you not really have recommended somebody
17       who could have carried out an independent examination to
18       assist in this?
19   A.  If you read the petition, then I think the starting
20       point was that the mistake was already established and
21       acknowledged by the court, by the Minister for
22       Justice and everybody who did an official investigation
23       and the only people that did not was the SCRO.  So that
24       was the real problem and to keep that debate alive, that
25       was harmful to the profession.  I think that's what the
page 123
 1       petition says.
 2   Q.  If you regarded the matter as settled, then why were you
 3       submitting a petition to the Parliament?
 4   A.  I think I can read it out but I think the petition is
 5       making it very clear.
 6   THE CHAIRMAN:  I have the petition.
 7   A.  I think the petition is very clear about it.
 8   MR HOLMES:  Paragraph 71 of your statement states that it
 9       would be virtually impossible to find an expert of some
10       reputation that would support an identification of Y7,
11       and be prepared to say that it was just a matter of
12       opinion.  I think you have given evidence that there is
13       room for some element, at least, of subjectivity in
14       fingerprinting.
15   A.  Yes, but I think that we have addressed that quite
16       extensively already.  I don't think I've much to add to
17       that.  I'm sorry.
18   Q.  If there's no room for any more than a small element of
19       subjectivity, how do we have these two polar opposite
20       opinions today?
21   A.  I don't think that there are much polar opinions.  I
22       think the general opinion is very, very clear.  Y7 is
23       not from Shirley McKie: period.
24   Q.  You have that opinion and there are, I
25       acknowledge, other experts who have that opinion but you
page 124
 1       will understand that I act on behalf of experts who
 2       formerly worked for SCRO.  There are other experts who
 3       support that opinion.  How do you account for the fact
 4       that this opinion still exists?
 5   A.  Well, I think that's a psychological matter.
 6   Q.  In respect of each and every one of them, including the
 7       independent experts?
 8   A.  Yes.
 9   Q.  Paragraph 72 of your statement says that once an expert
10       has taken a position on analysis of a mark, it is very
11       difficult for that expert to change his mind.
12           Surely that must apply to both sides of this debate,
13       must it not?
14   A.  Yes.
15   Q.  So what value does the statement itself have?
16   A.  I was just indicating what we discussed with Mr Moynihan
17       the psychology of how the human mind works, in
18       particular from experts, and I also said it's a feature
19       of human nature that the withstanding of that starts
20       with the awareness that it is a certain effect.
21   Q.  If this is the view that you adopt with regard to both
22       sets of expert witnesses, might it not also be a view
23       that one could adopt with regard to Ms McKie?
24   A.  I don't see what it has to do with Ms McKie.
25   Q.  Ms McKie has taken her position and she has now gone
page 125
 1       through several years of proceedings as much as anyone
 2       else has.  Is it not more difficult now for her to
 3       change that position than it previously was?
 4   A.  I refuse to answer questions about Ms McKie because
 5       that's not the subject in my opinion.  I don't want to
 6       go there.
 7   THE CHAIRMAN:  That is not your expertise.  You can only
 8       speak about fingerprints and fingerprint experts.
 9   A.  Exactly.
10   MR HOLMES:  Well, sir, the witness was content to speak
11       about matters of psychology affecting the position of
12       experts before.
13   THE CHAIRMAN:  In relation to experts.
14   MR HOLMES:  Very well.  I will move on.
15           Paragraph 73, there is a review referred to which is
16       carried out by assessing which Galton points are
17       relevant within the unknown mark.
18           Is assessment and the determination of relevance not
19       a subjective process?
20   A.  In a certain way what you see has some subjectivity but,
21       as I demonstrated, if you are able to point out what you
22       see and follow the lines, I think much of the
23       subjectivity is lifted.
24   Q.  The assessment of a mark, can this be achieved in 60
25       seconds?
page 126
 1   A.  What you have seen is that if an expert is looking at a
 2       print he can quite quickly assess a cluster of points
 3       and then quite quickly exclude somebody as a donor of
 4       the mark, yes.  You have seen how quick that can be
 5       done.
 6   Q.  Even on an unknown mark which is difficult to interpret?
 7   A.  It will be slightly different if you have an unknown
 8       mark but I don't know how long it was looked at but if
 9       somebody is looking at this print it's obvious that
10       there is a cluster of five or six points that you cannot
11       miss and there is coherence between them and, with that
12       in mind, I think the exclusion can be done quite
13       quickly.
14   Q.  If I can move on to chapter 6 of your statement which
15       refers to QI2, the first question is have is about
16       paragraph 101 of the statement.  It states that if Y7
17       was the only mistake in the case, it could have been
18       argued that a mistake was made and there was no criminal
19       conduct from the outset.
20           Is what you are saying in that sentence that there
21       clearly was criminal conduct from the outset of this
22       case?
23   A.  Well, it infers it but I've always said, with respect to
24       Y7, that I believe that it started as an honest mistake
25       and I still uphold that.  But if you refer that to QI2,
page 127
 1       what I actually say is here we don't see the stepping
 2       stone that could explain why somebody went wrong.
 3   Q.  Paragraph 102 of your statement asks a rhetorical
 4       question.  It says:
 5           "How could these individuals who appear to be
 6       competent make two serious errors accidentally in one
 7       case?"
 8           Does that not itself raise the alternative question:
 9       how could there be four, that includes XF and QD2,
10       mis-identifications in one case when every
11       identification made by these individuals for a period of
12       a year before and a year after this case had been
13       checked by an outside agency?
14   A.  Well, this is a little bit on the edge of my knowledge,
15       my domain.  But if we look at the magnitude of the
16       mistakes and then just in particular if it is found out
17       that no other mistakes were ever made and you have two
18       in one case and common sense tells you that there may be
19       other factors involved.  I cannot see differently.
20   Q.  Well, it has been alleged that there were greater than
21       two mistakes in this case.  It has been alleged that
22       there were four.  It's been alleged that XF, there was
23       something suspicious about the identification of XF and
24       it has been previously alleged, although that has now
25       been recanted, that QD2 was a mis-identification.
page 128
 1           Does it not raise a suspicion about those
 2       questioning the identifications rather than about those
 3       carrying out the identifications if this is the only
 4       case in which those questions arise?
 5   MR SMITH:  Sir, I wonder if I could interject?  I am not
 6       sure I understand where the suggestion comes from that
 7       there was a question mark over the identification of XF.
 8       I may have missed it but I don't know whether anyone has
 9       actually suggested there was a mis-identification of XF.
10   THE CHAIRMAN:  There was, at one time questions were
11       raised --
12   MR SMITH:  The provenance of it.
13   THE CHAIRMAN:  -- about the mark but I think it's accepted
14       that it is correctly identified.
15   MR SMITH:  It always has been.  Certainly, I have never on
16       any occasion made an allegation that XF was incorrectly
17       identified and I think if the question is going to be
18       put it should be put against the correct factual basis,
19       though I stand to be corrected by Mr Holmes if I have
20       made a mistake then I am happy to admit to it.
21   MR HOLMES:  No, I am not suggesting, sir, there was a
22       question over the identification of XF.  What I am
23       suggesting is that there have been question marks over a
24       number of the marks in this case.  Mr Smith is perfectly
25       correct to say that it was the provenance of XF that was
page 129
 1       questioned but nonetheless it's a mark on which
 2       suspicion has been cast.
 3   THE WITNESS:  I have cast no doubt on XF.  I have identified
 4       it and if you are alluding to the problems with QD2, I
 5       think that matter was resolved in a different way and
 6       you can read it in my witness testimony or my testimony,
 7       what I think was the cause of that and this is confirmed
 8       by Mr Frank Jensen from the Danish police.
 9   THE CHAIRMAN:  I do not think we need to go into QD2.
10   MR HOLMES:  My question is: where there are a number of
11       questioned identifications or a number of questions
12       regarding identifications in a single case and in no
13       other, does that not raise suspicions about those that
14       are questioning the identifications rather than about
15       those who are carrying out the identification work
16       itself.
17   A.  Well, it could be but I think in my view it raises
18       questions about the underlying reasons why two mistakes
19       were made in one case rather than the other argument.
20   Q.  Paragraph 104 of your statement says that:
21           "The allegations made by SCRO against those
22       criticising the identification is to attempt to bring
23       those individuals into disrepute.  The pattern [that is
24       of SCRO] dealing with experts who do not support the
25       identification of Y7 is consistent, that any expert who
page 130
 1       contradicts SCRO is criticised as follows: Pat Wertheim
 2       for not being qualified and damaging the mark; the Danes
 3       for making an error in QD2; the Dutch for failing to
 4       meet the standards in Evett & Williams; and everyone
 5       else for not having access to the original material."
 6           Firstly, the statement that some individuals did not
 7       see original material cannot be construed in any way as
 8       an attempt to bring those individuals into disrepute,
 9       can it, Mr Zeelenberg?
10   A.  Not on itself but I have seen police officers on
11       television who said -- and others posting that -- and I
12       think it was also Mr Leadbetter who stated it explicitly
13       that if you would use that material that was a
14       demonstration of incompetency.
15   Q.  Is it not the case that others have attempted to bring
16       those agreeing with the SCRO into disrepute over the
17       years?
18   A.  I don't know of that and I have never been involved in
19       such a thing.
20   THE CHAIRMAN:  Can I interrupt you just for one moment.
21           Are you confident that you will be able to finish?
22       Otherwise, if not, I will take the break for ten minutes
23       now.
24   MR HOLMES:  I am fairly confident I will be able to finish.
25   THE CHAIRMAN:  Even if we take the break of 10 minutes?
page 131
 1   MR HOLMES:  Yes, sir.
 2   THE CHAIRMAN:  I am sure you will welcome a short break.  So
 3       we will stop now until 3.00.
 4   (2.50 pm)
 5                         (A short break)
 6   (3.00 pm)
 7   MR HOLMES:  Thank you, sir.
 8           Mr Zeelenberg, I am at paragraph 108 of your
 9       statement now.  You are making reference to the Evett
10       & Williams report and you sate it 108 that Evett &
11       Williams was not a means to measure competency.
12           Was it not inevitable that it would be taken as
13       such?
14   A.  No, I don't think so.
15   Q.  The Dutch experts who took part in the Evett & Williams
16       study were working under a numeric system with a lower
17       threshold than the UK at the time.
18           Did they make the number of identifications that was
19       expected of them during that study?
20   A.  I don't know whether it was -- a number of
21       identifications were expected.  What Iain Evett and
22       Williams were trying to detect was the consistency of
23       how people were marking the points and if that was
24       consistent there would be some merit in using a 16-point
25       standard.
page 132
 1   Q.  How many cases were distributed as part of the materials
 2       for the study?
 3   A.  I think ten.
 4   Q.  Each of those cases would have a result that was
 5       expected by the people that were conducting that study;
 6       is that correct?
 7   A.  I don't know whether they expected a result but I know
 8       that one was not identical and the people that composed
 9       the collaborative study, it was not a test, expected
10       under the UK conditions that six would be identified,
11       three not and one was not identical.
12   Q.  What were the results from your bureau?
13   A.  I have to explain that a little bit further because we
14       took it differently.  First of all, if I say it's not a
15       competency test then that is because if you give people
16       two images to compare and then I will just say I see
17       20 points and then say it's identical then I would have
18       proved that I was competent and I don't think that was
19       in the nature of it.
20           From a scientific point of view it could never have
21       been a competency test because the ground truth was
22       unknown and if you want to be able to prove somebody
23       wrong or right you should be certain about the origin
24       where it comes from and if you don't know then you still
25       have the dispute is there whether he is right and I am
page 133
 1       wrong.
 2           As I demonstrated in particular with mark B I think
 3       it is very questionable to identify that one and then
 4       the number of points you can find for me was immaterial.
 5       I can only tell that Mr Ian Evett has come over to our
 6       office many, many times and we have had in-depth
 7       discussions and the point was for us not so much to
 8       participate and try to find as many points as we could
 9       because it seems that within the UK practitioners it
10       seems that if there was kind of a horse race how many
11       points you could find and that was not our issue.  We
12       had a different approach.  We had very little time to
13       prepare, I must say, but I myself wrote down my findings
14       in point by point, which point I found good and I got a
15       written reply back from, I think it was Mr Williams.
16           What we did very briefly with three people involved,
17       not from our own department, was look at the prints and
18       we said on a quick assessment this one would maybe pass
19       and this one would maybe not but we did not assign,
20       let's say, that significance to it.  But if you want to
21       know the specific results which could not be classified
22       in the way Mr Evett meant, then I would say that mark A
23       had for us a potential for an ident and potential for
24       the multiple procedure; mark B, I have explained why we
25       would never identify that; mark C we would call a
page 134
 1       partial maybe but we had difficulties and struggled with
 2       the word, what the partial was.  We had no such thing in
 3       the Netherlands as a partial identification.  Mark D, it
 4       was a potential for the questionable procedure, the
 5       multiple procedure; mark E was dismissed because of bad
 6       areas; mark F, we were in agreement it was an
 7       identification; mark G, we identified as not fit for
 8       comparison; mark H, we would discuss 11 points, no
 9       ident, no partial; and mark I, 14 points discussed,
10       potential identification; and mark J was not identical.
11           So we are about three or four we would maybe
12       identify and we were completely in line with what the
13       Germans did.  They also had a maximum of three
14       identifications.  I can only say I think history has
15       proved us right.
16   Q.  It was not simply a point-counting exercise though, was
17       it, because what you had was a number of marks, some of
18       which it would be expected that an expert would
19       identify, some of which an expert would exclude and some
20       of which an expert would say were insufficient for
21       examination purposes.  Is that not correct?
22   A.  Yes, but then is it measured to the standard at hand and
23       what is proven is that we had a different standard.
24       What is not proven is that we are incompetent or
25       competent.
page 135
 1           The only competency element in this was whether you
 2       could find out that mark J was not identical and for the
 3       other elements there were no competency elements in it
 4       because the simple point was how many reliable points
 5       did you see and does it fit your standard.
 6   Q.  Paragraph 109 of your statement gives a number of
 7       reasons for the test not being a test of competency.
 8       The second part says in a competency test one would
 9       supply an expert with the marks and a number of
10       reference prints to choose so he could prove his
11       competency by picking the right print.
12           Was the point of the study not that this was a
13       single examination to produce the result of
14       identification, no identification or insufficient for
15       identification?
16   A.  No, I defy that that was the result.  The result was to
17       measure the consistency of marking up the points and the
18       findings Iain Evett I remember very vividly that he came
19       over to our office and said, "Arie, take a look", and it
20       was embarrassing, he said, nobody found 15.  That was
21       how he explained to us the culture of teasing the points
22       out rather than having any system of really defining the
23       points.  I think what he demonstrated was the absence of
24       any descriptive model and decision-making model, what
25       you assign as a point and a point of similarity.
page 136
 1   Q.  Were the decisions that your examiners were being asked
 2       to make not precisely the same decisions that a
 3       competent examiner will have to make and be expected to
 4       get right on a daily basis?
 5   A.  I turn back to that the expectation that was set by the
 6       team that assessed the test from us, the
 7       collaborative study was based upon the presumed UK
 8       standards and what Evett effectively proved that there
 9       were no standards in the UK.
10   Q.  Paragraph 110 of your statement suggests that the test
11       was as simple as matching A to A, B to B, et cetera.  I
12       think your evidence yesterday was relatively disparaging
13       about the test, if I am not being unfair.
14           Was it not the case that some of the fingerprints
15       supplied with that test were designed not to be
16       identified, as in not to be a match?
17   A.  There was one in there that was not identical, presumed
18       not identical, but they knew it was not identical
19       because it was construed and put together.  They tried
20       maybe to trick people.  I don't know.
21   Q.  Was the potential there for a mis-identification to be
22       made during this test?
23   A.  Yes, there was one.
24   Q.  Would you say that the experts at your bureau were
25       perhaps overcautious as a result of the possibilities of
page 137
 1       this test?
 2   A.  I think that I could cite Mr Evett there extensively.
 3       I've already done that and I can repeat I think history
 4       has proven us right.
 5   Q.  Paragraph 113 of your statement presumes that the
 6       experts who did better on the test did so by assuming
 7       that there was a match and working backwards.
 8           How do you know that?
 9   A.  I think these were the findings of Mr Evett.
10   Q.  Paragraphs 116 to 118 state that the result was a joint
11       effort.  That does not make an examination in real life,
12       does it?
13   A.  I am sorry, I don't know where you are.
14   THE CHAIRMAN:  115 to 118?
15   MR HOLMES:  116 to 118, sir.
16   A.  What is the question?
17   Q.  The question is that these paragraphs indicate that the
18       result of the Evett and Williams submission from your
19       bureau was a joint effort but that does not mimic an
20       examination in real life, does it?
21   A.  Oh, yes, it does.
22   Q.  My clients have been criticised for allegedly leaving
23       points on a comparator during an exercise because it can
24       potentially indicate what another examiner was thinking.
25       Could your bureau not be criticise for the same reason,
page 138
 1       for responding to something like this jointly?
 2   A.  I think you now misread our process.  I think I
 3       explained that every examiner will do it individually
 4       and then make annotations and then compare it with each
 5       other and then justify or argue what he has seen and
 6       there is little room for any influence there.
 7   Q.  Paragraph 119 relates to the numeric standard that was
 8       formerly in place in the UK.  It identifies a problem
 9       with that standard.  It says that experts will identify
10       with fewer than 16 but express that identification as a
11       certainty.
12           Can you tell me, have experts always been willing to
13       assign identity with fewer than 16 points or, in the
14       case of your national standard, fewer than 12?
15   A.  I'm not sure I understand the question.  I'm sorry, I
16       don't want to be ... I want to be constructive.
17   Q.  Rather than an identification for the purposes of giving
18       evidence in court, have experts, to your knowledge, in
19       systems where there is a numeric requirement in place,
20       been willing to assign identity to the donor of a mark
21       with fewer points than the numeric standard requires?
22   A.  I don't know of any cases but it seems logic to me that
23       if you have a ruling standard and that is proven to be
24       empirical and reliable over many years that you would
25       not go below that but that's not a matter of -- that's
page 139
 1       more a matter of policy than a matter of principle.
 2   Q.  You work in a system where the standard is 12 points; is
 3       that correct?
 4   A.  Yes.
 5   Q.  But you have already spoken to individuals speaking to
 6       an identification in court with 10 points?
 7   A.  Yes.
 8   Q.  In fact, you have said that individuals will give
 9       evidence with fewer than ten points where they are
10       fairly certain that the donor of the mark has been
11       identified?
12   A.  Do you mean our situation?
13   Q.  Yes.
14   A.  What I testified is that if I have worked on a case for
15       court then I will evaluate all the marks and if there is
16       a mark in there in which I have put considerable effort
17       to compare it and I would find six or seven or eight
18       points, no discrepancies, then I would report that I
19       don't see that it's meeting our standards, I cannot be
20       certain that this is the source.  I have no instruments
21       to give any other conclusion but I think I have the
22       obligation to reveal to the court what I have done and
23       exactly what my findings are but I cannot give a value
24       to that evidence.  I have no instruments for that and
25       maybe that will come in the future with statistics.
page 140
 1   Q.  So in a numeric system say, for example, the one in the
 2       UK previously existing, would examiners assign ownership
 3       of a mark with fewer than 16 points but not be able to
 4       speak to it in court?
 5   A.  I don't see where you are --
 6   THE CHAIRMAN:  Can you speak to the UK practice?  Can you
 7       speak to what the practice was in the United Kingdom?
 8   A.  No, I can't.
 9   MR HOLMES:  Paragraph 127 of your statement states that:
10           "The Dutch regard fingerprint comparison as both
11       quantitative and qualitative analysis."
12           How can something involving a qualitative analysis
13       be objective?
14   A.  There is definitely, as I have already explained, a
15       subjective element in the analysis of fingerprints and
16       that is why not everybody is doing it; that is why we
17       need experts.
18   Q.  So there is always going to be a subjective element to
19       any examination?
20   A.  Yes.
21   Q.  Paragraph 174 of your statement emphasises the need for
22       full disclosure of all forensic evidence and free
23       evaluation of it without fear or favour.
24           Do you advocate that obligation on both the defence
25       and the prosecution?
page 141
 1   A.  Definitely.
 2   Q.  So in the present case Ms McKie would have been obliged
 3       to reveal prior to her perjury trial that she had been
 4       to see Peter Swann and that Mr Swann had confirmed the
 5       SCRO view that Y7 was made by her?
 6   A.  I don't think I feel competent and well informed enough
 7       to answer this question.
 8   THE CHAIRMAN:  No, you are just saying generally that's your
 9       position that --
10   A.  Yes, but I refer to the science of fingerprints.
11   THE CHAIRMAN:  -- all should be available, made available --
12   A.  Yes.
13   THE CHAIRMAN:  -- both sides?
14   MR HOLMES:  Chapter 9 of your statement deals with the SPSA
15       and paragraph 200 refers to the powers that dwell on
16       self-right within the Glasgow Bureau.
17           Who are you referring to when you say that?
18   A.  I must emphasise again that this was an internal letter
19       from myself as a panel member to David Mulhern and that
20       was my best assessment of what was going on at that very
21       moment within the Glasgow Bureau.
22   Q.  This is your statement to the Inquiry.  It's not an
23       internal letter.
24   A.  Well, I explain the context but I still uphold what I
25       write there.  I think it's still valid.
page 142
 1   Q.  So who are the powers that you refer to?
 2   A.  I think if we look at self-right, I still refer to this
 3       letter that was in the public domain and it is never
 4       corrected and I am aware that there's still people
 5       within that Bureau that uphold that they are right and
 6       others are wrong.
 7   Q.  Paragraph 201 of your statement says that:
 8           "Within the service there will be members of staff
 9       that know or suspect that a mistake is made but have
10       adapted to the pressure of the group."
11           Again, who are they?
12   A.  I'm not going to name them but I know a few.
13   Q.  Do you accept that the only evidence of anyone being put
14       under pressure that we have heard is the evidence that
15       I've referred to where Mr Malcolm Graham gave evidence
16       that Mr McKie had telephoned him and issued what he
17       perceived as a threat?
18   A.  I cannot comment.
19   Q.  In paragraph 202 you suggest that these individuals that
20       you are not going to name be allowed to speak up.  What
21       is stopping them?
22   A.  I will give you one citation: the fear factor.
23   Q.  Who is afraid of what, Mr Zeelenberg?
24   A.  I gave you one citation: that is the fear factor.
25   Q.  In paragraph 203 you suggest that relations between the
page 143
 1       bureaux would be soured if they continue to co-operate
 2       with Glasgow.
 3           What are you suggesting there?
 4   A.  I was aware of the very fact and again this is my
 5       assessment before the joining of these groups, so to
 6       say, or bureaux, Aberdeen was speaking out against the
 7       identification, Lothian & Borders were speaking out
 8       against and if there is no reconciliation it's my
 9       assessment that will sour the relationships.  You have
10       to open it up.  That was my assessment.
11   Q.  Can you have a look at paragraph 206 for me, please.  It
12       says:
13           "Those people that investigated the original
14       material and have made up their mind will probably never
15       reverse themselves.  Whether this is a competency issue
16       or a psychological one remains difficult."
17           So my clients and those others who support the
18       identification are either incompetent or have
19       psychological issues, in your view.
20           Is that your evidence?
21   A.  What I say is that whether they are not able to admit
22       what is so obvious I cannot be the judge of what the
23       problem is.  I just indicate some areas but I cannot
24       tell.  The reasons cannot be found in the fingerprint.
25   Q.  Paragraph 208 refers to experts within SCRO who have
page 144
 1       been under pressure and walking on eggs.
 2           Do you mean by that that they have been avoiding
 3       telling the world that they agree that the
 4       identification of Y7 is incorrect?
 5   A.  Yes.
 6   Q.  Who are they?
 7   A.  I cannot tell.
 8   Q.  How has any pressure on them been exerted when our
 9       clients were suspended and eventually their employment
10       was brought to an end?
11   A.  I don't see the relationship.  But I know for a fact
12       that there are people in there that are unable to speak
13       and I cannot name because I will put their position in
14       jeopardy.
15   Q.  Who is it that is exerting the possession then if you
16       won't name those that are subject to it?
17   A.  I don't know and if I would know I would not tell.
18   Q.  How are they exerting pressure on these individuals that
19       you won't name?
20   A.  I don't think I'm going to answer that.
21   Q.  Mr Zeelenberg, are you not just casting aspersions?  Are
22       you not just saying that there are individuals out there
23       who don't agree with this identification but they are
24       afraid to speak?  I'm not going to tell you who they
25       are.  I'm not going to tell you why they are afraid to
page 145
 1       speak.  Is that not the position you are adopting right
 2       now?
 3   A.  No, what I am saying here is -- and if you read it this
 4       was a kind of a prediction what was going to happen and
 5       I have got clear signs that it is still going on.
 6       That's what I am saying.
 7   Q.  What are those signs, Mr Zeelenberg?
 8   A.  I really -- I have confidential contacts with some of
 9       the people and I know that it is going on.
10   Q.  If you are not prepared to give evidence about it, Mr
11       Zeelenberg, why put it in your statement?
12   A.  Because I think that it is important to analyse and to
13       really see that what is going on.
14   Q.  I will move on.
15           Paragraphs 209 and 210 refer to the McKie case being
16       buried.  The case has been discussed in a massive number
17       of fora over the last ten years.  How has it been
18       buried?
19   A.  The present position of the SPSA is -- and even I have
20       spoken to people in there, they are not even allowed to
21       use Y7 for training purposes.
22   Q.  That hardly constitutes the case being buried, Mr
23       Zeelenberg.  I mean, the present proceedings are
24       evidence that the case has not been buried; is that not
25       correct?
page 146
 1   A.  No, but the problem is not outside the SPSA.  I was
 2       talking about the problems within the SPSA and at
 3       present experts which are in the SPSA are forbidden to
 4       study Y7.  It's not used in training purposes.  That is
 5       what I'm talking about.
 6   Q.  But you are not willing to tell us who those experts
 7       are; you are not willing to tell us how those experts
 8       are being pressurised into not speaking about Y7; and
 9       you are not willing to tell us by whom they are being so
10       pressurised?
11   A.  It's not about willing.  I will correct that.  I think
12       it's not in the interests of the people I'm talking
13       about if on the matter of training I have it from Joanne
14       Tierney myself that she was not allowed to use the
15       fingerprint for training purposes.
16   Q.  Paragraph 211 of your statement goes on to say that the
17       only lesson learnt will be that if you make a mistake,
18       keep denying it and cover it up you can get away with
19       it.  Our clients have lost a great deal, and you have
20       recognised that in your evidence, through their
21       adherence to the identification of Y7.  Mr Graham, I
22       have already referred to, has spoken to perceived
23       threats.  Mr Swann and Mr Leadbetter have spent a
24       significant part of the last 12 years fighting
25       complaints.
page 147
 1           Under what circumstances does any of that amount to
 2       getting away with it?
 3   A.  Well, I think there's still people within the SPSA
 4       that's uphold that it is an identification.  There's
 5       nothing done against it and what I say is there's still
 6       no investigation from the SPSA into the matter, into the
 7       real causes.  They really refuse to do that and I could
 8       take again the example of the Mayfield case.  The
 9       example is there and it is not that difficult.  It may
10       be cumbersome; it may be hurtful; but it has to be done.
11   Q.  You make reference in the next part of your statement to
12       the international fingerprint community.  Paragraph 217
13       states that the international fingerprint community is
14       still waiting for the matter to be resolved.
15           Are there not thousands of cases taking place daily
16       in courts around the world involving fingerprint
17       evidence?
18   A.  Yes, there are.
19   Q.  So are you not overstating the anticipation amongst the
20       international community somewhat?
21   A.  No, definitely not because -- let's disregard what's
22       going on in Scotland but in the rest of the world, take
23       any recent paper on fingerprints, any recent study on
24       fingerprints from the NAS report or whatever of the OIG,
25       they are all referring to the McKie case as a negative
page 148
 1       example how it is handled and as an example that you
 2       should not trust fingerprints.  That's the basic
 3       underlying tone I must say -- so we all suffer.
 4   Q.  Is it not simply a case of a group of experts
 5       admittedly, but experts from different countries around
 6       the world, lobbying to make sure that Y7 is identified
 7       in a way that agrees with their opinion?
 8   A.  Well, if you see it that way.  I think we have seen the
 9       evidence.  All the experts, they are not lobbying
10       against -- why would they lobby against Scotland?  Why
11       would they do that?  It is just a professional matter.
12       The fingerprint is not from Shirley McKie.
13   Q.  If it is of that much importance to the international
14       community at large, Mr Zeelenberg, why are there others
15       who are not co-operating with this Inquiry?
16   A.  Who do you mean?
17   Q.  There are other international experts who have been
18       asked whether they wish to participate and they have
19       refused to do so.
20   A.  Well, there may be reasons for that and one of the
21       reasons is some of their organisations will not allow
22       them -- one of the things is you go against the
23       brotherhood of the police.  Bell ringers are not very
24       popular.  I've got my share of it and they may just be
25       reluctant to come here by the way they are treated or
page 149
 1       exposed in the media.  I don't know, but I think there
 2       are a number of reasons.
 3           The other thing is I have suggested it many, many
 4       times from the very beginning the management of the SCRO
 5       could have asked the assistance of New Scotland Yard
 6       officially, "Please, tell us what is your opinion", and
 7       the case could have been resolved in 1998 and could have
 8       been resolved with a bunch of flowers and sorry and now
 9       we are here.
10   Q.  Paragraphs 227 to 231 suggest that if SCRO do not
11       consent to the release of the original material into the
12       public domain they are encouraging speculation that the
13       material given to those giving evidence to Justice 1
14       cannot be relied upon.
15           Is it not the case that if the original material
16       were widely released that speculation would be
17       perpetuated?
18   A.  I don't see why.  I have stressed to Mr Mulhern, please,
19       release the material and can it be discussed in
20       professional circles.  The science should rule, the
21       science and nothing else.
22   Q.  If you release the material to a much wider community of
23       experts and you exercise no control over the manner in
24       which they examine that material, in fact you are not
25       aware of the manner in which they examined that
page 150
 1       material, does that not allow them to be criticised?
 2       Does that not perpetuate debate?
 3   A.  I think debate is one of the essential elements of
 4       science but I think in other sciences, provoking
 5       discussion and issuing material and, as it is, via the
 6       Internet and new communication means and with, say,
 7       conferences the world is internationalising and that is
 8       to the benefit of our profession and I think we should
 9       use those modern means to profit from it.
10   Q.  Paragraph 232 suggests that:
11           "The cloud of suspicion over Shirley McKie and David
12       Asbury remains because with the disputed print the
13       impression is maintained or at least condoned that both
14       parties could be right."
15           Is it not the case that should a conclusion not be
16       reached the notion that both parties could be right is
17       not being entertained, rather that one party is right,
18       that the state of expert opinions is such that it cannot
19       be determined which?
20   A.  No, I think that -- and one thing we agree, both the
21       SCRO experts and our experts -- that not both parties
22       can be right and I think that that was explicitly
23       stated.
24   Q.  Can you have a look at paragraph 235 for me, please.  It
25       states that:
page 151
 1           "The old strategy of SCRO management decide for the
 2       experts what to say, never give in, and discredit
 3       opponents and material, is effectively continued."
 4           What evidence do you have that SCRO management tells
 5       staff what to say regarding identifications?
 6   A.  I think that from the very beginning the SCRO staff and
 7       others from Lothian & Borders were not allowed what they
 8       thought about the material.  We were openly discredited
 9       on television and other things that we were incompetent
10       by using the Internet material and I think this strategy
11       is just continued and what HMIC was calling for was
12       accountability, transparency and I think that's never
13       effected.
14   Q.  You said yesterday that the history will prove you
15       right.  In fact, I think you said it again today.  If,
16       hypothetically, if this Inquiry were to find that Y7 was
17       the mark of Shirley McKie, would you consider it fair to
18       say or for people to accuse you of bad practice or would
19       you just say that you were an expert giving your honest
20       opinion?
21   A.  I would say that I'm an expert that gave my honest
22       opinion.  I cannot say anything else.  I will never
23       believe the outcome will be any different than it has
24       been so far.
25   MR HOLMES:  I have no further questions, sir.
page 152
 1   THE CHAIRMAN:  Yes, have you any ...?
 2   MR MOYNIHAN:  Yes, there are two, one of which is an
 3       omission by me.  I spoke to Mr Zeelenberg earlier but it
 4       is a point that may be of interest.
 5   THE CHAIRMAN:  Yes.
 6                    Re-examined by MR MOYNIHAN
 7   Q.  Mr Zeelenberg, with apologies to all concerned the one
 8       matter that I failed to pick up was the reference to the
 9       individual who committed suicide.  It wasn't in fact
10       that but it was that area.  What I want to ask you about
11       is not the past but in the realms of lessons that we
12       learn going forward.
13           There is a paper that is before the Inquiry that I
14       would ask you to look at.  It is SG0916.  You will see
15       that this is the note of a meeting in January 2007 of
16       the international experts meeting, perhaps in December
17       of the preceding year.  Within that, if I turn to
18       page 3, electronic page 3, it is discussing
19       verification.  The part that I am interested in begins
20       in the last two lines on page 3 and if I bring up
21       page 4.  If we could highlight the last two lines and
22       also the continuation under the paragraph on the
23       following page and perhaps enlarge those so people can
24       see.
25           What it actually says is:
page 153
 1           "The recording of errors was discussed and it was
 2       acknowledged that this is an area that is problematic
 3       throughout the UK, with no standardised approach across
 4       bureaux.  Moreover, there was no standardisation of how
 5       errors by experts were dealt with.  There was sense that
 6       errors tended to be addressed through a disciplinary
 7       process rather than as a training need.  In particular,
 8       in Scotland errors by trainees tended to be recorded as
 9       such rather than being recognised as part of the
10       training process."
11           Were you part of the meeting of international
12       experts of which this forms part?
13   A.  When was it?
14   Q.  It would be December 2006?
15   A.  I cannot recall but it may be that I was present.  I
16       don't know.
17   Q.  It is perhaps more important then that the theme -- you
18       have been discussing through evidence in particular with
19       me the question of culture?
20   A.  Yes.
21   Q.  If we are going forward in a positive way, let us not
22       look at the past about complaints and people feeling
23       they can't come forward, is there in the UK -- not just
24       in Scotland but in the UK -- a problem that because
25       errors are perceived as a disciplinary matter it may
page 154
 1       inhibit people even disclosing that an error has been
 2       made?  Is that a problem that you recognise?
 3   A.  I cannot speak for the whole of the UK but just in
 4       general terms if -- you have to refine what is an error.
 5       If you have situations somebody says, "I have identified
 6       it" and you deem it insufficient, then you err.
 7           Then the mistake would be then that we assume that
 8       one is right and the other one is wrong.  Since we don't
 9       know the ground truth, you have to be very careful
10       because you could just differ of opinion about
11       sufficiency and that you have to guard very care because
12       the most careful one may be the one to challenge rather
13       than the more incautious one.
14           I have seen cases or procedures -- I don't know what
15       the present situation is -- in which such a situation if
16       two were in agreement that it was an identification and
17       the other one was more cautious that he was going to get
18       a yellow card and reported.  I find it very, very
19       unfortunate and not really contributing to the good
20       culture because you cannot call it a mistake.  There are
21       not that many mistaken identifications, not in any
22       bureaux, and I think I would rather see it or encourage
23       people to say where they go wrong.  I mentioned today of
24       one of our experts that went wrong and was caught on
25       verification.  He has learnt so much from it that he,
page 155
 1       from that day onward, was a better expert.  Rather than
 2       to punish him, we see it as a training matter -- even
 3       real mistakes.
 4   Q.  Again, from the point of view of learning lessons.  From
 5       your exposure to SPSA as part of the international
 6       panel, is this something that even today remains an
 7       issue within SPSA, people being disinhibited from open
 8       discussion because of an apprehension that it might
 9       escalate into disciplinary proceedings?
10   A.  I don't know the real detail at present but I think that
11       they talk about conflict resolution and I'm really not
12       so happy with the word "conflict" because there is a
13       difference of opinion about certain matters and I think
14       in general I would say you have to be very, very careful
15       how you handle these things because in the past I know
16       that I talked about hidden messages.
17           Let me take one.  If you have a trainee and he comes
18       forward with an identification, so to say, and said I
19       found let's say 15 points and then the boss is looking
20       at it and say "I find 18".  The hidden message is if you
21       grow up, you can find as much as I can.  We have to be
22       very careful with these hidden messages.  If you get any
23       situation in which two people agree and the other
24       disagrees about sufficiency, then if he is in some way
25       getting the idea that he is out of line, he will try to
page 156
 1       be in line the next time and he will adapt to the higher
 2       grade or the lower standard.
 3           In general, I think it's a very sensitive issue, let
 4       me say it like that.
 5   Q.  Just an issue then that we will keep our eyes on.  Is
 6       that something that you would suggest we need to look
 7       at?
 8   A.  Yes.
 9   Q.  The second point which arose out of some question about
10       the Evett and Williams report -- but I am not going into
11       the Evett and Williams report -- but at page 131 of the
12       transcript, you mentioned a need for a descriptive model
13       to define a point of similarity.  In the past I have
14       asked people about an objective standard that might
15       judge sufficiency and a number of individuals -- it has
16       become a recurring theme -- have told me it's not
17       possible to have an objective standard for what is
18       essentially a subjective question.
19           First of all, do you think there is any prospect of
20       an objective standard by which one could judge the
21       correctness of a fingerprint identification?
22   A.  We will never arrive at total objectivity -- I think we
23       would never -- but the term descriptive model and
24       decision-making model comes from two professors in the
25       Netherlands who have studied certain types of forensic
page 157
 1       material like lip prints, ear prints, footprints and
 2       fingerprints and they came with a kind of different
 3       paradigm that they said, "If you operate in this
 4       atmosphere, then you should go for a descriptive model
 5       and a decision-making model in order for you to be able
 6       to control the whole of your process."
 7           If we look at the documents from the Interpol
 8       European Expert Group on Fingerprinting, we have tried
 9       there to describe this decision-making model and
10       descriptive model and the OIG, in his study of the
11       Mayfield case, said what we see is that to our
12       assessment that the whole process is much too intuitive,
13       they talk about gut feeling and they said look at what
14       the documents of Interpol say about it and take examples
15       because they are much more explicit, you could learn
16       from that.  So I find that it was -- I was proud that
17       the OIG referred to the document, yes.
18   Q.  So would your conclusion be that in the existing
19       Interpol guidance we can find that descriptive model or
20       do you think further work still requires to be done?
21   A.  It's never done but I think that the Interpol
22       documents -- and I was heavily involved in that, in the
23       writing of it and it reflects much of what we do in the
24       Netherlands -- can be a very good step up to really get
25       hold of what you were doing in practice, yes.  It's
page 158
 1       never full.  We still develop it in practice by
 2       discussing things and you always get these new rules of
 3       thumbs in place.
 4           Let me give one example.  A point which you
 5       initially think it is a dissimilarity and people say, "I
 6       can explain it" and now they mark it as a similarity.
 7       We say, "No, the rule is you had a problem because you
 8       thought it was a dissimilarity and once you have
 9       explained it, you can now not say fairly that it is a
10       similarity."  So it's very simple rules of thumb and
11       that can assist you in your decision-making.
12   MR MOYNIHAN:  Sir, that completes the questions I was going
13       to ask.
14   THE CHAIRMAN:  There were just a few random points you can
15       assist me with.
16           You said that your examiners wouldn't know any facts
17       at all.
18   A.  No.
19   THE CHAIRMAN:  Does that mean if, for example, a print was
20       taken from a piece of wood they wouldn't know that that
21       was the background to it?
22   A.  Well, yes, that's one of the exemptions -- exceptions,
23       sorry.  What they will see on the paper that is with the
24       case, with the folder, the substrate on which it is
25       found and the detection technique and if they see the
page 159
 1       need to go back to it then it will be available, not all
 2       the time because most of the work we have nowadays is
 3       digital photography.  But, yes, that they would know,
 4       yes.
 5   THE CHAIRMAN:  But what they wouldn't know is in QI2 the
 6       message -- if that is the right word -- that was
 7       attached to it said, "ident [meaning identity] required
 8       for Marion Ross".
 9           There are explanations for that, one being that
10       there were three prints, that one person's had already
11       been identified and to show which one was wanted but
12       that wouldn't happen with your experts?
13   A.  No.  In the old process, of course, if you get a folder
14       with a fingerprint to be examined then you know that the
15       purpose would be comparison and coming to a conclusion.
16           In the new process it will be even more blind and
17       more distant but you cannot avoid, if you give a
18       fingerprint expert two fingerprints that are alike, then
19       he can only conclude that the suggestion that he has to
20       compare it.  You cannot avoid it.
21   THE CHAIRMAN:  I apologise for jumping round various things
22       but it is just collecting up a few points that are of
23       interest to me.
24           We have been given evidence that a machine, which
25       you may be familiar with, called a comparator was used.
page 160
 1       That was at the end, except when they conducted what is
 2       called a blind test or was described by some as a blind
 3       test.  With the comparator of course you are looking at
 4       both together.  Unless you have used the system which
 5       you prescribe, which is that you lock what you have seen
 6       on the latent print, then I presume you would agree that
 7       there is a danger, even at a late stage, that you would
 8       naturally begin to translate points --
 9   A.  Oh yes, yes.
10   THE CHAIRMAN:  -- from the ten-print to the latent?
11   A.  Yes, I agree.  I think the fingerprint comparator in the
12       old days without computers was an improvement upon using
13       the glasses and just pointing on small things.  But we
14       have purchased a fingerprint comparator, I think
15       25 years ago, and I find it a horrible machine because
16       it's kind of -- with the met-glass that's underneath,
17       it's kind of obliterating what you see.  It doesn't make
18       it clearer and the other thing is that you have to mark
19       your points in the analysis and you cannot wipe them off
20       and preserve them.  That's why I didn't use them for
21       HMIC purposes because I could not have preserved my
22       findings there.  You have to wipe it clean and stay
23       again.  I didn't like the machine.  In those days we
24       already used computers to compare images and to save
25       them.
page 161
 1   THE CHAIRMAN:  When you were looking at QI2, you pointed to
 2       thickening -- one ridge was thicker than another.
 3       Earlier in the Inquiry, questions were asked about
 4       whether using superglue that some of it can adhere and
 5       give the impression of thickening that isn't actually
 6       there.  What are your views about that?
 7   A.  I think that, yes, in general the detection technique
 8       matters because one of the detection techniques may
 9       adhere to the fatty substance and other techniques may
10       adhere more to the moisture and things can be dried out.
11       But I think that I will be inclined to say that the
12       generic process that is applied would then apply to all
13       of the pieces of the finger in the same way so that not
14       one ridge would be thicker than the other one.  It will
15       be kind of a generic process --
16   THE CHAIRMAN:  Other ridges would be affected in exactly the
17       same way?
18   A.  Yes.
19   THE CHAIRMAN:  I should say at once that it was not a
20       fingerprint expert and my recollection -- and it was a
21       long time ago in the Inquiry -- was that a Scenes of
22       Crime Officer suggested that the fingerprint looked like
23       that of a woman or a child because it was so small.  You
24       have demonstrated that this is a very small part of a
25       print.
page 162
 1           Is it possible to express any view as to whether it
 2       is the print of a small finger or a large person's
 3       finger, if I can put it that way?
 4   A.  You know, it was probably -- I don't know who said it --
 5       an older expert with all due respect because when I was
 6       in this job and we had to search fingerprints, you had
 7       to do your best estimate as what the source was because
 8       you had to search for hours and hours over there.  So
 9       you wanted to know, to guess what finger it was, whether
10       it was a woman or whether it was a child so you don't
11       search.  I must admit that when I'm looking at a
12       fingerprint it came to me and said it could be a woman
13       or a child, yes, because of the tininess.  But you can
14       be very, very wrong there because there may be people in
15       the room with very small fingers, with very fine lines.
16       So there's no certainty.
17   THE CHAIRMAN:  In fairness to the witness, I don't think he
18       was holding himself out as being an expert but saying
19       his impression was that it was a very small print and
20       therefore could be that of a woman or a child.
21   A.  That cannot be excluded -- definitely not, no.
22   THE CHAIRMAN:  When you work on the AFIS system, are you
23       drawing on fingerprints from within the Netherlands or a
24       much wider group?
25   A.  At present we are able to search our own collection.  We
page 163
 1       can of course use Interpol channels to have wider
 2       circulation.  I have been heavily involved with the
 3       workings on the Prüm Treaty -- that is a town in
 4       Germany -- and that has now facilitated the exchange of
 5       DNA, fingerprints and licence plate numbers on a regular
 6       basis.  We would then be able -- the technique is there,
 7       the treaty is there, then I would be able to be behind
 8       my computer and say "search this one in France and
 9       Germany" and the whole of the European Union in the end.
10   THE CHAIRMAN:  Better restrict it to the Netherlands alone:
11       can you give any idea of roughly how many would be
12       thrown up as being even in the approximate area of a
13       particular print?  Could it be sometimes hundreds,
14       sometimes ten or --
15   A.  The point is you decide for yourself what the length of
16       the candidate list is.
17   THE CHAIRMAN:  I see.
18   A.  That's what you decide for yourself.  What you can do is
19       you can set thresholds that if the second or the third
20       or the fifth one is so much per cent lower than the
21       former one, then the likelihood of this being a match
22       can be ... so that's a learning process, I would say.
23           But in normal days we would use a candidate list of
24       20.  If we do reverse searching, like new ten prints
25       coming in, looking at old latents in the database, we
page 164
 1       would have a list of about ten and under the Prüm Treaty
 2       we would only exchange the candidate list of five.
 3   THE CHAIRMAN:  So one cannot, as it were, say there may be
 4       15 people with prints that are even in the roughest
 5       area of a particular one because it just depends how you
 6       set the test?
 7   A.  Yes.  Maybe just to enlighten you on upon that, what we
 8       see is that the accuracy of the fingerprint computers
 9       become much, much better.  So then we start learning
10       that with the majority of latents that we search, the
11       candidate will be found within the first ten and with
12       ten prints we see there's an accuracy above 99 per cent
13       the candidate is always on the first place.
14   THE CHAIRMAN:  On another quite different point, I gather
15       that the population of the Netherlands is about
16       16 million and the population of Scotland is about
17       5 million, higher than 5 million now, I think.  Your
18       system that you have put in must be quite
19       expert-intensive and you require a large number of
20       experts?
21   A.  No, I think we are a rather small organisation.  I think
22       we have now ten latent experts only and there are some
23       in the country and with the overhaul, it will all be one
24       organisation with remote locations, seven remote
25       locations and I think on the latent level there will be
page 165
 1       20 or 30 experts in the Netherlands in total.
 2   THE CHAIRMAN:  In the entire Netherlands for a 16 million
 3       population?
 4   A.  Yes.
 5   MR SMITH:  Sir, I wonder if I could just ask a question to
 6       try and help the Inquiry.  I think it may be important
 7       in that regard.
 8           Mr Zeelenberg, insofar as the database is concerned
 9       that you use in the Netherlands does that include
10       fingerprints taken from persons entering through
11       Schiphol Airport?
12   A.  At present, the system is also containing fingerprints
13       of immigrants but they will be taken out.  It will be
14       just a criminal database.  The discussion is always
15       going back and forth but that will be taken out and it
16       will be a separate database.
17   Q.  But at the present time it includes people who come into
18       Schiphol, perhaps claiming political asylum, and they
19       are checked to see if they have presented themselves
20       before with a view to deciding whether to send them out
21       of the country.  Is that correct?
22   A.  Yes.  It's not only Schiphol.  There are many asylum
23       points where they can apply for asylum over the
24       Netherlands.  What we try to do is of course in the
25       early days check whether they are genuine asylum
page 166
 1       seekers, have not had previous criminal involvement and
 2       also of course under the Dublin treaty we try to find
 3       out whether they have applied in other countries before
 4       and we do that via Eurodeck.  Eurodeck is the European
 5       system for asylum seekers and I am proud to say that I
 6       am the initiator of that and also gave it the name of
 7       Eurodeck.
 8   THE CHAIRMAN:  I very recently discovered as you go into the
 9       United States they take your ten prints very quickly
10       also.
11   A.  That's the Homeland Security system.
12   THE CHAIRMAN:  There were two last things I wanted to just
13       touch on.  One has been recently discussed about the
14       Evett view.  My impression on reading that -- indeed,
15       more that my impression -- is he is saying really that
16       the Dutch and the German bureaux are more cautious than
17       perhaps the United Kingdom is.  You would agree with
18       that, would you?
19   A.  Yes.  At that time definitely when he was doing that.  I
20       have nothing to say any different than he was right in
21       his findings, yes.
22   THE CHAIRMAN:  You will be familiar with the National
23       Academy and their recent report.  I hope I quote it
24       correctly but they said:
25           "Uniqueness doesn't guarantee that points from two
page 167
 1       different people are always sufficiently different that
 2       they cannot be confused.
 3           That is a statement that I have just quoted from
 4       there.  My understanding of your evidence is that Y7 is
 5       sufficiently different that it cannot be confused.  Is
 6       that your position?
 7   A.  With the fingerprint from Shirley McKie?
 8   THE CHAIRMAN:  Yes.
 9   A.  Oh yes, definitely.
10   THE CHAIRMAN:  And QI2.
11   A.  That is to the point of the exclusion.  I have no doubt
12       this is not coming from the finger of Marion Ross
13       whatsoever and you cannot confuse it, no.
14   THE CHAIRMAN:  So neither of those prints comes within that
15       description in your view?
16   A.  No, because it is an exclusion rather than an
17       identification.
18   THE CHAIRMAN:  One absolutely the last point I want to raise
19       with you is you have referred to Brandon Mayfield and
20       the attitude of the FBI and the way they reacted.  Would
21       you agree that there is an important distinction which
22       is that in that case they knew ultimately whose
23       fingerprint it was?  Here in this case we don't know who
24       the owner -- if you are correct, we don't know who the
25       owner of this fingerprint is and I suggest to you that
page 168
 1       is quite an important distinction for those who are
 2       being asked to acknowledge that they have got it wrong.
 3   A.  Yes, I fully agree with you that -- I must be very
 4       careful here, but the fact that the Spanish police found
 5       another possible donor for this print, that it was very
 6       instrumental for them to change their mind, yes, and
 7       that was beneficial to them, yes.  I would say so, yes.
 8       It's a good observation, yes.
 9   THE CHAIRMAN:  That concludes all I have to ask you but what
10       I would like to do is to thank you for assisting me with
11       this Inquiry and, whatever the outcome, I would like to
12       thank you for the trouble you must have taken over your
13       description of your views in the early part which was,
14       as I said earlier, we thought our IT was very good but I
15       must say yours was extremely good.  Thank you very much
16       indeed.  So that neatly I think brings us to 4.00 and we
17       will sit again at 10.00.
18   MR MOYNIHAN:  Yes, sir, with Mr McLeod.
19   (4.00 pm)
20        (Adjourned until 10.00 am the following morning)
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