page 1 1 Thursday, 15th October 2009 2 (10.05 am) 3 MR MOYNIHAN: Sir, before I call Mr McKie, the one point I 4 had to tidy up was, as I mentioned to you at the end of 5 last week, an error I had made in relation to 6 Mr Wertheim's evidence about the Rosetta characteristic 7 and the reference for that which you had asked was on 8 6th October at page 41 of the LiveNote transcript. 9 Sir, with that introduction the next witness is 10 Mr McKie. 11 IAIN ARTHUR JAMES MCKIE, sworn 12 THE CHAIRMAN: We probably have your full names but just so 13 we have them on the record can you give them again. 14 A. Iain Arthur James McKie. 15 Examined by MR MOYNIHAN 16 Q. Good morning, Mr McKie. 17 A. Good morning, Mr Moynihan. 18 Q. You have provided the Inquiry with two statements that 19 you have prepared yourself. 20 A. Correct. 21 Q. Obviously, as you are aware, some of the passages will 22 not appear in the published version essentially because 23 they are not relevant to the Terms of Reference. 24 A. Yes. 25 Q. However, subject to that, you are content that you have page 2 1 set out to the best of your recollection a true account 2 of the matter? 3 A. Yes. 4 Q. What I want to do, Mr McKie, is not to go through the 5 detail of your extensive statement, rather just to pick 6 a few important points. 7 The first one I want to begin with is in your first 8 statement, part 1 (that is FI0181). If I pick up 9 paragraph 12 of that, this is the part where you speak 10 of the desire for truth and reconciliation, all parties 11 accepting the findings and moving on with their lives. 12 That is your desire? 13 A. It is my heart-felt desire and it's my reason for doing 14 what I've done and submitting the evidence I have 15 submitted. We all need, in my opinion, an end to this 16 and the best end would be the truth was on the table. 17 I don't think it's a question of right or wrong. I 18 think it's a question of establishing the truth to 19 everybody's satisfaction and letting us all move on 20 because it's been a long, long trail. 21 Q. One of my points I would like to ask you about that is 22 that for some of the officers, the Fingerprint Officers 23 who have been involved in this, some of them no longer 24 practice in fingerprints. However, you have a number of 25 references peppered through your part 1 to three page 3 1 officers who do still continue to practise. 2 What I am just wondering is, in relation to them 3 moving on and getting on with their lives, what your 4 position is in relation to them? 5 A. My position is that if we all speak the truth then 6 everyone can move on with their lives. I hold no -- 7 I've no axe to grind with any of these people at all on 8 a personal level. It's not been a great 13 years for 9 them or for ourselves and I just feel much more 10 important in this whole affair is learning the lessons 11 and there are many lessons I believe to be learned. 12 To some extent of course I believe that their future 13 is in their own hands, not in my hands at all and I 14 think that they need to take cognisance of that as well. 15 Providing everyone speaks the truth in this, I have no 16 axe to grind with them at all and certainly I have no -- 17 I'm not a judge in this at all. My role is to give my 18 statement to the Inquiry and to leave it to that. It's 19 up to the Inquiry itself to come to these conclusions. 20 Q. One of the points you make in your statement is that you 21 think Y7 should be used as a training exercise. 22 Would you accept that at the moment that is, at this 23 precise point, premature because, first of all, one 24 needs to know whether it's been correctly identified or 25 not and that requires to be definitively determined? page 4 1 A. I think my position, as I've probably said in my 2 statement, slightly different. I believe from my point 3 of view -- I've got to stress that -- I believe I know 4 the truth of Y7 and I've laid out the reasons why I 5 believe that. So I think from my point of view that's 6 slightly different but I do accept that a judicial 7 decision by this Inquiry of course is extremely 8 important. 9 I still believe that there were lessons that could 10 have been learned from Y7 and from QI2 and perhaps the 11 animosity that's developed and the side-taking that has 12 developed could have been prevented. I still believe 13 there's a big part to play in training in the future and 14 I'd like to think -- I mean, I've made mistakes and will 15 continue to make mistakes and I would like to think I 16 could face these mistakes and move on and that's what I 17 hope will happen. 18 Q. I imply no criticism but obviously in relation to the 19 argument, as you have said, you come from one side and 20 you argue that forcefully. There is an opposing side 21 and this is the first proper opportunity for the two 22 sides to put their case and for it to be determined. 23 A. I think that's exactly right, yes. 24 Q. Obviously, insofar as the three existing officers are 25 concerned, first of all, one would need to know what the page 5 1 judicial determination is in relation to Y7; is that 2 correct? 3 A. Of course, yes. 4 Q. More importantly, one would need to know what lessons 5 ought properly to be learned from that? 6 A. Absolutely. 7 Q. Indeed, in the first instance, it would then be for each 8 of those three officers to assess his own position in 9 the light of the determination? 10 A. Correct. 11 Q. Indeed, thereafter it would be a matter, should any 12 issue arise, for their employers to determine? 13 A. I do believe that. I would like the officers and their 14 employers to take this matter -- and this is not my 15 business at all and to some extent, reviewing the 16 statements that I've given, I can realise that I have 17 been forceful and a minor part of regret in that, but 18 that's the way it was. I stand by the statement I made 19 at the very beginning of truth and reconciliation. I 20 really, really believe we've got to move on -- all of 21 us. 22 Q. The next point, really just building on from that, you 23 have in your statements made reference to the fact that 24 if one turned the clock back you would have wished there 25 to have been an open, professional debate about Y7 based page 6 1 on images of unquestioned authenticity? 2 A. Yes. 3 Q. Would you acknowledge for me that, again, if one is 4 looking at this from the outside of course it is fraught 5 with difficulty about confidentialities on all sides? 6 A. Yes, absolutely. 7 Q. Indeed, some of the officers who are involved, some of 8 the Fingerprint Officers primarily involved, may have 9 had a difficulty in that they were inhibited by virtue 10 of their duties of confidentiality, inhibited in 11 participating in a public debate? 12 A. I think that's partially true. However, I think it's 13 totally wrong to say that there was no opportunity for 14 the truth to be spoken in this. There were many 15 opportunities for the truth to be spoken and, in my 16 opinion, it wasn't spoken. 17 So, while I agree to some extent, I still believe 18 along the way, from the very beginning, when the trial 19 ended on 14th May 1999, there was the opportunity then 20 for us all to sit back and reflect on what had happened 21 and my problem is that we didn't do that. Not only did 22 the experts not do that but the authorities did not do 23 that and, as my statement says, I to some extent hold 24 the authorities as responsible as I do experts. 25 Q. Can I therefore look at that particular point. One way page 7 1 I have of focussing is to look at the first opportunity 2 that there was for a reflection on the outcome of your 3 daughter's trial. 4 First of all, before I do that, if I can just pick 5 up one of the points you yourself made. It is in 6 paragraph 45, page 7 of your statement. If you allow me 7 just a second, Mr McKie, I will bring it up. It is 8 FI0181. 9 In paragraph 45 you are speaking of a time prior to 10 your involvement with Mr Wertheim, therefore down to 11 about March 1999, when even you say: 12 "It has to be remembered at this time we were not 13 claiming that the SCRO experts were wrong in identifying 14 the print as Shirley's because our previous police 15 training had lulled us into accepting that such experts 16 were infallible and as 'scientists' displayed honesty 17 and integrity. The various double-checks we believed 18 had been carried out only strengthened our conviction 19 that while the print was hers something must have gone 20 seriously wrong. Our sole focus was on the belief that 21 the print, although hers, must have been forged or 22 placed in the house accidentally or transplanted there 23 by persons unknown -- probably by other than the 24 experts." 25 A. Yes. page 8 1 Q. So what we have to accept is even in the cauldron of 2 pressure that was in the lead-up to your daughter's 3 trial for perjury, you, in common with many of the 4 others involved in this particular matter, had a firm 5 belief in the infallibility of fingerprint evidence. 6 A. Yes, I did. 7 Q. Reinforced in this particular case by the fact that the 8 officers had been asked to check and recheck the 9 fingerprint and had come back with the same opinion. 10 A. Absolutely. 11 Q. As I understand it, not only you, your daughter and some 12 of the other police involvement in this to adopt that 13 approach, that the fingerprint evidence was infallible, 14 put you, as a very senior retired police officer, in an 15 invidious position involved by implication a serious 16 allegation that others, not necessarily police officers 17 but others, had forged evidence in the case? 18 A. That was the only place for us to go at the time. I 19 really did believe -- I had been in CID and I've said 20 before when we found a fingerprint that was the end of 21 the case and that stuck with me so much. But there were 22 so many mysteries surrounding this. I believed my 23 daughter was telling the truth, I believed that the SCRO 24 were honest people and I believed that the police 25 basically were honest people and can you imagine just a page 9 1 few weeks before my daughter's trial and we have no 2 evidence at all, we have no witnesses, no experts at all 3 to tell us that and it wasn't until Pat Wertheim 4 appeared on the scene that we finally realised what the 5 truth was and, please believe me, it came as an almighty 6 shock. 7 Q. I am grateful to you because the shock, in a sense, then 8 all the fog cleared from your perspective -- 9 A. I didn't catch that, sorry. 10 Q. The shock was that the fog cleared and all of a sudden 11 it became clear for you the problem arose from a 12 mis-identification of the print? 13 A. Yes, unfortunately because we were only a few weeks from 14 the trial and you can understand the difficulty that the 15 advocate had in picking up that because Mr Findlay 16 himself, I believe, and I've had my moments with 17 Mr Findlay, that he believed in fact that fingerprint 18 evidence was infallible as well and he was doing his 19 best to represent my daughter. 20 When we discovered from Pat Wertheim and then David 21 Grieve that, in fact, it was wrong, I know from 22 Mr Findlay's writings how surprised he was and he 23 realised the severe impact that this could have on so 24 many areas of our life. We're both ex-police officers 25 and the impact of this was enormous at that time leading page 10 1 up to trial and we had to get, I suppose, our heads 2 together and try to look at what the defence was going 3 to be. 4 Q. Again, speaking of it as I am just now makes it sound as 5 if there is only one issue here at the trial ultimately 6 and that's the correctness of the identification of the 7 fingerprint. 8 You are critical of the meeting afterwards that took 9 place on 20th May; is that correct? 10 A. I am, yes. 11 Q. I wonder if you would accept from me -- and I will lay a 12 base for this coming back -- but would you accept from 13 me the clarity with which you see this case as being 14 only the correctness of the fingerprint evidence is 15 perhaps a simplification of it? If you looked at others 16 who were looking at this from outside to understand that 17 they've gone wrong, to concentrate solely on the 18 correctness of the fingerprint evidence is a 19 simplification? 20 A. It's a very big over-simplification and hearing some of 21 the evidence, oral and written that we've seen at this 22 Inquiry, its quite abundantly obvious that minds were 23 going in different directions but my position must be 24 that when you prosecute a police officer for perjury you 25 need to know what you are doing. My feelings are that page 11 1 this went wrong in many areas in the lead-up to my 2 daughter's prosecution. I mean, we know from previous 3 evidence that an independent -- I think it was 4 Mrs Greaves had suggested to her that or she had 5 suggested we should be looking for an independent 6 expert. There was forensic evidence led at my 7 daughter's trial. There were police officers on watch 8 on the house brought out as witnesses at my daughter's 9 trial. There was lots of evidence that actually turned 10 up, except for the fingerprint there was very, very 11 little evidence against my daughter and I suppose, if 12 we're talking about the time, of course I'm now looking 13 back on my recollections that have happened over the 14 years, there was a lot of evidence -- I still criticise 15 the prosecution authorities for the way they pursued 16 this. 17 I think possibly they pursued it with the arrogance 18 of infallibility as well because we've also noticed in 19 the statements the word "infallible" is used by more 20 than one of the lawyers involved in this. One of the 21 lessons I hope we learn from this whole affair is, in 22 fact, expert evidence is not infallible. 23 I don't want anyone to go through what we went 24 through. So while the simple answer is in my mind the 25 fog cleared, the fog should have cleared in the minds of page 12 1 the prosecutors long before that and they should not 2 have fallen into the trap of taking the evidence of 3 expert evidence as infallible. There was other 4 evidence, they had a responsibility to look closely at 5 that evidence and to assess it before they put my 6 daughter on perjury. 7 May I add it's a crime which is seldom prosecuted. 8 It's not a regular crime to prosecute. Against police 9 officers, it's not often prosecuted. I think there's a 10 duty on the Crown and a duty on the police to do their 11 job better. But, again, all I say is I hope the lessons 12 have been learned. 13 Q. If I may just pick up one of the phrases you have used 14 there, "the arrogance of infallibility". The fair 15 position is before Mr Wertheim's intervention there 16 would have been a consensus, yourself, your daughter, 17 the prosecutors and others, that fingerprint evidence 18 was indeed infallible. 19 A. Yes, I accept that. 20 Q. Whether that's right or wrong of course is an issue for 21 the Inquiry. Would it not be fairer to avoid using such 22 phrases as "the arrogance of infallibility" when in 23 fact, if it's wrong, it was a common fallacy that 24 everyone involved in the case shared? 25 A. No, I can't agree with you. I believe the word page 13 1 "arrogance" is perfectly put there. There's an expert 2 arrogance that I've notice in our courts over the years 3 and you can imagine over the last 13 years I've had 4 cause to look at many other cases involving experts and 5 the word "arrogance" fits the bill completely. 6 I think it also fits -- I'm not, in a perch of 7 sense, I'm not criticising people for looking at things 8 as infallible. I'm looking at a system which allowed 9 this to happen and I believe the whole system, from the 10 Crown Office down, the police were arrogant. 11 My daughter as far as I'm concerned was, if you 12 like, a little police lady and they didn't give it the 13 thought they should have gave it. All I hope is when 14 they approach expert evidence in the future -- and I've 15 got to say I don't necessarily see signs of that at the 16 moment -- that they will see things differently. So, 17 no, I believe that the word "arrogance" was chosen 18 carefully but it was not meant as a criticism of 19 individuals it was meant as a system thing. 20 Q. In looking again at the lead-up to the 20th May meeting 21 which of course, as you now know, was requested by SCRO 22 itself with a view to learn lessons, we in this country 23 by virtue of the Contempt of Court Act cannot ask the 24 jurors why they reached the decision they did but the 25 one insight we may get to the thinking was to look at page 14 1 what the judge charged the jury. My reason for looking 2 at what the judge charged the jury is to suggest to you 3 that the clarity with which you see things now (namely, 4 that the fingerprint evidence was wrong, full stop) was, 5 in fact, just one of the many points that the judge made 6 and, indeed, was quite far down the road that the judge 7 suggested, in his own inimitable style, a number of 8 simple answers that the jury might consider. 9 A. That's right. 10 Q. If we just look at them now, if I bring up the charge 11 that the judge made, CO1465. It is not long, at least 12 on this copy, mine begins at page 3. If we move through 13 the covering sheets to page 3, on my copy it is page 3 14 of 24. So it is a relatively short charge. If I take 15 you to page 12, I just want to look at pages 12 through 16 to about 20. 17 His Lordship is looking at the onus of proof which 18 of course is on the prosecution. Then at C he takes 19 up -- if I bring up pages 12 and 13, at page 12 letter 20 C: 21 "If you reach neither of these conclusions that's 22 not the end of this matter, it's merely the beginning 23 because the Crown must still thereafter prove to your 24 satisfaction that she is guilty, and that is where, in 25 the way Mr Findlay emphasised it to you yesterday page 15 1 afternoon, he is quite correct, to take his metaphor, 2 it's not an equal contest. The Crown must surmount 3 every hurdle that it places in its own way, quite 4 rightly, before you can establish guilt. And if any of 5 those hurdles -- and I'll just tell you in a few moments 6 what they are -- are not surmounted, then at each stage 7 the Crown case will fail completely and you must acquit, 8 bearing in mind that each hurdle has to be surmounted 9 beyond reasonable doubt." 10 So what his Lordship is saying is that there are a 11 number of hurdles that have to be overcome by the 12 prosecution. In fact, I just see the top of the page 13 the part his Lordship has preceded this with. If I 14 bring up digital page 12 and page 13, his Lordship had 15 begun at page 11 letter C by saying that he: 16 "... is not inverting the onus but common sense 17 might dictate to you and it's entirely a matter for you 18 that the first thing you might like to consider when you 19 retire is whether or not you believe Ms McKie on the 20 basis that she gave evidence to you entirely consistent 21 with the position that she has followed from the start. 22 She does not have to prove anything, as I've said, she 23 remains innocent until the presumption is rebutted. But 24 the fact remains that she has told you she is innocent 25 and if you believe that that's the end of the matter and page 16 1 you need take the matter no further. If you are 2 satisfied to that effect, you simply conclude that she 3 is an honest and straightforward witness and you can 4 come back to me in five minutes' time and tell me that; 5 you need take the matter no further, and you needn't 6 even start to consider the question of fingerprints." 7 So that is what he said: they might arrive at in 8 five minutes without even looking at the fingerprints? 9 A. That's right, yes. 10 Q. What has happened is, if I explain, my notes are the 11 digital pages not the original transcript pages. So his 12 Lordship then, in effect, is saying if, however, the 13 jury is going on to consider the fingerprint evidence 14 then there are these hurdles that he is going to lay out 15 and it's like any hurdle race, if they simply fall at 16 the first hurdle that is the end of their race and then 17 the prosecution must run over all these hurdles to the 18 end. 19 If I take you then to the digital page 14 and 20 perhaps we can bring up 14 and 15 you will see the first 21 hurdle. He says at page 13, letter A of the original 22 transcript: 23 "Now, ladies and gentlemen, if you are embarking on 24 that exercise [that is considering whether the Crown has 25 overcome hurdles] looking at the Crown case the first page 17 1 question you have to consider -- which Mr Findlay put 2 very clearly before you yesterday -- is if, lets assume 3 for the moment, if this is Ms McKie's fingerprint, how 4 did it get there and when did it get there? The Crown 5 as I understand it -- it's your recollection that 6 matters -- but according to what I noted yesterday, the 7 Crown go for -- if that's the right expression -- some 8 time on the Saturday and say, well, that's when she must 9 have slipped in, contrary to any loggist's evidence, 10 implanted the fingerprint. 11 "But ladies and gentlemen, as Mr Findlay pointed out 12 to you, what you must consider with the greatest of care 13 in this context is the evidence of the man Wilson who, 14 in fact, lifted the print on the Tuesday. We know from 15 Thurley that he dusted the aluminium powder down on the 16 Tuesday -- I beg your pardon, lifted the print on the 17 Tuesday following. We know that Thurley found dusted 18 the aluminium powder on the Thursday, the first morning 19 of the investigation, but what Wilson says, as I noted 20 it -- and it's your recollection that matters -- is that 21 when he finally found the print with the black powder on 22 the Tuesday, he saw, prior to it coming up, no sign of 23 disturbance in the aluminium powder, no sign that there 24 was a print that had been implanted upon it. Though 25 it's entirely a matter for you, what you have got to page 18 1 consider very carefully is what conclusion you draw from 2 that evidence. One obviously conclusion which is open 3 to you is that the print was there when the aluminium 4 powder was put on it. That is consistent with Wilson's 5 evidence and there's no evidence to a contrary effect. 6 If that is the case, the Crown case fails." 7 So what Lord Johnson is very clearly expressing to 8 the jury is before ever they get to the technical 9 fingerprint evidence the Crown case might have collapsed 10 because they cannot put your daughter's fingerprint -- 11 even if it is hers -- on the door at the correct point 12 in time? 13 A. Yes, that's one part but do you want me to look a little 14 further? 15 Q. I was going to go through the rest of the hurdles just 16 to see in context but, please, feel free to comment? 17 A. Just to make a brief point on this: when this other 18 evidence failed, when the forensic evidence came up how 19 the forensic powder was laid down and when the other 20 loggist evidence came through that she could not have 21 been seen in the house, all of that evidence in my mind 22 pointed to the fact that the fingerprint was wrong. So 23 while his Lordship may, in his summing-up, which was 24 studied and studious and had to be done the way it was 25 done, the fact of the matter is that once that evidence page 19 1 fell it meant that the fingerprint in itself was wrong. 2 My daughter could not have been in that house, ergo the 3 fingerprint could not be hers and this is the point I'm 4 trying to make here, it was abundantly clear the 5 fingerprint was not hers from the other evidence led. 6 Q. Sorry, if I come at it from my perspective, all I am 7 doing is trying to take from the judge and his charge, 8 it's the only record we have of someone reasoning 9 through this, that there could have been a number of 10 complicating, variable factors in play when people are 11 looking at it on 20th May, which is shortly after the 12 trial, that over time have been distilled with a degree 13 more clarity than they had at the time? 14 A. There were complicating factors on 20th May; yes, I 15 accept that. 16 Q. The next one if I move to the digital page, page 16 -- 17 perhaps I will bring up 16 and 17 -- we move to what his 18 Lordship says about the second hurdle. Again, it is 19 page 15 and 16 of the original transcript. His Lordship 20 says at 15B: 21 "The second hurdle is why would Ms McKie do this and 22 stick to her position from day 1, moment 1, apart from 23 the very initial reaction where she didn't think very 24 much about it because obviously, as we know, rogue -- to 25 put it loosely -- fingerprints can turn up. But it is a page 20 1 very pertinent aspect of this case in your consideration 2 of it. Why should Ms McKie, for two years, against 3 obvious -- because there's no doubt about this -- 4 pressure, in an isolated and lonely position, adhere as 5 firmly as she has done to the denial of any involvement 6 with the fingerprint, so easy to detract, so easy to 7 turn round and say, well, all right why has she done 8 that? And, secondly, why, in any event, would she want 9 to go in there at all? The suggestion is she was 10 curious or it would help her in her own analysis of the 11 case. Well, so be it. But that's the second hurdle, 12 ladies and gentlemen, which you have to take into 13 account in considering where you are on this particular 14 aspect of the case." 15 Then his Lordship actually adds: 16 "Bearing in mind" -- 17 A. Excuse me, can I take that point up -- 18 Q. Sorry. 19 A. -- because I'm finding a lot of stuff coming at me here 20 and is there a point to make in that first part because 21 I think the point that I would like to make in the first 22 part is that that was something the judge came across. 23 He didn't need to have a trial or hear evidence to hear 24 that. It was abundantly clear before this prosecution 25 was made: why should my daughter protest her page 21 1 innocence with such strength. And you understand I'm 2 her father so I'm coming at it from a very biased point 3 of view, so please accept that. I'm not criticising; 4 that's just my view. 5 I believe that's something that was so clear and 6 crystal clear before this trial started, it should have 7 been taken into the account by the authorities and was 8 not. 9 Q. My only reason, Mr McKie, in looking at it this way is 10 that when afterwards you were critical that the 11 authorities did not respond as you say they should by a 12 root and branch reconsideration of fingerprint evidence, 13 all I am suggesting to you is that when one sees the 14 minutes of the meeting on 20th May one actually sees the 15 individuals who are at that meeting pondering on just 16 this range of complicating factors. So they did not 17 perhaps at that time see the matter as clearly as you 18 have yourself seen it, that the fingerprint evidence and 19 the fingerprint evidence alone was wrong, there were a 20 number of other factors? 21 A. Absolutely. No, they didn't see the matter clearly but 22 they made some very clear judgments at that time about 23 what not to do and that was to close the whole matter 24 down and move on. That's my criticism. This is not 25 hindsight. Obviously on 20th May when the meeting was page 22 1 held there were many complications. What I object to is 2 at that time, on my daughter's behalf and on behalf of 3 anyone in the future, that when I wrote to Lord Hardie 4 in June and pointed out these matters, which is only -- 5 it was not even a month afterwards and pointed out these 6 matters, the matter was closed down. Why was the matter 7 closed down on the meeting of 20th June why did they 8 not -- this is the first time that fingerprints had been 9 successful challenged in a Scottish court. Did that not 10 raise any alarm bells? 11 Q. I suppose, Mr McKie, all I am putting to you for 12 comment -- it's not for me to take up a position on 13 this -- is when one looks at what the judge has said one 14 might, as the meeting did on 20th May, have said, well, 15 it's not simply there was a successful challenge to the 16 fingerprints because, as we're seeing here, there were a 17 number of issues that the judge raised before he even 18 got to the fingerprints. The first one was that the 19 Crown, the evidence in relation to the sequence of 20 events about when the print was alleged to have been put 21 there didn't actually stand up. That's the first. 22 The second one was -- and the Crown were aware of 23 this before, as you rightly say -- your daughter is 24 entirely credible as a witness and in the passage I was 25 just about to read out the judge says: page 23 1 "You have to bear in mind of course that all the 2 loggists are consistent with the view that she did not 3 enter the house. What you make of that is entirely a 4 matter for you, but you have to be satisfied beyond 5 reasonable doubt that she did enter the house. The 6 Crown say you can infer that from the fingerprints, and 7 that's where we come, finally, to that aspect of the 8 case, if you get this far." 9 So the judge is saying before ever you get to the 10 fingerprint evidence you might actually think how did 11 she get into that house when all the loggists say that 12 she did not enter. 13 A. Yes. Well, you're absolutely right on what you say but 14 let's remember what happened on 20th May and who 15 attended that meeting. Do you really -- I know you're 16 not telling me this but are you trying to tell me that 17 that was a correct forum to discuss these matters and 18 issues? Are you trying to tell me that the experts 19 should have been present at that? My daughter and her 20 lawyers should have been present. It was not the forum 21 on 20th May, six days after this trial ended, to make 22 decisions which effectively closed this whole thing 23 down. 24 I take the points you make and I do take them 25 absolutely -- there were serious matters to be looked page 24 1 at. That was not the forum to do it. It should have 2 been done by the Crown Office and the police in the 3 proper forum. Experts should not have been there. It 4 is quite clear from the recollections on that meeting 5 that it was done and dusted, that they were told it was 6 not fingerprints to blame and we'll all move on. 7 I think you will agree with me, Mr Moynihan, that 8 even you given that timescale could not have made these 9 decisions. So my objection is the Crown Office should 10 have had a proper analysis of this, a proper assessment 11 and a proper inquiry. They totally failed to do that. 12 The meeting on 20th was six days after and that was not 13 the decision making forum I would have chosen. 14 THE CHAIRMAN: I suppose one has to also bear in mind the 15 possibility, here the judge had said and made very clear 16 about the onus of proof. If you have two conflicting 17 experts on a tricky subject, as we know, of fingerprints 18 the jury may well have come to the view that they could 19 not decide between the experts and, therefore, not been 20 satisfied beyond reasonable doubt? 21 A. I would not argue with that, sir, but the point is -- 22 let's clear away the extraneous material, clear away 23 what the jury heard. This was the first time that 24 fingerprint expert evidence had been challenged in a 25 Scottish court. I believe that may have alerted people page 25 1 to the fact we need to look at this more closely. The 2 point I'm making is that meeting on the 20th was too 3 early. It was the forum to make these decisions. I 4 totally accept what you're saying. 5 THE CHAIRMAN: So really the point is the fact that it was 6 challenged is what you think should have encouraged a 7 different reaction? 8 A. The fact it was challenged and there was also evidence 9 like the forensic evidence, the evidence of the 10 loggists, that proved that she was never in the house. 11 Did no-one ever think if she wasn't in the house how did 12 her fingerprint get there? I might have just thought 13 that, even at that time. 14 MR MOYNIHAN: I am going to carry on the theme just to 15 exhaust what the judge has to say because he does 16 ultimately come to some of the points you are 17 mentioning. 18 Among the other things that were discussed at that 19 meeting on 20th May, is the judge has said if one goes 20 as far as then entertaining the question which of the 21 two sets of expert witnesses is correct, recognise that 22 20th May is the fact that the productions that the 23 prosecution put before the jury were of greatly inferior 24 quality and, indeed, had the problem that some of the 25 features that were being referred to came to be referred page 26 1 to simply as blobs, correct? 2 A. Yes. 3 Q. We then see that this is indeed what the trial judge 4 says, again in his own direct style, just below page 16 5 letter C: 6 "Now, ladies and gentlemen, in assessing the 7 fingerprint evidence, you do not, as it were, count 8 heads. You must look at the evidence on its qualitative 9 basis, albeit there are three led by the Crown and only 10 two by the defence. But what you have to do, ladies and 11 gentlemen, as Mr Findlay quite properly pointed out to 12 you, is to assess the whole matter against what you were 13 told, but also the use of your own eyes. You have the 14 photographs, you have the prints, make your own 15 comparisons, you are quite entitled to do so." 16 If I just stop there and I bring up the next page so 17 I have digital pages 17 and 18. So what the judge goes 18 on to say is: 19 "You can accept expert evidence when they say a blob 20 in fact means something else, certainly to my mind a 21 blob's a blob. But if somebody says a blob contained 22 something, you can accept that if you believe them. 23 But, on the other hand, where the two comparisons with 24 your own eyes reveal mismatches, then you have to start, 25 I suggest, being seriously concerned about whether this page 27 1 really is Ms McKie's print and certainly seriously 2 concerned to the point of beyond reasonable doubt." 3 So there again we see the complication of the 4 quality of the images being a factor the judge gives 5 prominence? 6 A. I accept that. 7 Q. Then he goes on and this is coming then to the through 8 thrust of the technical argument, he says: 9 "Perhaps the most critical aspect of this -- though 10 not the only one because the American witnesses have 11 pointed to what they perceive to be discrepancies in the 12 Crown's witness comparisons -- but I suggest to 13 you -- again, it's entirely a matter for you -- the most 14 important part of this question is this issue of 15 distortion in the top third of the print. If the 16 Americans' evidence is acceptable to you, the top third 17 of the print is genuine and available as a credible 18 piece of evidence, then, again, it's a matter for you. 19 It seems to me the Crown case completely collapses 20 because of the obvious discrepancies[sic] between the 21 two tops of the print and you can see with your own 22 eyes." 23 So what I am suggesting to you is we now get to 24 what, in fact, we have been spending much of the last 25 month looking at but it's fairly far down the road of page 28 1 the very practical directions the judge has given. 2 A. Yes, I'm hopefully not repeating myself. What I'm 3 saying is the evidence is one thing and the judge was 4 carefully laying out the hurdles that the jury had to 5 surmount before finding my daughter guilty but we've got 6 to look behind this, as I've said before. Someone, 7 somewhere, should have been looking at this whole 8 affair. This was a challenge to fingerprinting which 9 occurred, if you like, to some extent. 10 This is not relevant to the point I'm trying to 11 make. The point I'm trying to make is why on 20th May 12 was this whole thing written off? Why did Lord Hardie 13 give me a reply which said they were not going to make 14 any inquiries public and the experts would continue as 15 they were. 16 I suppose that's my real issue with this. It's not 17 the issue with the trial where I can see exactly what 18 the judge is saying and what the judge had to say. I'm 19 trying to split, if you like, the trial from the fact I 20 do believe that a challenge to fingerprint of such 21 enormous challenge to fingerprinting should have been 22 looked at more seriously. 23 I keep coming back to the point. It seems to me, 24 no-one really bothered, that's fine, the trial's 25 finished and let's move this whole thing on. Had it page 29 1 moved on I may add -- and letters that I sent to 2 Lord Hardie I believe hit the nail on the head -- had 3 this been allowed just to move on then I think perhaps 4 evidence in this country would be poorer today. So I'm 5 splitting the points, Mr Moynihan. 6 Q. That's fine. 7 The final part I wanted to look at, if I bring up 8 the next two pages, you will see that in fact the 9 highlighting that someone has made preceding me begins 10 to get to the thrust of what you are talking about. His 11 Lordship, having mentioned a blob's a blob to him at 17A 12 then at 17C continues: 13 "Perhaps ..." 14 I have read that part about the Crown case collapses 15 in relation to the top half. Then he says at the top of 16 page 18: 17 "Why then or how then should you approach this 18 matter? You are bound I suggest, but it's entirely a 19 matter for you, to recollect and take account the Crown 20 witnesses, particularly Mr Stewart and Ms McBride 21 pressed by Mr Findlay in cross-examination offered no 22 reasons for why they were dismissing the top part of the 23 print other than, 'It's my opinion; it's my judgment'. 24 "On the other hand, what do the Americans do, 25 particularly Mr Wertheim. He says you look at the page 30 1 prints, it's your recollection, I'm just trying to help 2 you and you find immediately without more than a casual, 3 almost or casual expert, if that's the right expression, 4 glance that there are mismatches between the top half of 5 both prints. What does he do? He says, 'Well, that 6 places me immediately in a doubt and what should I do 7 next', he says. He says, well, distortion or slippage 8 was the word he used is something that can happen for a 9 variety of reasons pressure, application, movements and 10 so on and so forth. But he doesn't say, 'It's my 11 judgment'. He goes on to say -- I look for his words 12 'warning signs, signs of blurring, signs of movement' 13 and you will remember he drew a number of aspects on 14 bits of paper as to what he would expect to find if he 15 was looking for distortion. He finds none. So what 16 does he do? He goes back to the first base and says, 17 therefore, this is a mismatch and he basis that on 18 reasons, not just judgment." 19 Then he says: 20 "It's entirely a matter for you, ladies and 21 gentlemen, but against that background you must give 22 very serious consideration to whether or not you can 23 safely say the Crown have established that the print was 24 that of Ms McKie on their evidence beyond a reasonable 25 doubt." page 31 1 Then he goes on to deal with slightly other matters. 2 Perhaps if I conclude it, he says: 3 "As Mr Findlay put it, it is sufficient for him at 4 the end of the day, if you are left in a doubt, 'maybe' 5 was the word he used and I endorse it, if that is your 6 view, maybe it's not, that is enough and at that stage 7 of this process the Crown would fail on the last hurdle, 8 bearing in mind that it has to pass all the hurdles I've 9 tried to identify for you." 10 A. Yes. 11 Q. Without looking at the detail of the minutes of the 12 20th May, you would accept from me in overview that what 13 was discussed at 20th May was the Advocate Depute's 14 perception that the evidence, general factual evidence, 15 hadn't quite turned out as he expected, point number 1 16 covered by the judge. Point number 2 was that the 17 clarity of the images was just not up to scratch. 18 That's one of the points the judge makes: a blob's a 19 blob for all that. Point number 3, the Advocate Depute 20 squarely faces up at that meeting to the fact that the 21 quality of the experts' presentation was as different as 22 night and day, Scottish experts' presentation not being 23 as good as the American experts, which is something the 24 judge specifically identified. 25 All I am suggesting to you is that at the meeting on page 32 1 20th May the individuals present did actually address 2 the issues that where the points, the hurdles the judge 3 identified -- I am making no criticism of you -- later 4 on it then becomes a bit clear because what emerges 5 later on is, even if we take those variables out and we 6 have people look at exactly the same material of good 7 quality, then there is a problem with the SCRO evidence 8 but that does not emerge until later. It is to your 9 credit that it emerges later because you persist in 10 relation to this particular matter. 11 A. I wanted to be seen to be opposing -- I'm not, I'm 12 totally accepting what you say. It wasn't that much 13 later, though, Mr Moynihan. It was only, I think, argue 14 for 12th June and it took time to assess what was 15 happening. I was not at that time, of course, aware 16 of any meeting on the 20th. So in my own offices, in my 17 own, if you like, understanding of the case I was able 18 to write that letter to Lord Hardie pointing out -- I 19 mean, one issue is why did no-one think of getting the 20 mark independently looked at, even given all of that, I 21 can understand it, if the evidence led so far suggests 22 that before the prosecution there was some talk of 23 having an independent expert brought in, why in the 24 name -- did the Crown Office not after this at least 25 have that mark taken out for independent analysis? My page 33 1 argument would be if it had been then perhaps we would 2 not be sitting here today. 3 Q. If I move on then -- and the gap is from 20th May, as 4 you say your letter is in June to the Lord Advocate, 5 Lord Hardie -- we move on to February 2000 when indeed 6 the Taylor report was commissioned with Mr Zeelenberg 7 and Mr Rudrud instructed as independent experts. 8 The gap in the middle is the BBC Scotland programme 9 that you mention and that no-one seems to doubt was a 10 catalyst for some form of re-examination of this. The 11 re-examination takes place in that first half of 2000. 12 Mr Zeelenberg and Mr Rudrud report. It is then drawn 13 immediately to the attention of the Scottish Parliament 14 with emergency statements made by the Justice Minister 15 and, indeed, the Lord Advocate, correct? 16 A. Correct, yes. 17 Q. Then the sensible suggestion is made by Mr Zeelenberg 18 there should be a meeting of the experts in a relaxed 19 atmosphere to see if people could actually understand 20 how this difference of opinion has actually arisen, 21 perfectly sensible? 22 A. Absolutely. 23 Q. That's what brings about the Tulliallan meeting, but by 24 then there is again the complicating factor that by 25 then, just shortly after the Rudrud and Zeelenberg page 34 1 conclusion is known, what you had done is submitted a 2 complaint of criminal misconduct on the part of some 3 officers and that, I suggest to you, just brings about a 4 complication in the relaxed resolution of this as a 5 matter of expert opinion? 6 A. I think you understate it. I can understand where you 7 are coming from but I'm coming from a different place. 8 I believe that the authorities would never, ever have 9 looked at this in that relaxed atmosphere and done what 10 was done unless severe pressure had been put on to them 11 in the lead-up to February 2000. A lot of that was from 12 the media. I admit that this was something that I had a 13 hand in. 14 It's this idea that, well, these things were going 15 to happen anyway. They were not going to happen anyway 16 and the problem was by that time I believed in my heart 17 of hearts, given the evidence that we had, that in fact 18 there may well be criminality. 19 It's a simple thing to sit here today and recount 20 things that happened and the reasonableness of it all. 21 At the time it was not reasonable. As you know, I have 22 submitted to the Inquiry many, many letters between the 23 June letter and the February time asking the authorities 24 to do -- at one stage I made, if you like, an accusation 25 of the possibility of perjury, which was passed from the page 35 1 Crown Office to the Minister for Justice. So I suppose 2 it's the subtext I'm looking at. There's this reality 3 and there is the reality that we were experiencing and I 4 don't think it was as simple and as relaxed as that and 5 I certainly don't believe that because I made, if you 6 like, an allegation of criminality that somehow 7 heightened the tension. The tension was there, please 8 believe me, and the belief was there that in fact 9 during, as you will be aware, during the HMCI's Inquiry, 10 Mr Zeelenberg and Mr Rudrud had things to say about the 11 authenticity of the marks. Mr Wertheim had already had 12 things to say about the distortion of the print. So 13 there was a lot of things in the background there and it 14 would have been wonderful if we had gone to Tulliallan 15 and had resolved it, if somebody had put their hands up 16 and said we can agree to disagree on this one and move 17 the thing on but that didn't happen. 18 Q. Mr McKie, nothing I am asking you is intended to be 19 critical of you. You are the father of a daughter who 20 has, by now it's been determined, wrongly prosecuted for 21 perjury, one I can understand your feelings. All that I 22 am suggesting to you is that, in fact, the media 23 campaign has brought pressure on all of those involved 24 and you speak of people being vilified, people on both 25 sides of this argument have been vilified by others and page 36 1 they have in fact vilified each other. 2 A. Yes. 3 Q. It's not in fact been, for that reason, exactly the 4 easiest atmosphere for people to sit down and have calm 5 reflection. 6 A. Yes. The assumption, Mr Moynihan, if I am getting you 7 rightly, seems to be that, if you like, there was -- I 8 suppose, when this happens to your daughter I have got 9 to admit it going back there I was very emotional, very 10 determined, very bloody-minded, all of these things. So 11 I accept a responsibility for, if you like, pushing 12 things along and escalating them. But at the end of the 13 day -- okay, this is in hindsight -- things were round. 14 This Inquiry's found out that things were wrong. So I 15 think that we need to marry the two things and say I'll 16 accept that I was perhaps a bit forthright in defending 17 my daughter but I genuinely believed, even at that time, 18 that fingerprinting mistakes had been made and that 19 this -- I'm an ex-police officer of 30-years' standing. 20 I'm an ex-CID officer who has taken people to court and 21 convicted them on fingerprints. This to me was a very, 22 very serious issue. So behind, if I like, my daughter, 23 what was happening to my daughter was also the question 24 I'm a police officer. I'm one of the family. I've 25 believed for years and years in fingerprinting and what page 37 1 I find is when somebody challenges fingerprint people 2 say, "Oh, there's no problems here", and that's what 3 people were saying. So there is that subtext of, if you 4 like, the good, the need to rationalise and sort these 5 out. In my opinion, the only way -- I felt it was a 6 backs-to-the wall. The one man -- if you ever had your 7 back to the wall (and I know that the experts have, and 8 I acknowledge that, and their families), if you have 9 ever had your backs to the wall with the police against 10 you, with the Crown Office apparently against you, with 11 the authorities determined not to look at this, then 12 please believe me, it's not easy. 13 So if I did escalate it -- and I'll accept what you 14 say to me, there's a possibility of that -- I did it in 15 good faith at the time and I honestly believe to good 16 cause. 17 Q. Mr McKie, again, I make it clear I am not criticising 18 you. What I in fact am trying to do is to, perhaps from 19 my perspective, see that others, on whichever side of 20 the argument, have in fact been brought under pressure 21 in this -- 22 A. Absolutely. 23 Q. -- which has made it difficult for all concerned? 24 A. If I could make a point, I can understand from my own 25 perspective and from the individuals and the fingerprint page 38 1 experts, we're individuals. Surely to goodness we 2 shouldn't be able to pressure a system. Surely the 3 Crown Office and the police are able to stand back and 4 the politicians -- sorry, I'm speaking a bit fast. 5 THE CHAIRMAN: Sorry about the background noise. 6 A. Noises off -- surely organisations like that should be 7 capable of standing back from this. To say that I can 8 excite them and exacerbate the situation, I'm quite sure 9 these organisations as professional organisations should 10 stand back from this and look behind what's happening. 11 So I think that -- and I don't take anything you say as 12 criticism. In fact, I accept criticism because I accept 13 at the time I was firing on all guns. It's not as 14 simple as that. I believe there's been a failure by the 15 police and the Crown Office overall and the politicians, 16 not only to ourselves but also to the experts 17 themselves. They should have taken control of this. So 18 I'm not prepared to sit here and accept any individual 19 has responsibility. The responsibility lies with the 20 system and the system did not operate, in my opinion, 21 correctly. 22 MR MOYNIHAN: What I want to do at the end of the 23 examination of you is to ask for your reflections and 24 the lessons that we should be learning and we will come 25 to that when I ask you about the non-numeric matter. page 39 1 There are, however, two other points of detail I 2 want to ask you about that I will cover separately. The 3 first of those relates to the IAI (International 4 Association for Identifications) and the second relates 5 to an allegation that has been put against your daughter 6 of perjury having been committed by her at the perjury 7 trial. 8 THE CHAIRMAN: I take it before we embark on the IAI that 9 you are content to answer questions about that. 10 A. Totally content, sir. Totally content. I have no 11 problem at all in it. I'd like to. 12 THE CHAIRMAN: If you understand the position then. 13 A. I do, indeed. 14 MR MOYNIHAN: Have you had an opportunity to study 15 Mr Swann's statement? 16 A. I wouldn't say study it, certainly catch the bones of 17 it. I would appreciate, if you want to, just bring up 18 the passages that refer -- 19 Q. It's FI0149. If you allow me just a second, I'll just 20 find the precise passage. If I take you to 21 paragraph 42, which is on page 24 of the document and 22 the next page as well, pages 24 and 25 digitally, if we 23 just look at the paragraph that I am highlighting on the 24 two sides of the page, what I want to do, Mr McKie, is 25 simply give you a chance to read the paragraph number 42 page 40 1 and, as with Mr Wertheim, I wish to make it clear to you 2 that what I am doing is putting this to you for your 3 comment. It is not an allegation that I am personally 4 making. I am putting it to you for your comment because 5 no doubt we will hear from Mr Swann his account of this 6 matter and his Lordship may have to reach a view on it. 7 So if I give you a chance to read it, this is, as 8 far as I can see, the most succinct but comprehensive 9 account of the allegation. (Pause) 10 A. Thank you. 11 Q. Perhaps for me -- and I don't wish to give a misleading 12 summary -- the thrust of this for me at any rate is the 13 accusation that the case, that is the complaint to the 14 IAI, it is said was conceived, encouraged and pursued 15 between Iain McKie, Shirley McKie, Pat Wertheim and the 16 IAI itself. 17 I will only ask you to give your own account from 18 your own perspective. What is it you wish to say in 19 response to that? 20 A. When one is accused of something there should be 21 evidence to support that. I do not see in this 22 paragraph here or any other of the other statements 23 other than just bald allegations. Now you've got to 24 understand and I don't want to complicate the matter but 25 I have been subject to many allegations: I'm page 41 1 Professor Champod's best friend; I was in league with 2 the Crown Office ... these are all recorded allegations 3 against me. I am perfectly happy to answer them but 4 surely there must be evidence given of this. 5 Let me give you my understanding of, if you like, 6 the IAI position. I for years on the Internet have 7 asked the Fingerprint Society and the IAI to, as if you 8 like worldwide fingerprint organisations, to take a hand 9 in sorting this mess out. I believe that if they did 10 that, the professionals in those organisations 11 should -- I think fingerprint experts should sort this 12 matter out but it didn't happen. So for years I have 13 been, if you like, campaigning. But that's a long step 14 from saying that Mr Garrett, myself or anyone else is in 15 some conspiracy. There is no evidence of it, I have 16 never been involved in a conspiracy with anyone to do 17 anything. 18 I believe that the IAI was a good step. It's a step 19 which I would applaud in retrospect but we've got to be 20 very careful here, if people make bald allegations 21 against me all I ask is that they provide some form of 22 evidence to support that. 23 Now I have not seen the evidence of meetings, 24 surreptitious meetings, correspondence or anything else. 25 It doesn't exist and I -- when Mr Wertheim was here I page 42 1 believe he was insulted quite bluntly, although I 2 understand it wasn't yourself doing it. These are bald 3 allegations. As with Mr Les Brown, allegation after 4 allegation, which were, in my opinion, again, proven to 5 be false. 6 So let's pursue this allegation with Mr Swann. Let 7 Mr Swann provide to you the evidence that I have done 8 this and my daughter has done this. When they do that 9 then by all means call me back and let me account for 10 myself. All I seek to do is put on the table things as 11 I know it. If they are wrong, I'll admit they're wrong. 12 So this is -- the allegation hasn't got it. There is no 13 evidence of it. We need evidence before we can allege 14 things against people, so I'd like to hear the evidence 15 from Mr Swann. 16 Q. I will leave the matter there. 17 The second matter that I wanted to discuss with you 18 was the, again, allegation that has been put that your 19 daughter did not give a true account in her perjury 20 trial. We will look specifically at the passages that 21 you have quoted with some commentary in your first 22 witness beginning at paragraph 81. What I will do is 23 look at them in their original source. 24 Before we stand back, though, the substance of this 25 is firstly that, so far as Ms McKie is concerned, she page 43 1 knew that Mr Swann had been instructed as an expert? 2 A. Absolutely, yes. 3 Q. She had met him on one occasion in Wakefield? 4 A. Correct. 5 MISS GRAHAME: Excuse me, Mr Chairman, if I may raise one 6 issue. I understand that from paragraph 81 this section 7 has been redacted and certainly I have been given a 8 copy -- 9 MR MOYNIHAN: I am sorry, I have misread my notes, sir. 10 THE CHAIRMAN: It hasn't gone up on the screen. 11 MR MOYNIHAN: I am grateful. I have misread my note. I 12 have 81, something is deleted. I apologise. 13 I will deal with it, you have a section in your 14 evidence dealing with the perjury allegation. 15 A. Yes. 16 Q. If I start again, your daughter, Ms McKie, knew Mr Swann 17 had been instructed and you said yes. You and she met 18 him on one occasion in Wakefield? 19 A. Yes. 20 Q. At a time when the instruction was given to him to 21 investigate the question of forgery and planting? 22 A. Shortly after that, yes. 23 Q. So that is what we should understand was his brief at 24 the time? 25 A. Absolutely, yes. page 44 1 Q. That was in 1998. We then roll forward to the run-up to 2 the trial in 1999. In March 1999 Mr Swann had the 3 opportunity to look at a number of productions including 4 the doorframe and, as we know, he reached a conclusion 5 that Y7 was indeed your daughter's fingerprint. 6 A. Correct. 7 Q. Your daughter was advised that that was the conclusion 8 he, Mr Swann, had reached? 9 A. She was. 10 Q. Then you yourself acknowledge that what happened was 11 that you continued your search for an expert to assist 12 and you went initially to Mr Wertheim, again on the same 13 brief (namely, to give some evidence about planting and 14 forgery)? 15 A. Yes, after having gone to a number of other experts. 16 Q. Indeed, you came upon Mr Wertheim because he was someone 17 who had a reputation in relation to planting and 18 forgery? 19 A. Correct. 20 Q. Then, as we have already discovered, as events turned 21 out, Mr Wertheim delivered the shock, as you have said, 22 it wasn't even her fingerprint to begin with? 23 A. Correct. 24 Q. That is an overview. The essentials for me are that 25 your daughter did know of Mr Swann's involvement and did page 45 1 know that he had reached a conclusion on Y7 that was 2 adverse to her? 3 A. Correct. 4 Q. If I bring up in their original form -- sorry, one other 5 feature that I will mention just in the background, 6 since we are looking at events in March 1999, there is a 7 letter that was written in your daughter's name to Levy 8 & McRae. It is dated 7th March 1999. I have it in two 9 forms: one with your daughter's signature on it, 10 SGO363 -- maybe it is not on the system. If we try 11 DB0703, what I have is a copy. Now, this one is 12 unsigned but it's a copy of a letter that went to 13 Levy & McRae. If I scroll through the letter, page 2, 14 page 3, we will see it ends up as a letter in the name 15 of your daughter. There is another version signed. 16 I understand your position to be that you are, in 17 fact, the author of this letter? 18 A. I'm the author of all these letters. 19 Q. Your position is that you put this to your daughter to 20 sign and that she signed it without reading it? 21 A. Yes. Can I put the background to it? 22 Q. Yes, please do. 23 A. I don't want to complicate this but I've said in my 24 statement what I've decided to do was lay it out as I 25 saw it from the very beginning and let people look at it page 46 1 and make their own judgment on it. 2 The background to this is extremely important. This 3 is in the run-up to a trial which was virtually for my 4 daughter's life and if that's being too dramatic I 5 apologise, but it wasn't. Medical reports which I 6 submitted which I know have -- 7 Q. Well -- 8 A. -- I accept that but I still need to make reference to 9 the fact that, to her mental health and psychological 10 health at that time. She was on the ropes, totally. I 11 took total control of this matter from 1998 through to 12 1999. I made all the decisions and sitting here it 13 seems arrogant, it does indeed, but it's needed. I made 14 all the decisions. I wrote all the letters. I did all 15 the negotiation. These are things that I did, things 16 that I will take the responsibility for. 17 Q. The only reason I am raising this is, in a sense, to put 18 it to the side. As you may know, some of those who have 19 made the allegations against your daughter look to this 20 letter to say that this is evidence that she herself did 21 know of Mr Swann and know of his opinion. 22 A. Of course, I can't blame them for that but I'm putting 23 the record totally straight. 24 Q. Nonetheless, in a sense this is why I put the letter to 25 the side. The letter is, on one view, irrelevant page 47 1 because even though she did not read the letter and 2 therefore had no knowledge of its content, you start by 3 acknowledging that she in fact did know of Mr Swann and 4 did know of his opinion by about this time? 5 A. I think that's correct and also that, if you like, 6 Mr Swann and Mr Russell well knew of these matters 7 because these matters have been raised, as I've made 8 clear in my statement, on many, many occasions. These 9 matters have been reported to Crown Office on a number 10 of occasions, 2005, 2006 and there's letters extant on 11 that. But I just want to make that totally clear, the 12 background to this. I take total responsibility for it, 13 yes. 14 Q. That's fine. If I then bring up the transcript of your 15 daughter's evidence on 11th May 1999, SG0294, and I am 16 going to begin at digital page 84. 17 This is the cross-examination, in fact, of your 18 daughter by now Sheriff Murphy. He begins on page 86 of 19 the transcript, 84 of our digital reference, at line 6 20 saying he now wants to move on. He says: 21 "There are two possible scenarios here in general 22 terms that we are talking about. Can I just try and be 23 clear about this. Number 1 if SCRO are right and it is 24 your fingerprint in which case you haven't told the 25 truth and some loggist hasn't. Alternatively, SCRO are page 48 1 wrong and you are right. Do you accept that as the two 2 broad scenarios we are facing?" 3 To which she said: 4 "Yes." 5 So that, to my understanding, brings the background 6 to this, the Advocate Depute is asking your daughter, in 7 effect, "Who is right here: SCRO or you". 8 For me, the next reference I had and I do not wish 9 to curtail this inappropriately but the next reference I 10 had began at page 85, so the next page, line 11. The 11 Advocate Depute asks: 12 "Can you tell the ladies and gentlemen how many 13 people were asked to look at the print Y7 for the 14 defence before Mr Wertheim?" 15 To which she said: 16 "I have no idea." 17 A. That's correct. 18 Q. I am looking at, in particular, paragraphs 109 on to 117 19 of your statement if that assists you. 20 A. Thank you very much. 21 Q. And maybe just a bit before that. 22 A. That's helpful. 23 Q. 109 to 117, your statement. 24 I understand your position to be so far as page 87 25 of the original transcript (85 for me), lines 11 to 14 page 49 1 that you say because you had taken charge of the 2 matters, you explained that your daughter would not have 3 been aware of the number of people you had contacted? 4 A. That's correct -- no idea. 5 Q. So it then proceeds: 6 "Well, was it one? Was it more than one?" 7 She says: 8 "You would need to ask my counsel about that", 9 something we will come back to. 10 Then he said: 11 "Is this not a matter that you would have been 12 anxious to know about? 13 "Mr Findlay assured me he would do the job properly 14 and to trust him and that is what I did." 15 Again, we will come back to that. 16 "At what stage did you first meet Mr Findlay?" 17 She: 18 "I can't remember the date. 19 "Well, approximately?" 20 If we bring up the two pages side-by-side, she said: 21 "A number of months ago." 22 The Advocate Depute then says: 23 "Right but this matter has gone on for two years? 24 "Yes. 25 "And certainly from the point of view of your arrest page 50 1 you have instructed solicitors? 2 "Yes. 3 "Did you instruct solicitors before that? 4 "Yes. 5 "At what stage did you instruct solicitors?" 6 She says: 7 "Within about a fortnight of my fingerprints being 8 identified", and then he says: 9 "Oh right. A way back in 1997? 10 "Yes. 11 "And at that stage your solicitors would have 12 started to look into the thing?" 13 She says: 14 "I don't know if they did at that point because it 15 wasn't really clear what was going to happen." 16 The Advocate Depute says: 17 "Right. Well, at what stage do you think your 18 solicitors started to look into things?" 19 She says: 20 "I don't know. You will need to ask my solicitors." 21 It is this that I pause at, Mr McKie, she is asked 22 by the Advocate Depute: 23 "Do you seriously not know whether the print was 24 shown to anyone before Mr Wertheim?" 25 To which she answered: page 51 1 "I don't know who has examined the fingerprint." 2 She is asked: 3 "Do you know if anybody has?" 4 To which she answered: 5 "I don't know who has." 6 Then the Advocate Depute says: 7 "Do you know if anybody has regardless of their 8 identity?" 9 She says: 10 "I don't know. You would need to ask my solicitor 11 that. 12 "Well, did you not ask your solicitors? 13 "Sorry? 14 "Did you not ask your solicitors how things were 15 progressing? 16 "Yes. 17 "And was there no discussion at any stage of other 18 people looking at the fingerprint?" 19 She says: 20 "Well, there was discussion about, obviously, the 21 fingerprint, people looking at the fingerprint but they 22 don't discuss with me day-to-day who, what and why." 23 The Advocate Depute: 24 "So you don't know whether or not anybody else 25 looked at the print. Is that your evidence?" page 52 1 To which she then replied: 2 "No, I don't know." 3 The Advocate Depute then, of course, turns to the 4 broader matters and suggests that she is not telling the 5 truth about being in the house. 6 Now, there's obviously a number of factors there but 7 looking at this with hindsight knowing that your 8 daughter did know of Mr Swann and did know he had 9 examined the print and he had reached an opinion, would 10 you accept from me that when the Advocate Depute said to 11 your daughter at page 88 of the transcript, line 19 12 (page 86 for us): 13 "Do you seriously not know whether the print was 14 shown to anyone before Mr Wertheim?" 15 When she says: 16 "I don't know who has examined the fingerprint", 17 that knowing what you accept was the position that is an 18 incorrect answer? 19 A. No, again I've got to go to context. Could you take me 20 back to that line? Have you my statement paragraph on 21 that? 22 Q. Yes, I do. 23 A. It would be helpful for me to follow from my statement. 24 Q. Which paragraph in your statement? 25 A. I've got it. It's that one you were talking about, the page 53 1 last one you spoke about. 2 Q. Your statement is FI0181. 3 A. 100, was it, my paragraph 100? 4 Q. Your paragraph 100. If we look at FI0181 and if we find 5 paragraph 100, it is apparently page 18. 6 I should explain to people what you have done is you 7 have gone through the transcript, the section I have 8 read, and you have given your own commentary which for 9 us is highlighted in -- in fact, first of all, what you 10 do is highlight in purple the answer that Ms McKie gave 11 and then you give your commentary in relation to that. 12 A. Yes. 13 Q. Do you want to proceed then through? Perhaps if we take 14 down the highlighting, if you proceed through as you 15 wish. 16 A. Please, we need to look at the background, first of all. 17 The first background is Shirley's state of health, the 18 fact she was not getting involved in anything at all. 19 That matter was known to her advocate, Mr Findlay, and 20 it is my understanding, although again I remain to be 21 corrected if that is necessary, that his opinion was on 22 these matters that that was his business, no-one else's 23 business and that she should not bother with these 24 issues at all. The matter should be referred to him if 25 it was required to be done. page 54 1 So -- and the third thing would be the context in 2 which these answers are given. I feel I'm having to sit 3 here -- I can understand why I'm doing it -- and defend 4 something quite bluntly I just do not believe and it 5 another of the many allegations that are made. I will 6 do it, but I do it under some objection but I understand 7 why it's got to be done. 8 As regards that comment we are talking, again, about 9 the context the fact of the matter is: 10 "Can you tell the ladies and gentlemen how many 11 people were asked to look at the print Y7 before Mr 12 Wertheim? 13 "I have no idea." 14 That's absolutely correct. She no idea at all. 15 The fourth issue, I may as well make this issue just 16 to, if you like, as a background to what we're saying 17 just now, you have got to remember, in my opinion, that 18 both Mr Murphy (who was the Advocate Depute) and 19 Mr Findlay knew well of Peter Swann's existence. That 20 is a very, very important background to this. They were 21 aware of what was happening. 22 I've got to say -- again, I've perhaps put it a 23 little crudely in my statement. I will rephrase it -- 24 that's their business how they deal with the evidence 25 that's coming out in the trial but these are backgrounds page 55 1 to this. The fact of the matter, she didn't know who 2 had examined it in terms of numbers, because I had been 3 to Pierre Margot, I had been to Gareth Pearce, I had 4 been to Luff, brought us a chart; Davidson in Scotland 5 and Scotland. I'd been to a number of experts, all on 6 my own account. She had no awareness of this. So 7 that's the background to the whole thing. So she had no 8 idea. 9 I have no problem with that at all and I would also 10 argue with you the context of the whole thing is from 11 that point on she did not have an idea of these things 12 at all. You have got to -- this analytical sitting here 13 looking at evidence is all very well, as we found out 14 before when you looked at the charge to the jury, you 15 need to understand the background to it and the position 16 that my daughter was in at that time, not having, if you 17 like, this information and being told to refer -- she 18 consistently does that the whole way through. That's my 19 position. 20 Q. I will not go into the detail because others can reach 21 their own conclusions in the light of the basic 22 information. The one point though, and you are aware of 23 this, that you have been alerted to, is because this 24 allegation made against your daughter then spills over 25 into an allegation against Mr Findlay, you -- page 56 1 A. Not from me. 2 Q. No, I appreciate that. 3 A. I've made that quite clear. 4 Q. You are aware that we have made contact, belatedly, with 5 Mr Findlay and all that I can put to you I think is 6 foreshadowed by one of your comments. If we, as you 7 say, look at the context, Mr Findlay's a fairly 8 strongly-minded individual? 9 A. Yes, he and I fell out on a number of occasions but I 10 still respect him and I respect what he did. 11 Q. I was just about to say there was a meeting of equals 12 really when you and Mr Findlay met? 13 A. There was a white-faced moment and it wasn't he or I had 14 the white faces, it was those around us. You can 15 understand that. I'm the father and he's an autocratic 16 gentleman -- and I mean that in the nicest possible 17 way -- who brooks no interference at all. He runs the 18 show and he run it. 19 Q. I put nothing positive to you because I don't have 20 Mr Findlay's positive account of this but all that I 21 understand from him is that because you had, for the 22 very good reason you have mentioned, fallen out you were 23 not therefore present at all of the meetings he had? 24 A. I wasn't present at all the meetings. I was present at 25 some meetings and I hope -- I don't have records of page 57 1 exactly when the meetings were but I was present at them 2 but I've also got to say I may have been getting some of 3 that secondhand from my daughter after attending 4 meetings. I can't remember. But I do remember, even 5 after that -- if you recall it, I was told to sit down 6 and shut up or words to that effect, which I found very 7 difficult to do -- I did attend other meetings and 8 sometimes I was sitting outside when the meetings were 9 going on. 10 Q. Again, we are thinking back 12 years and therefore all 11 the human frailties of memory, all that is being 12 suggested by Mr Findlay is that when it comes to the 13 point that you are saying, and the phrase you use is he, 14 Mr Findlay, instructed your daughter to answer questions 15 in a certain manner, what Mr Findlay says is that is 16 hearsay on your part because you were not present at 17 those meetings. 18 A. That could well be, although I have a slightly different 19 recollection. I'm prepared to accept that possibility 20 but I'm also so well aware of this whole issue because I 21 had been feverishly been trying to find experts 22 literally all over the world. This was a very, very 23 important issue. Peter Swann had said that -- and 24 Mr Graham as well, had said that that print Y7 was my 25 daughter's. I had been feverishly searching for experts page 58 1 throughout the world so this was a very critical point 2 and it's a point that's stayed with me during the trial, 3 after trial and since then, the discussions we had with 4 Mr Findlay, because Mr Findlay's take was, "I prepare 5 the defence here. You have nothing to do with it", and 6 I'm afraid my take was the other side of that, "I'm the 7 father and I will take part in it". So these things do 8 stick in my mind and I do believe that I was at the 9 meetings or at least when it was discussed, when it was 10 made quite clear. 11 Why I remember is that -- I'm not against 12 Mr Findlay, this is all recollection -- but he even 13 doubted the way she would dress for the trial. So I do 14 remember this. I truly believe that that's exactly what 15 he said because she didn't have that information. I can 16 understand why he did it but it was to answer questions 17 about matters you don't know about and she said two or 18 three times she referred it back to her solicitor, 19 Donald Findlay. 20 Q. Apart from anything else, the one point I do have an 21 observation by Mr Findlay is in relation to the manner 22 of dress is that he would routinely tell people just to 23 dress comfortably for court. It's not the most pleasant 24 of environments. 25 A. Okay. page 59 1 THE CHAIRMAN: I don't think it would be unusual for counsel 2 preparing for a defence in a criminal case to give some 3 advice about the dress of the accused. I'm sure it's no 4 different in Scotland to how it is in the jurisdiction 5 that I am familiar with it? 6 A. None at all. 7 THE CHAIRMAN: So I should say I find nothing unusual or 8 exceptional about that but on this point, when it really 9 comes to it, you have very clearly stated what you were 10 aware of as being your daughter's state of knowledge and 11 how her responses construed at the trial is for others 12 to form their opinion. 13 A. I put all the information on the table, sir. 14 MR MOYNIHAN: That would have been the end of this chapter 15 but there is one other point and the chapter which is to 16 come is simply the more reflective aspect. 17 THE CHAIRMAN: We will rise now until 11.50. 18 (11.30 am) 19 (A short break) 20 (11.52 am) 21 MR MOYNIHAN: Mr McKie, I am going now to turn to 22 fingerprint matters, starting with the non-numeric 23 system. If I again bring up your statement, FI0181 and 24 on this occasion I will begin at page 51. It is 25 paragraph 240. page 60 1 THE CHAIRMAN: This is the second -- 2 MR MOYNIHAN: Sorry, sir, the first one. 3 Perhaps if I could bring up pages 51 and 52 4 side-by-side. I am just going to ask a number of 5 questions that relate to the same subject, Mr McKie. I 6 will give you just time to look at the context. It is 7 talking about, in effect, the introduction of the 8 non-numeric system. 9 In paragraph 240, what you say is that the 10 introduction of the non-numeric system you describe as a 11 knee-jerk reaction to the ongoing controversy. I wonder 12 if that is not perhaps historically inaccurate; that, in 13 fact, the plan had been to implement it in 2000? 14 A. I would accept that although to some extent I think that 15 the timing was probably precipitated by the whole affair 16 but no I would accept that. 17 Q. What I was suggesting was, in fact, the plan had been to 18 introduce it in 2000/2001 and, in fact, your daughter's 19 case had resulted in a delay, in fact, until 2006 before 20 the system was introduced? 21 A. All I would state on that is I don't think it was the 22 time to bring it in. I think the controversy was still 23 in the air. They were still looking at aspects of 24 presentation and expert evidence and perhaps it could 25 have been delayed but I would accept -- I've looked at page 61 1 it again and I don't think knee-jerk was the best way of 2 putting it. 3 Q. The other points and these build up ultimately to 4 looking for lessons that we might learn. In 5 paragraph 241 what you say is that your concerns revolve 6 around your belief that: 7 "... while the official spin on implementation of 8 the system is extremely positive, the reality is that 9 since implementation we are faced with a system that is 10 arguably worse than the one it replaced and is more open 11 to abuse." 12 Do I take it from that that you have some sympathy 13 with, as a preferred approach, what Mr Zeelenberg spoke 14 of, a system which has a numerical threshold and not 15 just the current system in Scotland? Is that what you 16 are driving at? 17 A. I'm driving at that in part. My belief is that in some 18 areas this new non-numeric system in fact is just a 19 numeric system and instead of finding 16 points people 20 are quite happy now to find 10 or 12. 21 In the hands of competent and trained scientists I 22 am quite happy to go with the non-numeric system which, 23 with the three levels, I think a qualitative system is 24 better. The danger comes in the training and the way -- 25 Mr Bruce's evidence, if I just take one person's page 62 1 evidence, it didn't seem to me in terms of protocol 2 Mr Bruce was able to explain to us what protocols were 3 for giving evidence. I would like one of the witnesses 4 to say to me, "This is how we, if you like, prove our 5 identification to the jury". I have not heard 6 that evidence. So, point in blunt, I think to some 7 extent, in some areas, it's a numeric system by another 8 name. 9 Q. I am going to be selective in what I actually ask you 10 about, in part for the reason you indicated, what you 11 have done is raise some issues on which you yourself are 12 interested to hear the contribution from the SPSA? 13 A. Absolutely, yes. 14 Q. We will hear from a number of witnesses from SPSA in 15 relation to the topics you raise and indeed topics that 16 have been raised by other evidence. That is why I will 17 be light in relation to this. 18 A. Can I just make the point that, if you like, and I say 19 it, the word "spin" has not been the reality of the 20 situation. I think that the whole non-numeric system 21 was welcomed in with open arms by the police and the 22 Crown. However, I don't think that their actions since 23 it came in in September 2006 have matched the 24 aspirations. I suppose you will come on to that at some 25 future date. page 63 1 Q. Paragraph 242 we have really covered. I think we have 2 covered the first sentence, namely that you have a 3 concern that identifications are now spoken to in court 4 by less than 16 points. You have mentioned that. 5 A. Yes. 6 Q. It is the next sentence you say: 7 "I suspect that far from embracing the science of 8 ridgeology and ensuring that the overall quality of the 9 print is analysed and reported on these so-called 10 experts are still cutting corners to identifications, 11 confident that the system will not challenge them." 12 What evidence do you have that today experts are 13 cutting corners? 14 A. The evidence I've heard from expert witnesses at this 15 Inquiry lead me to that conclusion. I have found some 16 of them extremely vague in terms of what the non-numeric 17 system is. If I was a juror what would they say to me 18 to, if you like, to help me to understand. 19 When the system was launched it was said -- and I 20 will just, if I may, have a quick quote here from I 21 think it was SPSA website they said: 22 "The fingerprint expert will be able to offer a 23 fuller explanation of how they arrived at their 24 conclusion, be discussing all the features revealed 25 rather than simply focussing only on a number of points. page 64 1 This will be more easily understood by the court and, 2 where appropriate, the jury. The court will be able to 3 consider all the information presented to it and make an 4 informed decision on the identification." 5 I just do not believe we've had evidence at this 6 Inquiry to show that that is true. I need to align with 7 that -- I know these are other matters -- I think we 8 need to look at the way the Crown has, in fact, dealt 9 with non-numeric evidence since it came in and I know 10 that -- 11 Q. It is okay. In fact, what I was wanting to establish 12 and I think you have answered is in relation to 13 paragraph 242, where you are saying that you yourself 14 suspect the cutting of corners, it was to establish 15 whether there was evidence beyond what we've heard at 16 the Inquiry as the basis for that suspicion and you have 17 answered there is no evidence beyond what we have heard 18 in the Inquiry. 19 A. I think I'd just like to, if I may, qualify that 20 slightly. I would like to add to that that in fact 21 again, and I don't want to impinge on other areas, but 22 there is evidence before the Inquiry apparently in terms 23 of the experts being precognosced. This year's circular 24 came out -- 25 Q. Well, Mr McKie -- page 65 1 A. Stop me if I'm going into the wrong territories. 2 Q. I will stop you but I will tell everyone why I am 3 stopping you: you have raised an issue. What we have 4 told you is that we will investigate that issue and it's 5 associated with the point you have made about some 6 questions required to be asked of SPSA and, indeed, of 7 Crown Office. So rather than ask you to give evidence, 8 what I am doing is saying I hear what you say, we will 9 investigate and we will raise it in that manner and 10 that's why I am just stopping this particular -- 11 A. Just to justify -- one sentence to justify what I have 12 said at the end in that the cutting corners must be 13 taken into account. If people aren't held to account 14 for the expert evidence they are going to give, then I 15 think cutting corners inevitably happens. 16 Q. If I then also take just finally in relation to this 17 your part 2 statement, there is only one paragraph 18 looking at this particular context I wanted to ask you 19 about. I don't actually have the code number for your 20 part 2 statement. It may not be on the system as yet. 21 There is one paragraph I want to ask you about and that 22 is paragraph 427. 23 A. Sorry, the number again, Mr Moynihan? 24 Q. It is 427, and it is on page 91. I will read it out so 25 that you have got it. The context is we are dealing page 66 1 with contact with SCRO before July 2000 but in fact I 2 will read out so that everyone knows what I am going to 3 ask you about. At paragraph 426 you ask or you say: 4 "In the overall context of change, I believe that 5 serious assessment must be made of the ongoing culture 6 within this organisation and close attention paid to 7 solutions implemented following other 8 mis-identifications, for example, the Mayfield case." 9 That is the part where I indicated to you we will be 10 asking SPSA about and indeed Crown Office so I need to 11 explore that with you. 12 What I did want to explore with you, though, was 13 paragraph 427 where you say: 14 "I understand that SPSA personnel have been 15 discouraged from attending this Inquiry and there has 16 been little evidence of any day-to-day interest by 17 management in the testimony being presented by its 18 experts on the general evidence of the Inquiry." 19 I understand from Miss Jones from McClays, who 20 represents SPSA, SPSA's position is that as an 21 organisation it has not discouraged any of its officers 22 from attending this Inquiry. 23 Do you have evidence to the contrary? 24 A. Yes, I have evidence from two experts who state that 25 that is the case, that in fact they have been page 67 1 discouraged. I'm not saying they're wrong, all I'm only 2 saying these tow experts have -- because I could never 3 quite understand. I thought this Inquiry would be a 4 good learning experience for experts. I thought they 5 were encouraged to attend it and to learn the lessons 6 and I was wondering why they weren't here. So my 7 information is from two experts, serving members, that 8 that's the case. 9 Q. Obviously when you say "people not encouraged", it's a 10 slightly different thing from positively encouraging 11 people and negatively discouraging them. Which is it? 12 A. Semantics. They are not encouraged to attend the 13 hearings. It's made clear apparently that they should 14 not attend the hearings. 15 The problem that some people have, of course, is 16 that serving members are actually in the hall and have 17 been since the Inquiry started and I think it was felt 18 that in a sense of equity if one was here, they should 19 all be here. But, I say, again, that's hearsay. This 20 is what I've heard, so ... 21 Q. We will leave that there. 22 The final matter I wanted to ask you about was the 23 positive position looking at this. My point of 24 reference for this is to bring up an article by Dr Dror 25 we looked at with Mr Zeelenberg. You yourself have page 68 1 mentioned Dr Dror in your statement, part 2 at 2 paragraph 403. If I bring up the article by Dr Dror and 3 others, FI1008A. You may recollect Mr Zeelenberg 4 speaking about this article. Do you have a copy of it? 5 A. Yes. I'm okay. I'm pretty well conversant with it. 6 Q. It is not something you mention in your statement. The 7 page in your statement when you mention Dr Dror is your 8 second statement, page 85. 9 A. That's right, yes. 10 Q. But it is no more than a convenient link in to looking 11 at Dr Dror. What this paper relates to, just so that I 12 can refresh your memory and tell people in the hall, 13 this is the paper in which Dr Dror mimics the Brandon 14 Mayfield case. He gives false information deliberately 15 to the Fingerprint Officers taking fingerprints they 16 have already correctly identified five years before. He 17 puts it to them again five years later but gives them 18 the false information that these are the Brandon 19 Mayfield prints so that they will then know these are 20 notorious mis-identifications and he assesses or waits 21 to see what happens. 22 Of the five experts, four change their opinion and, 23 indeed, some go to the opposite extreme and say 24 fingerprints they had previously identified are 25 incompatible with the suspect. So they completely page 69 1 change. Only one of the five has the courage of his or 2 her convictions to stand by, as we now know, their 3 original identification. 4 What Dr Dror in this paper is saying is this is 5 evidence of Fingerprint Officers being influenced 6 subconsciously by the context that the information they 7 are fed. But, in fact, what I am more interested in 8 looking at with you is page 76 of the article. If we 9 scroll through, and stop there, I will give you a chance 10 and if we could highlight the last full paragraph on the 11 right-hand column against "The critical question" 12 Dr Dror says: 13 "The critical question is what do these results 14 reflect and what do they imply. Are the inconsistent 15 fingerprint identification decisions a reflection of 16 practitioners' errors? Do they reveal deeper 17 methodological and procedural problems in the way that 18 fingerprint experts are trained and identifications are 19 conducted? Or do the results point out basic flaws in 20 the scientific basis and assumptions underlying 21 fingerprint identification altogether?" 22 Do you see that? 23 A. Yes. 24 Q. It is no more than a very concise summary. Are these, 25 in effect, the questions that you yourself commend to page 70 1 the Chairman as requiring consideration in relation to 2 your daughter's case? 3 A. Yes, I do with one or two qualifications if I may just 4 reel them out. 5 I took a considerable interest in this research 6 because I met Dr Dror and David Charlton some years ago 7 when it was all starting out. My main interest in all 8 this is not only the question of contextual matters or 9 emotional and psychological matters but also the whole 10 question of culture, because I feel that in many ways 11 culture is an overarching causal factor. So while I 12 accept that, yes, I would like the Inquiry to look at 13 that I think there is value in looking at, as Dr Dror 14 says, the other influencing factors. 15 I think we've got to come out of this Inquiry, I 16 think, with the lessons learned and I think these are 17 big lessons. There are matters affecting us all in this 18 room today coming from emotions, psychology and also 19 from culture and I think this research points the way 20 towards that. 21 Other research -- the National Academy of Sciences 22 in the USA have conducted a major analysis of forensic 23 evidence. I think there are many, many lessons to be 24 learned from that because, if you look at the 25 recommendations, you find out that some of the things page 71 1 that perhaps I suspected are contained in that. I think 2 going to see, like, the Mayfield case these are 3 excellent ways of doing it in a non-judgemental way; 4 instead of accusing people of having done things wrong, 5 it's now suggesting how we may do things right. So I 6 think it's very, very important research. 7 The only qualification I put to that is in many ways 8 Dr Dror is talking about unconscious elements, not 9 conscious elements, and we also need I think to look at 10 were there any conscious elements present in the work of 11 the experts which would perhaps take them away from 12 psychological and emotional factors. 13 Q. As I have said, that final point could be brought within 14 this first question today and that is whether the 15 decisions here reflect practitioner error and indeed 16 what the cause of the error would be. 17 Then, as you say, so far as the psychological aspect 18 is concerned, there is culture. If I understand that, 19 what you mean is one looks at it from the collective 20 organisation, the culture of the organisation 21 collectively? 22 A. I think it would be important -- if I may just qualify 23 that again -- is that we've heard the evidence, and I 24 believe it to be the case, that we do find these aspects 25 in an organisation where sometimes the older expert has page 72 1 the most knowledge and must be obeyed. I think some of 2 that is relevant to this Inquiry. I call these 3 "cultural aspects". I think arrogance is another 4 cultural aspect: people who believe that in fact they 5 are the best in the world. It's always a dangerous 6 assumption to say because, of course, someone will 7 immediately prove you wrong. Statements have been made 8 that in fact one -- I mean, Mr Zeelenberg has, to some 9 extent, been criticised as not being an expert. The 10 Danes are not experts. Well, that I think it would be 11 useful to look at these and evaluate them and, in 12 looking at culture, try if you like through training to 13 make people understand that we make these value 14 judgments which maybe are not based in reality. 15 I think what it does, what it has done in the past, 16 it isolates organisations caught up in some wave of "we 17 are wonderful" and I think it's a very, very dangerous 18 thing. In the SCRO in the early days, a lot of in-house 19 training was done. I think that's improved now and it's 20 more outside training. I think there are big, big 21 dangers in experts being caught up in this little world 22 of their own. 23 I would like to see in Scotland, if you like, for 24 want of a better word, an academy of forensic science. 25 I would like to see all the forensic sciences brought page 73 1 under the one umbrella. Fingerprinting is still close 2 to the Police Service. The Police Service need 3 fingerprinting. Taking myself back to my old days in 4 CID, you know, you really wanted them to get this 5 identification because it was the best evidence you 6 could get. I think I would love to see them, all the 7 experts, brought together under the one umbrella. I 8 would like to see some working group established to 9 analyse, for instance, the recommendations from this 10 Inquiry and the implementation of them. I think there's 11 a great deal to be done. If we do that, I believe 12 fingerprinting is a very, very important science, a 13 very, very important preventative measure and detection 14 measure for crime. I am a supporter of fingerprints. 15 I'm a supporter of fingerprint experts. 16 Q. I think you may recollect when we had Mr Rennison, who 17 was the English UK regulator but primarily with a remit 18 that did not include Scotland, that he put his finger on 19 the fact now we have the SPSA (the Scottish Police 20 Services Authority) we have one organisation responsible 21 for most of the forensic sciences. We have them brought 22 under the one roof now in Scotland. 23 A. To some extent but, as you well know -- and it needs to 24 be an issue that I'm sure you will explore -- there has 25 been a great deal of infighting in the SPSA over the page 74 1 last couple of years since its establishment. I mean, 2 with Mr Mulhern and the board there have been cases in 3 law. I don't think this has helped. I think this has 4 detracted from the work that the scientists are doing. 5 If you go back to minutes I gave you of a meeting in 6 Edinburgh held with a laboratory when Mr Nelson went 7 through to speak to them in 2007, these are 8 disillusioned people. I still believe that morale is 9 low. So I think we need to look at all these issues. 10 Because we have an organisation which says it 11 encompasses all the forensic science, it doesn't mean 12 that's happened. 13 So I think we've got the organisation but now we've 14 got to make the organisation work and I believe it's not 15 working. I believe that the morale within the 16 organisation is poor from bureau to bureau and I believe 17 that this Inquiry can go a long, long way to helping 18 resolve that for the experts themselves. 19 Q. Just again, as I said earlier on, rather than engage in 20 a discussion with yourself, what I would prefer to do is 21 simply take some of the themes you have mentioned with 22 these questions as well and carry them through in a 23 session that we will have to have with SPSA, indeed the 24 Crown Office, in due course. 25 Accordingly, what I will do is simply close my page 75 1 questions just now and thank you. Thank you, sir. 2 THE CHAIRMAN: Perhaps we will begin with you, Mr Holmes. 3 MR HOLMES: There are two chapters I would like to ask 4 Mr McKie about. They are in reverse chronological 5 order. The first is the media attention that these 6 proceedings have been subject to over the course of the 7 past ten years or more. 8 The second relates to the trial of Ms McKie and her 9 evidence during that trial. 10 THE CHAIRMAN: I mean, you are aware of the limitations on 11 my powers on the second area and that I would have 12 thought at the moment that what Mr McKie has done is he 13 has told us that this state of knowledge that he knows 14 of his own knowledge what his daughter knew and, as I 15 said before, it seems to me then her answers at the 16 trial have to be construed in the light of that. It is 17 for those who are construing it to form their view. 18 MR HOLMES: It may well be that as a result of that, sir, 19 that section is extremely brief and I think the majority 20 of my questions -- 21 THE CHAIRMAN: All I would do is ask you to bear in mind 22 that I have a limited power certainly so far as any 23 criminal proceedings would be concerned. Subject to 24 that then. 25 Cross-examined by MR HOLMES page 76 1 Q. Mr McKie, a lot of reference has been made to the media 2 attention this case has had over the course of the last 3 13 years now. Is it fair to characterise your contact 4 with the media as a campaign? 5 A. Yes. 6 Q. You have stated in your statement to this Inquiry at 7 paragraph 157: 8 "Some outside agencies had disagreed with SCRO but 9 Mr Bell and/or others had ensured that their comments 10 were suppressed." 11 Is that correct? 12 A. What paragraph? 13 Q. It is 157 of your statement. 14 A. Part 1? 15 Q. Part 1, yes. 16 A. Yes, got it. 17 Q. Can we take it from you the use of "and/or" in that 18 paragraph that you do not know yourself that Mr Bell 19 attempted to suppress these comments from outside 20 agencies? 21 A. Only from Mr Bell's evidence the fact that Devon & 22 Cornwall had written to them in giving a contrary view 23 to the identification of Y7 and, to my knowledge, that 24 was not -- no-one was told of that, including the Crown 25 Office. But I may be wrong in that. That's my page 77 1 understanding. 2 Q. Can we take it from your reference to "others" in that 3 paragraph as well that if any comment was suppressed, 4 you do not know who it was that sought to suppress it? 5 A. No. 6 Q. I ask because Mr Dempster, for example, took part in the 7 BBC documentary in 2000 and during that documentary he 8 claimed that Y7 was mis-identified and went on to imply 9 that the mistake was not an honest mistake. His 10 comments can hardly be said to have been suppressed, can 11 they? 12 A. I was being specific in what I was saying there. 13 Mr Dempster, in fact, decided to do this. He was a 14 whistle-blower in this case who, in my opinion, was not 15 treated well. That's the background to it. So you're 16 not going to suppress him. The fact of the matter is 17 that Mr Dempster was suppressed throughout this and it 18 was only at some considerable risk to himself that he 19 took part in the Frontline programme and that 20 he subsequently said that it wasn't an honest mistake. 21 I may add that he was then threatened with 22 discipline by the Grampian Police on the complaint of 23 SCRO. So there was certainly no authority given to him. 24 He had to step outside the line there and be a 25 whistle-blower. He was threatened with discipline. page 78 1 There was a discipline inquiry that lasted for week 2 after week after week and to do what he did was done 3 with considerable bravery, as any other people who spoke 4 up in this. Fourteen, or thirteen eventually, experts 5 from Lothian & Borders stepped outside it. But they 6 weren't allowed to do it, they stepped outside it and 7 they did it of their own free will and their own 8 volition and, quite honestly, whistle-blowers were not 9 treated well in this case. 10 Q. I will come to the other experts but in relation to 11 Mr Dempster he had already taken part in the BBC 12 documentary. He had already claimed this was not an 13 honest mistake. 14 A. Could you move away from that -- you're heading 15 underneath that monitor there and it's extremely 16 difficult just to catch you. Thanks very much. 17 Q. Mr Dempster had already taken part in the documentary 18 and he had already claimed on television that this was 19 not an honest mistake. In what way can he have been 20 said to have been had his comments suppressed? 21 A. Because it was well known that if you spoke out against 22 this mark then it was a mark of Cain. I've heard this 23 from a number of experts. 24 Do you actually believe the management of SCRO or 25 SPSA wanted people coming out and saying these were page 79 1 mis-identifications? When Mr Dempster and his two 2 colleagues put in two reports that was not something 3 they wanted. As I've said to you before they were 4 threatened with discipline. They were suppressed. The 5 only reason they did come forward through their own, if 6 you like, integrity and honesty, in my opinion. 7 Q. There are others who have commented on the mark and I 8 will give you some examples to see in what way their 9 comments have been suppressed. Mr McGregor, for 10 example, has provided a contrary opinion to his 11 colleagues here. 12 Has he been suppressed in any way? 13 A. I need to come back to my point. My point is that they 14 were suppressed. They did this through their own good 15 offices; they did this because they felt that the truth 16 should be known; they did this because Mr Innes visited 17 them then in Grampian and brought with him a letter from 18 Mr Russell which is part, I believe, of the database in 19 which was made quite clear there were allegations 20 against myself. It was made quite clear to these 21 gentlemen, Mr Holmes, that they speak out at their 22 peril. So they were suppressed, please believe me they 23 were suppressed. 24 If you just let me take this point through it's 25 very, very important, if you are threatened with page 80 1 discipline, if there's weeks and month long 2 investigation, if in fact you are more or less told we 3 don't want anybody speaking out against us, yes, they 4 were suppressed. It was only through their own 5 integrity and honesty they actually spoke out. 6 Q. What is Mr McGregor doing now? 7 A. Mr McGregor is working in Aberdeen. 8 I suspect I know quite a bit about the background to 9 this, Mr Holmes. The fact of the matter is when 10 Mr McGregor, who is now head of the fingerprint unit, 11 was, if you like, appointed that post, surprise was 12 expressed by senior people at Grampian that he ever got 13 the post. So there's an awful lot working in the back 14 of this. There's been a lot of animosity, a lot of 15 backstabbing and this has happened to everyone, not just 16 Mr McGregor. I think the experts themselves to some 17 extent this has happened to, the SCRO experts. The 18 organisation in my opinion, Mr Holmes, was seeking to 19 shut this down as best it could. 20 Q. What about those outwith the organisation? Mr Bayle, 21 for example, took part in the BBC documentaries and he 22 has commented on this case publicly. He can't be said 23 to have been suppressed, can he? 24 A. He's not within -- whose power -- he's not under 25 Mr Bell's or anyone else to suppress. But you see he page 81 1 has been suppressed. He, in fact, was threatened with 2 discipline in the Metropolitan Police when he first came 3 out to support this. He was threatened with discipline 4 and eventually, although he left the job because they 5 would not listen to him. So if you give me names, 6 Mr Holmes, I will tell you the circumstances. He indeed 7 tried to suppress him and the only way he could not be 8 suppressed was by leaving the organisation. 9 Now I can't put that down at Mr Bell's door but I 10 know for instance the Metropolitan Police and the SCRO 11 were in contact about this. The idea was, after the 12 meeting of 15th March, to close this down. 13 There's correspondence went out to forces in this 14 country and abroad to say that in their opinion it was 15 not fingerprints that lost this trial. It was other 16 matters and we could take belief in the quality of the 17 expertise coming from the SCRO. So, yes, Mr Bayle was 18 suppressed; he was indeed. In fact, he left his job 19 because of it. That's suppression. 20 Q. What about Mr Wertheim? He is also someone who is 21 outwith the organisation and he has been quite 22 vociferous about this case. He has taken part in a 23 television documentaries; he has given quotes to 24 newspapers; there have been articles quoting him and he 25 has posted frequently on various Internet sites where page 82 1 comment about this case is exchanged. 2 Has he been suppressed? 3 A. Let me qualify it to try to get through this one. It's 4 a fact where Mr Bell and the SCRO and the management had 5 power they were suppressed. Mr Wertheim was not within 6 their power. You've got to remember we had to go to 7 America to get an expert to actually speak to the 8 mis-identification of Y7 and QI2. Every expert in this 9 country, in my opinion, was more or less subtly told, 10 "You don't speak about this case". So, yes, they were 11 suppressed. Mr Wertheim is a foreign expert. No, he 12 wasn't suppressed although please believe me, as 13 happened from yourself, when he appeared at this Inquiry 14 to give evidence allegations were made against him. I 15 know that's not for me to judge but they have 16 continually along the way, along with SCRO experts, had 17 their fair share of, if you like, suppression and 18 vilification. 19 Q. Can we contrast that position with the experts who take 20 the view that Y7 is the fingerprint of Ms McKie. What 21 about Mr Swann and Mr Leadbetter? You were asked 22 earlier on about the disciplinary proceedings to which 23 they had been subjected. Is that not an attempt to 24 suppress what they have to say about it? 25 A. No, its not an attempt to suppress. I've already laid page 83 1 out in my statement, which you must have read, I have 2 accused them of incompetence or criminality. I have 3 done that and I have tried to lay out in my statement 4 the background and the reasons for that. These are my 5 reasons. I've given you 12 or 13 which I am quite happy 6 to read through for you. These are my reasons for 7 saying what was said. 8 Q. What about Mr Graham? You are aware of his evidence to 9 the Inquiry that he was subject to threats from you 10 yourself. If that's to be accepted is that not 11 something that could be characterised as an attempt to 12 suppress his evidence? 13 A. I have attempted to suppress no-one. I have attempted 14 to have the truth told in this. Time after time, I have 15 said if people speak the truth I will put my hand out 16 and shake them. I would do that today. Mr Swann, 17 Mr Leadbetter and Mr Graham have not been suppressed. I 18 made complaints on the basis of the evidence I had that, 19 in fact, they were incompetent and they got an error 20 wrong. 21 If you want me to I can go into the reasons why. I 22 have already laid out the number of inquiries that have 23 found that they were wrong and we start back with the 24 HMCIs, and I've also got the point to other issues in 25 their behaviour which I presume will come out when page 84 1 Mr Swann is interviewed. So, no, they weren't 2 suppressed. 3 What I was trying to do was I had people standing up 4 saying that my daughter had been in that house, that 5 David Asbury was a murderer. I'm sorry, but I'm not 6 prepared to accept that. They were not. 7 All I've ever done, Mr Holmes, is I've used the 8 evidence to back up what I'm saying and the complaints I 9 made to the Fingerprint Society and to CRFP, yes, I made 10 these complaints but not with a view to suppress them 11 but with a view to get the truth on the table. I asked 12 the Fingerprint Society to look at this independent of 13 myself. I told you I asked IAI. I wanted someone to 14 take hold of this thing. So I totally reject the idea 15 that I suppressed anyone. 16 Q. Would you accept the fact that your own commentary on 17 the case over the course of the past 13 years has not 18 been suppressed? 19 A. It certainly has not been suppressed, no, because I have 20 taken, if you like, the move to try and put my 21 information out there. I can tell you another thing, 22 the only reason that people listen to me and the only 23 reason the media listen to me was that I never once told 24 them a lie. I'm an ex-police officer and I'm now 25 70 years of age. I have told lies in my lifetime. Let page 85 1 me tell you there was never, ever a lie told and when 2 the media came to me and they said, "Look, we've got a 3 story", as they came on a number of occasions and said, 4 "So and so has said this", I invited them to my home or 5 went to their offices and took with me all the 6 documentation I have and I laid that documentation on 7 the table as proof. Now, what the media do with that is 8 they read that and they make their own assessment of it. 9 It's cards on the table time; it's not suppression in 10 any way that I can see it. 11 Q. I would like to ask about this Inquiry now. You have 12 spoken about and it is in your statement your attitude 13 towards this Inquiry. You have called for an approach 14 of truth and reconciliation. You were asked by Inquiry 15 Counsel about that earlier on and you were asked about 16 the approach to the experts who are still employed at 17 SPSA. You say that you feel that their fate is in their 18 own hands. Do you recall that from earlier today? 19 A. Yes. 20 Q. You have written letters to the Lord Advocate, in fact 21 the last is it two or three Lord Advocates? 22 A. Yes. 23 Q. To the last Justice Minister or -- 24 A. Justice Ministers -- 25 Q. -- looking for notice to be given to the defence in all page 86 1 cases in which Mr Foley, Mr Geddes or are Mr Bruce are 2 involved; is that right? 3 A. Correct. 4 Q. Paragraph 270 of your statement -- and, again, that will 5 be part 1 -- that is your current statement to this 6 Inquiry, not previous statements in which, as you said 7 this morning, you may have been a bit forceful. 8 Paragraph 270 goes so far as to state that the 9 continued -- 10 MR MOYNIHAN: If you could just give me a second I will 11 bring up the paragraphs so the public can see. It is 12 FI0181. The paragraph number, sorry? 13 MR HOLMES: 270, please. 14 MR MOYNIHAN: It is page 58. Sorry for interrupting you. 15 MR HOLMES: Paragraph 270 goes so far as to state that the 16 continued retention of these experts does not instill 17 confidence. That's not notice that you are looking for, 18 is it? 19 A. Not what? 20 Q. You say in that paragraph that the continued retention 21 of these experts does not instill confidence. It's not 22 notice that you are looking for to be given to the 23 defence in that paragraph, it's the fact that these 24 experts continue to be employed by the SPSA that seems 25 to be causing you some trouble. page 87 1 A. I think, again, it's the background to that, why does 2 the continued employment of these experts not instill 3 confidence? The reasons are that, in my 4 opinion -- again, I've got to say its my opinion -- 5 based on the inquiries and reports that I've laid before 6 the Inquiry that, in fact, these officers made a 7 mistake. If you want the background again to that: when 8 I wrote to these people I was looking at the 9 authorisation of experts. What I was trying to find out 10 who authorises experts in this country? Is it the Crown 11 Office that does it? Is it the police? Is it the SPSA? 12 Who will take responsibility for experts in this 13 country? That was the background to making these 14 statements and I thought we had three experts there who, 15 in my opinion, had made two mis-identifications who were 16 still employed in that organisation. If was wanting to 17 know who made the decisions to employ them? Who made 18 the decisions that they should give evidence in court? 19 That was the background to that. 20 Q. You have just made reference to them being still 21 employed by this organisation. What I am suggesting to 22 you is that you began by suggesting that it is necessary 23 to give notice to the defence in cases where these 24 experts are to give evidence. 25 A. Yes. page 88 1 Q. But what you seem to be saying is that there is a 2 problem with the continued employment of these experts. 3 Is that right? 4 A. There's a problem in the failure to deal with them. I 5 have said and say it again if these experts came to me 6 today and said, "I have got it wrong", I would shake 7 their hand. It's hard to say but you cannot go through 8 life -- we've had 13 years of this; they've had 13 years 9 of this. Someone has got to bring a halt to this. No, 10 I don't want them sacked or whatever else. I want the 11 authorities to deal with this issue. If these experts 12 have made a mistake, to admit it and to get the 13 retraining that they require. That's the whole ethos, 14 the whole principle behind what I'm doing, in fact, is 15 to establish the truth. It's not hatred against people. 16 It's not to get people sacked. It's to get this matter 17 resolved. I'm putting myself on the line to do that and 18 offering all the paperwork and all the knowledge that I 19 have to do it. Please believe me, Mr Holmes, it's 20 not ... 21 Q. But if these experts continue to maintain their opinion 22 that Y7 was made by your daughter, then what do you 23 expect to occur? 24 A. If you're employed by an organisation, the organisation 25 has some responsibility for this. The point I'm making page 89 1 is, aside from that, aside from that, the SPSA, the 2 Crown and other people responsible for the evidence they 3 give have got a responsibility to the courts and to the 4 public to ensure that that evidence is accurate. 5 The point I'm meeting is, in my opinion and in the 6 opinion of a large number of independent people in 7 reports dating back to 2000, that they are not effective 8 and efficient. I am not going to personalise this 9 against them. It's a principle at stake, when you have 10 three experts, it could be anyone working within an 11 organisation, who, in my opinion, have made 12 mis-identifications which they have not accepted, then 13 something needs to be looked at. That's all I'm saying. 14 And hopefully, as I say, that will be done. 15 Q. It is an issue that clearly causes you some concern. 16 You have gone from asking for notice to be given to the 17 defence to calling attention to the fact that the 18 continued retention of these experts, the continued 19 employment of these experts, poses a problem unless they 20 can be persuaded to change their views. 21 Is that not right? 22 A. No, it points to the fact that, in my opinion, if you 23 have three experts giving evidence in Scottish courts 24 who, in my opinion, have been proven to have made two of 25 the most heinous mistakes in the history of page 90 1 fingerprinting are still giving evidence someone needs 2 to have a look at that. Someone needs look at 3 authorisation procedures. I'm not looking for witch 4 hunts here; we're looking for solutions. 5 If these officers are looked at by the SPSA and the 6 Crown, surely the Crown have a responsibility to look to 7 the quality of evidence that's being placed before the 8 courts. As I have said, Mr Holmes, I spent 30 years of 9 my life, and my daughter did, and one of my sons did, in 10 the Police Service. Actually I care about, I care about 11 the justice system and the whole -- at times I'll accept 12 I have been forceful. I would admit that. At times I 13 have hoped perhaps that these experts that they would be 14 found out but these days are long gone, Mr Holmes. 15 My whole focus now is to resolve this matter, is to 16 assist this Inquiry in resolving this matter, is to have 17 the Inquiry reach its conclusions, conclusions which I 18 will accept in their entirety. I will accept them and 19 all I would ask is that all the other experts and the 20 SCRO, they give the same undertaking. That's all I can 21 ask. 22 Q. You say there are times you have been forceful, but your 23 efforts in this particular area have been very recent 24 indeed. The letters that you have lodged are as recent 25 as March of this year. So it is clearly not an issue page 91 1 that you are going to let, is it? 2 A. It's not an issue that I'm going to let go. It's not a 3 question of whether I let go of it or not. What I'm 4 saying to you is that the authorisation of experts and 5 their appearance before courts in Scotland, these are 6 matters for the SPSA and the Crown Office. So, if you 7 like, no, I'm not going to let go but I believe they're 8 responsibility to look at that. I'm bringing that to 9 the Inquiry here because I believe the Inquiry should 10 look at that: no more, no less than that. 11 Q. It's more than being a bit forthright though, isn't it? 12 It's a question of saying to the organisation that 13 unless these experts agree with your opinion, as you 14 have put it, of this mark then there is a problem with 15 their continued employment? 16 A. No, I'm not saying that. I've already explained to you 17 the focus of these letters was authorisation. There is 18 a problem with their continued employment -- not so much 19 their employment but giving evidence in court -- if in 20 fact the matter of the identification of Y7 and QI2 has 21 not been resolved. I believe that's a big issue. 22 I also believe there's an issue if in fact the 23 defence are not aware that these experts have made these 24 mistakes. So there are issues there. There are 25 principles at stake in there. So if you want to page 92 1 personalise it, personalise it. I am not personalising. 2 I have been forceful; I've admitted that. I've been 3 forceful in the statement I've given; I admit that, as 4 well. But even I am willing to step back and say, oh, 5 let's reflect on this and that's what I'm doing. 6 Q. As far as the other experts that have been involved in 7 this case are concerned -- and I am thinking 8 particularly about Mr Swann and Mr Leadbetter -- you 9 were asked earlier on by Inquiry Counsel whether you had 10 lodged a complaint against them to the IAI. 11 Forgive me, I'm not sure I picked you up correctly. 12 Were you involved in complaining to the IAI about 13 Mr Swann and Mr Leadbetter? 14 A. I was involved in no way in the establishment of the IAI 15 inquiry. I had no knowledge that the inquiry was coming 16 up. I in no way was involved in that. I told you that 17 I had been on the Internet in contact with the IAI 18 asking them to look at these matters but I have not 19 gone, if you like, gunning for Mr Swann and 20 Mr Leadbetter in particular, although I have made 21 statements that I believe the IAI had a responsibility 22 to experts in general to look at the behaviour of people 23 like Mr Swann and Mr Leadbetter, yes. 24 Q. So the approach that you have taken during this Inquiry 25 and the approach that you have taken with the IAI is page 93 1 hardly likely to reconcile you to the five experts that 2 we have just been speaking about, is it? 3 A. Mr Holmes, for 13 years it's a back-to-wall exercise and 4 here I'm trying to take some cognisance of what the 5 experts have been through as well. It's a system thing. 6 What you are trying to do is get the system to 7 understand what you're saying about authorisation and 8 other issues. And IAI and these organisations are part 9 of a world system for fingerprinting. 10 Going to these organisations, ask them to resolve 11 issues is not, in my mind, going after individual 12 experts. I say again if Mr Swann and Mr Leadbetter were 13 in fact to accept that mistakes have been made then I 14 would be the first to congratulate them. I just don't 15 think it's ever too late. But my focus has been the 16 system. My focus I don't think has been personal 17 dislike or hatred. 18 THE CHAIRMAN: Just while I remember to ask you, when you 19 say you have been on the Internet, that's on a website, 20 is it? 21 A. Yes, CLFEX. 22 THE CHAIRMAN: And that's your contact with the IAI then? 23 A. It's the only contact I've had with the IAI. I do 24 believe that I've been in contact with the IAI over 25 time, perhaps verbally and perhaps in one letter asking page 94 1 them to examine this whole issue but I have had no part 2 and no knowledge of any IAI committees coming up. 3 I want to clear -- yes, I have been pushing them to 4 do something about it and I have mentioned experts, all 5 of them, but only in the context: sort out this mess 6 yourself. Let the experts sort it out and then we won't 7 need to sort it out. 8 THE CHAIRMAN: Yes, thank you. 9 MR HOLMES: You have mentioned that the campaign, as it's 10 been termed, has been media-driven in your own statement 11 and the reference is paragraph 199. You say that if 12 ever a case can be said to have been media-driven, this 13 is it. Would you agree with that? 14 A. Absolutely. 15 Q. You admit in your statement that your campaign has 16 benefited from the fact that you were formally the Media 17 Liaison Officer of Strathclyde Police. Would you accept 18 that? 19 A. Yes. 20 Q. Again, you say in your statement that my clients have 21 been reluctant to involve themselves in the publicity 22 surrounding this case and, again, you feel that is 23 something that your side of the argument has benefited 24 from as a result. Would that be correct? 25 A. No, I didn't say -- what I said was if they have chosen page 95 1 not to do that or whatever reason that be, that's their 2 choice to make. The media are there. 3 I go back to the point I made originally here when 4 this all started off in 1997. We had our backs to the 5 wall and the feeling was that you were dealing with the 6 Crown Office, the police and the system itself. Come 7 1999, when my daughter was unanimously acquitted, we 8 thought the feeling would go but it didn't go. It 9 seemed to me -- and, again, I'm willing to be corrected 10 on this -- the meeting of 20th May onwards it was made 11 quite clear that the system was not going to deal with 12 this. 13 So I don't what you ask one man or one woman to do 14 in these cases. I chose, in fact, to go with the media. 15 Now, what I did was present to the media my side of the 16 story. That's all I did. If you think that the 17 media -- the Frontline Scotland programme, just as an 18 example which I've referred to in my statement, please 19 believe me the questioning that we got from the 20 Frontline team was extremely stringent and if you think 21 that Shirley, after going through what she'd gone 22 through in her trial, happily subjected herself to five 23 extra experts coming in, and the truth is they may have 24 found something different. 25 What you do is with the media, you lay the stuff on page 96 1 the table, you open up everything to them, you speak the 2 truth to them. That was a choice I made to do. The 3 choice that the other people made to do, that's their 4 choice. 5 Q. You say that you spent a good deal of time building 6 relationships with the media and those who chose not to 7 do so or who shunned the publicity and claimed the media 8 were against them then only had themselves to blame? 9 A. It's their responsibility. Blame's not a word -- if 10 I've used the word, I won't -- it's their 11 responsibility. We need all to take responsibility for 12 our own actions. 13 Q. Would you accept the fact that the SCRO officers were 14 prevented to some extent from commenting on matters 15 because of their employment? 16 A. That may well have been. I know that some have 17 commented but I accept that, yes, that would be present. 18 Q. So any adverse media commentary they may have gained is 19 not their own fault, as you have previously put it? 20 A. It's their own responsibility, the organisation's 21 responsibility. Yes, I'll leave it at that, yes. 22 Q. You have already accepted the fact that you were able to 23 get published, you built relationships with various 24 media, has assisted you in this case; is that fair? 25 A. Come back to me, won't you please? page 97 1 Q. It's assisted you that you have been able to build 2 relationships with the media, you were able to get 3 articles published; is that fair? 4 A. It's a two-edged sword but, yes, I would accept that. 5 Q. Paragraph 169 of your statement quotes Mr Bell as 6 stating that: 7 "In view of the media speculation I immediately 8 directed that the deputy head of the SCRO Fingerprint 9 Bureau and the Quality Assurance/Training Officer 10 re-examine the crime mark referred to as Y7 and it then 11 confirmed to me that in their opinion the mark had 12 indeed been made by Shirley McKie." 13 Again, I go back to this issue of suppression. 14 That's at a very early stage. How can media comment in 15 your favour have been suppressed when even when the mark 16 was being rechecked it was apparently resulting -- 17 sorry, even when the re-checking of mark Y7 was 18 apparently as a result -- 19 A. I'm not following you. You'll need to come back at me, 20 sorry. 21 Q. I'm sorry. I will put it a different way. 22 The quote from Mr Bell states that: 23 "In view of the media speculation, I immediately 24 directed that the deputy head of the SCRO Fingerprint 25 Bureau and Quality Assurance/Training Officer re-examine page 98 1 the crime mark referred to as Y7 and they then confirmed 2 to me that in their opinion the mark had been indeed 3 been made by Shirley McKie." 4 So do you accept that even at that very early stage, 5 the stage where the mark was being rechecked 6 by Mr Dunbar and by Mr Mackenzie, that the media 7 attention was assisting you? 8 A. Yes. 9 Q. I go back to this issue of suppression. It's hardly 10 fair to say that media commentary was suppressed when 11 even at that very early stage media commentary was 12 resulting in additional checks of this mark, is it? 13 A. Really, I'm not following you. Suppressed by whom? 14 Q. That is what I was asking you earlier on. It is clear 15 that there was media commentary out there and it was 16 resulting in additional checking of this mark which 17 perhaps wouldn't otherwise have taken place? 18 A. Yes, I accept that. 19 Q. The Internet as well has also assisted, you say in your 20 statement, that to September 2009 CLPEX (Complete 21 Latent Print Examination to give it its full title) 22 700,000 visitors; is that right? 23 A. Yes, 700,000-odd. 24 Q. Where did you get that information? 25 A. I got it from the CLPEX itself and asking what the page 99 1 responses had been to the various postings on the site 2 and that was a figure that I got. 3 Q. That's a website that's run by Kasey Wertheim, 4 Mr Wertheim's son; is that right? 5 A. Correct. 6 Q. There is also a website that are you the moderator of, 7 Shirley McKie.com? 8 A. Yes. 9 Q. Again, does that receive a large number of visitors? 10 A. Yes. For the fingerprint side it receives a steady flow 11 of visitors, yes. 12 Q. Are you responsible for the content of that site? 13 A. I am. 14 Q. So with television, newspapers, Internet sites at your 15 disposal, I come back to this issue again: who was in a 16 position to suppress any media commentary that was 17 taking place on the case? 18 A. You understand that there are two dimensions of media 19 contact and publicity. It is truly a two-edged sword. 20 You go out with facts as you see them to people. Then 21 they can find other facts and come back at you. All 22 I've ever done is put the facts as I see them on the 23 table, on the Internet site or with the media and it's 24 up to other people to make a judgment on that. 25 I don't see how you -- if you're criticising me, if page 100 1 you're not I apologise to you -- you cannot criticise me 2 for, if you like, choosing to mount the campaign which 3 I've already told using the media and using the 4 Internet. These are modern things which we tend to use. 5 It may be added that the SCRO and their friends have 6 used it as well, which is totally and perfectly fair. 7 So I think we've all been using this. 8 Q. You would accept that from the outset you had access to 9 these media; whereas, because of their employment, the 10 individuals at least, the SCRO officers themselves -- 11 I'm not talking about the institution but the 12 individuals -- did not have that kind of access? 13 A. I would accept I created access and I had, from my 14 previous post as a Force Information Officer, that I had 15 in fact some contacts. Yes, I readily accept that. 16 Q. Is it fair to say that the access that you had is 17 something that you have used to create the most positive 18 image possible for your daughter's case? 19 A. Yes, I would say that. Yes, I would say yes to that. 20 Q. A couple of examples. You suggest in paragraph 277 to 21 288 of your statement, which will be published, that the 22 experts who left the service, who left the SCRO, did so 23 because their expert evidence would no longer be 24 acceptable to the Crown. 25 Who told you that was the reason why these experts page 101 1 left? 2 A. The Lord Advocate made a statement at the Justice 1 3 Inquiry that he talked not in a pejorative sense that 4 the case was notorious and he felt because of that, 5 their evidence would not be acceptable in court. 6 I've also had a number of meetings with Mr Mulhern 7 (who was the Chief Executive Designate for the SPSA, as 8 you are well aware) and this was my understanding from 9 these conversations and from the evidence I heard from 10 the Lord Advocate. 11 Q. That does not account for the two senior officers who 12 wouldn't be giving evidence on a regular basis anyway, 13 though, does it? 14 A. Which two? 15 Q. Mr Mackenzie and Mr Dunbar. 16 A. In what way doesn't that account for it? 17 Q. Their positions at the time would not have called upon 18 them to give evidence on a regular basis. They were 19 Deputy Head of Bureau and the Quality Assurance/Training 20 Officer. So the fact that evidence would no longer have 21 been acceptable to the Crown is not something which 22 would have caused them to leave the service, is it? 23 A. Well, the reason -- I don't know the reasons. I have 24 not spoken to Lord -- I'm not aware of the inside 25 information on that but the fact is both did leave the page 102 1 service and they were tied into, if you like, the four 2 main experts by the fact that the Lord Advocate made a 3 decision that there would be no prosecution possible 4 against them in the future and that's the only way I tie 5 them together. 6 Q. "Leaving" implies that the process was entirely 7 voluntary on their part, does it not? 8 A. There may be an implication of that. My understanding 9 was -- and, again, I really stand to be corrected -- was 10 that they were offered a package to leave. Now, if the 11 gun was put at their head, I don't know that, but they 12 were certainly offered a package to leave the 13 organisation. That was my understanding. 14 Q. Part of the consequences, it has been accepted, of this 15 whole case on these officers is the loss of their 16 careers. Is that something that you would accept? 17 A. Of course it is, yes. It's extremely sad for them and 18 for their families, particularly for their families 19 because I don't think it's in their families' hands. A 20 lot of people have suffered in this and I just wish we 21 could turn the clock back and no-one had to leave 22 anything to be perfectly honest with you. 23 Q. Another example taken from your statement would be the 24 reference to the Lothian & Borders letter. That is 25 referred to in paragraph 25. page 103 1 A. 25? 2 Q. Yes. That states that there were 14 experts who sent 3 that letter which was later reduced to 13 when one 4 withdrew? 5 A. Yes -- I don't have that part of the statement here but 6 I will take that. 7 Q. When you say "one expert withdrew her agreement", are 8 you referring to Miss Hannah? 9 A. I believe I am, yes. 10 Q. Have you had an opportunity to see Miss Hannah's 11 statement? 12 A. To the Inquiry? 13 Q. I think it's the Mackay statement that is lodged on the 14 database. 15 A. I'm not aware of the detail of her statement. 16 Q. What you have said there is that she withdrew her 17 agreement to this letter. That's designed to make it 18 sound as if Miss Hannah had second thoughts about 19 signing that letter. Would you accept that? 20 A. My understanding of this was -- I may even have received 21 an e-mail from Miss Hannah at one stage, but it was made 22 quite clear that she had been on holiday at the time and 23 she had not intended that the letter was signed on her 24 behalf. 25 However, there is another side from the Lothian page 104 1 & Borders Bureau at that time that she had in fact 2 openly acceded to her name being put on to that although 3 she was on holiday. So you've two versions of that it. 4 But I accept that, yes. 5 Q. Her statement makes it clear that she did not sign the 6 letter, that she did not see the letter and that she did 7 not know about the letter. That is a little bit 8 different from "withdrawing her agreement"; is that not 9 right? 10 A. It's her version and there are other versions. I cannot 11 speak to this myself. All I can say to you is the 12 information I had before me was that in fact she was on 13 holiday at the time and she said that she hadn't given 14 her agreement. Again, I'm going from memory -- I think 15 she said that in fact she agreed that in fact Y7 was a 16 correct identification. I think that's what she did. 17 Q. So what you are presenting in your statement here is the 18 most positive possible view, from the point of view of 19 your daughter, that there was one expert who had 20 withdrawn her agreement to this letter rather than the 21 fact that, as seems to be the case from her statement, 22 there was one expert who did not agree to this letter 23 and in fact didn't even know about it. 24 A. That's the version you give but I've given another 25 version. The fact of the matter is it was understood by page 105 1 the other 13 signatories to this matter that she had 2 authorised her name to be put upon it. 3 I can't say who's right or wrong, Mr Holmes. I'm 4 not putting positive spin on it. I'm putting on that 14 5 experts from the Lothian & Borders Police signed the 6 letter to the Minister for Justice criticising, if you 7 like, the identification of Y7 and asking for something 8 to be done about it. I put in that one had withdrawn. 9 I've drawn that to your attention that one person did 10 withdraw their name. 11 Q. You have stated previously that a number of world 12 experts have looked at Y7 and come to the view that it 13 was not made by your daughter; is that right? 14 A. Correct. 15 Q. Firstly, in relation to that statement, you have said 16 yourself that there is no international standard for 17 identifying fingerprints. Is that the position so far 18 as you are aware? 19 A. That's the position. 20 Q. So the experts that you refer to are experts from 21 somewhere other than this jurisdiction and you can have 22 no idea what standards and procedures they have adopted 23 in carrying out any examination they might have made of 24 Y7, can you? 25 A. I can only know from the countries they are coming from. page 106 1 The majority would come from America and Canada with an 2 occasional one from UK. I am conversant with the 3 standards there. But some people came from Portugal and 4 from Eastern European countries. So you are absolutely 5 right; I would not know the standards from these 6 countries. Actually, probably one of the reasons why I 7 think it's so important to have an international 8 standard -- like you, I'm well aware that if we're to 9 trust fingerprints we need standards which every court 10 in every country can actually adhere to. 11 Q. The second point about that statement is you confirm in 12 your letter of 14th January 2000 to the Lord Advocate 13 that the materials distributed to these experts were 14 distributed by our American colleagues. First, by that 15 do you mean Mr Wertheim and Mr Grieve? 16 A. Mr Wertheim, I think Mr Grieve was involved. Ed German, 17 who was in the US Army at that time, he was involved in 18 the matter as well. 19 Q. These are individuals who already come to a view on Y7? 20 A. Indeed. 21 Q. Do you confirm also that the materials distributed were 22 distributed with an explanatory note? 23 A. In my belief, yes. 24 Q. Given the fact that we have heard it implied time after 25 time that the note on the Form 13 in this case, which page 107 1 says "ident required for deceased", could have some 2 influence on the eventual decision or the eventual 3 examination of the fingerprint experts, and given the 4 fact that we have heard evidence this morning about 5 Dr Dror's article about confirmatory bias, could an 6 explanatory note being issued with materials not be 7 expected to have influence on the eventual outcome of an 8 examination? 9 A. When you go across the world and ask 129 experts who 10 eventually, as you are aware, gave their conclusion on 11 Y7, of course that's going to happen. It's not only 12 psychological and contextual items, there's a whole host 13 of factors at play. The only point I'm making is that 14 among these experts were people, a professor at 15 University Monisans(?), Mr Sholtz who was the head of 16 the UN mission at Kosovo. These are fairly, if you 17 like, well-known experts with a world-wide reputation. 18 The professor has written a number of books on it. 19 What I am saying is that, looking at that in the 20 broad, it was just another, if you like, link in the 21 chain for me in the fact that print Y7 was a wrong 22 identification. But I totally accept with you that 23 there's some subjectivity of the whole thing, there's 24 psychological and emotional factors at play. They're at 25 play with them just the same as they are with anyone page 108 1 else. 2 MR HOLMES: Sir, I have some further questions. That might 3 be a suitable place to break. 4 THE CHAIRMAN: We will stop now then and sit again at 1.50. 5 MR HOLMES: I am obliged. 6 (1.00 pm) 7 (Luncheon Adjournment) 8 (1.54 pm) 9 MR HOLMES: Thank you, sir. 10 Mr McKie, we were speaking about positive aspects of 11 the case that had been the subject of publicity. I am 12 going to ask about other marks in the case that have 13 been subject of criticism but subsequently has been 14 found to be unfounded. Particularly I'm thinking about 15 QD2. That was criticised by the Danish experts who 16 looked at it but subsequently their criticisms were 17 found to be incorrect. 18 Of the Danes, you say in paragraph 66 of your 19 statement that they were given the wrong photographs. 20 You can't know that, can you, Mr McKie? 21 A. I believe they were given the wrong photographs. That's 22 my understanding. 23 Q. It is not something that you know for yourself? 24 A. No. It's up to the Inquiry to ascertain that. 25 Q. You have also given interviews in the past during which page 109 1 you have said that you experienced a lack of 2 co-operation from the police towards the beginning of 3 this case. Is that correct? 4 A. If you could be specific. I probably did but ... 5 Q. Do you feel now that towards the start of this case that 6 there was a lack of co-operation towards you from the 7 police? 8 A. It's a big question, Mr Holmes, because the police are 9 very central to this and of course I've been in the 10 force for 30 years. I got a feeling at the beginning 11 that -- it really is a major, major question this 12 because it comes down to the whole feeling we had at the 13 time that we had been part of the police and we were now 14 outcasts and I think certainly we felt very negatively 15 towards the police at that time. 16 We were also in considerable correspondence with 17 them for some time in the questions of Legal Aid for 18 Shirley's trial, which was being turned down time and 19 time again and I think we had to have two appeals for 20 the Local Authority to get the money. 21 So I suppose in general I would say that but I think 22 you need to be more specific. But, in general, I felt 23 that the police were not on our side in any way. 24 Q. Did you feel in some way restrained by the involvement 25 of the police in this case? page 110 1 A. Restrained? In what way? 2 Q. Yes. 3 A. I really ... restrained by the police in what way? 4 Q. Did you feel that it was made more difficult for you? 5 The involvement of the police in this case made the 6 presentation of your case more difficult? 7 A. Yes. If you like, put it this way: in broad terms, we'd 8 say that they were part of the opposition to us. So, 9 from that point of view, yes. 10 Q. Was it not at your insistence that the mark was 11 originally re-examined? 12 A. Mark Y7? 13 Q. Yes. 14 A. It may well have been. I cannot remember. All I knew 15 is I fully supported what was happening. It probably 16 would be mine but remember at that time we didn't know 17 where we were with this whole thing at all and we just 18 felt that Shirley couldn't have left it there. We were 19 looking at all sorts of solutions to this, even stupid 20 solutions like some wood that perhaps Shirley had used 21 in her house had been left in Marion Ross's house. So 22 we were looking at all sorts of things. 23 Q. Was it something that you asked to be done for the mark 24 to be re-examined? 25 A. It was asked. Whether specifically I was first in the page 111 1 queue, it was asked and I totally agreed with it. 2 Q. There were a number of checks on Y7; would you agree 3 with that? 4 A. There were. 5 Q. In fact, it went so far as for Ms McKie to be taken to 6 the house and for the mark to be re-photographed. Do 7 you recall that? 8 A. I do indeed. 9 Q. Does it in your view imply a lack of co-operation that 10 there was this non-standard procedure that she was taken 11 to the house and that the mark was re-photographed in 12 front of her? 13 A. You're talking about a single instance in a whole host 14 of things that were happening. In that specific 15 instance, no, but of course she also asked to be taken 16 to the SCRO and to watch the examiners going through 17 their processes and that was refused. So while I still 18 say in general terms, perhaps the opposition we felt was 19 felt -- perhaps I felt it too much, but we certainly at 20 that time seemed alone and beleaguered. But I accept 21 that that was co-operation to do that. 22 Of course, the point was the police really wanted to 23 resolve this because we had a murder case going on here 24 and Shirley's, if you like, refusal to accept that she 25 had been in the house was not helping that inquiry. So page 112 1 I can understand where the police were coming from. 2 Understanding doesn't mean that I liked it. But, yes, I 3 felt they were in opposition. 4 Q. Towards the beginning there obviously was, as shown by 5 this, some co-operation on the part of the police. 6 Would you accept that? 7 A. No, I don't accept that. Let's be honest about it. 8 They believed fully and they'd arrested David Asbury for 9 murder. Her that murder was put in jeopardy by my 10 daughter. No, they were in total opposition to us. 11 Q. In the example I have just given, the fact that she was 12 taken to the crime scene and the mark was 13 re-photographed and that that photograph was 14 again re-examined, is that something that is normally 15 afforded to a police officer or a Scene of Crime Officer 16 whose mark has been found at the crime scene? 17 A. I could argue that it was part of the process of trying 18 to clear this whole matter up. I don't see it as 19 positive or negative. The fact of the matter is we 20 asked for that to be done. Likewise other things we 21 asked to be done were not done. I can't go into these. 22 We felt at the time the police were in opposition. I 23 accept there would be things that they acceded to. Why 24 they did it, I would not know. 25 Q. There was a lengthy police investigation that was page 113 1 conducted by Mr Mackay. Is it the case that the results 2 of that investigation were reported to you at some 3 stage? 4 A. Yes, they were. 5 Q. Again, is that something that signals a lack of 6 co-operation on the part of the police? 7 A. I think you need to separate the police from the police. 8 I'm not talking about Mr Mackay. I'm talking about, if 9 you like, Strathclyde Police and the officers 10 investigating this. I've never at any time said that 11 Mr Mackay treated us other than with courtesy and that's 12 what he did. 13 So Mr Mackay was not -- at the end of the day, 14 Mr Mackay was doing an independent assessment of this 15 whole case. It wasn't our side or anybody's side. He 16 did his assessment. 17 Q. One of the things that you said earlier on is that you 18 had to be forthright in this matter because these 19 institutions were never going to look into this, but it 20 appears that from the outset that you did have at least 21 a degree of co-operation from the institutions involved, 22 did you not? 23 A. I think that came later in the game. At the beginning 24 from 1997 until my daughter's trial when she was 25 acquitted, I can assure you that there was opposition page 114 1 from the police. Once, if you like, that was held and 2 the HMCI's report was held and the results of 3 Mr Zeelenberg and Mr Rudrud's results, yes, things did 4 change at that time and I would expect them to change 5 because there were people involved in this who had been 6 friends and colleagues of mine, people actually who I 7 respect very, very highly. You know, it wasn't good 8 but, yes, at that time they did but at the beginning 9 there was always total opposition to my daughter, what 10 she stood for and what she was saying. 11 Q. One thing I will ask you if you have done intentionally 12 in your commentary to the media on this is to put your 13 daughter's character in issue, if you like. Have you 14 deliberately put forth the impression that she is an 15 individual who simply would not ever lie? 16 A. Yes. 17 Q. In fact, the quote on the front of your book is that her 18 only crime was to tell the truth; is that correct? 19 A. Yes. 20 Q. You have described in newspaper articles how difficult 21 it has been for her to accept anything but the complete 22 truth from other people, have you not? 23 A. Yes. 24 Q. The idea, I take it, behind that is that you wish to 25 convey to the public that your daughter would not under page 115 1 any circumstances tell a lie and that by extension she 2 would not lie about being in the house at Irvine Road. 3 Is that the idea behind it? 4 A. In broad terms my daughter is an honest person. At the 5 beginning of all this, I more than anyone else doubted 6 her word. I believed that fingerprints were infallible 7 and I gave her a hard time of it, let me tell you, but 8 eventually I came to believe that she was speaking the 9 total truth in this and all I would say is that 10 throughout the 13 years that she's been in -- she has at 11 all times spoken the truth. She's almost I believe 12 scared to tell a lie. 13 Q. That's made the position quite clear. If I can move on 14 very briefly to her evidence during her own trial, you 15 confirmed earlier on that both you and Ms McKie went to 16 see Mr Swann in Wakefield in 1998; is that right? 17 A. That's correct. 18 Q. You say that both of you had a full discussion with 19 Mr Swann about the work that you wanted him to do. 20 A. That's correct. 21 Q. Your statement confirms that your daughter was told when 22 Mr Swann's opinion that Y7 was made by her was given at 23 a consultation in March 1999; is that right? 24 A. Yes. 25 Q. Her own letter, although it appears to be misdated page 116 1 because it pre-dates that consultation confirms that she 2 met with Mr Swann. There is confirmation there that she 3 was aware of Mr Swann's involvement? 4 A. From our meeting with him, absolutely, and from knowing 5 the results, as I said, that all the communications were 6 mine. 7 Q. During her trial she was asked by the Advocate Depute a 8 number of times whether anyone else had looked at Y7 and 9 she replied that she did not know. 10 A. I have explained the context of that. It's not as 11 simple as that. I think I made my evidence perfectly 12 clear. I've went through the transcript. I have laid 13 than on the table, that I think at the beginning, 14 basically, she was asked did she know who had examined 15 it beforehand. In the context of the number of people I 16 had seen she didn't know that so I'm holding that the 17 whole way through. I accept it depends how you look -- 18 that's why I've laid it all out, transcript from the top 19 with comment and it's up to other people than me to make 20 that judgment. 21 Q. The ultimate question that was asked of her is that, 22 regardless of the identity, does she know anyone or of 23 anyone who looked at the mark other than Mr Wertheim and 24 she said in response to that question: 25 "I don't know." page 117 1 A. Broadly, what you are saying is correct but that's not 2 word-for-word, as you know. But let's put that by -- 3 but let me finish the answer. I've put it in context 4 before. That was the last question that was asked and 5 in context of what we'd spoken about before and seeing 6 her solicitor that was perfectly adequate. You also 7 know it -- and that disturbed me slightly -- the full 8 text was not released, certainly not by Mr Swann and 9 Mr Findlay's follow up points were never released at 10 all. These points make it quite clear that Mr Findlay 11 was running the show and he was in charge. So in the 12 context of all of that I accept that she made that 13 response to the last question. 14 Q. The transcript of Mr Findlay's re-examination is on the 15 database now. Have you had a chance to see that? 16 A. Yes. I'm not going to go into the detail, all I'm going 17 to say is this: that she did not lie, in the context I 18 put to you, in terms of her health -- let me make the 19 point. She's in the dock; she's a police officer; she's 20 looking at five or six years; her mental health is on 21 record as not being good at all; she's fighting for her 22 life. Yes, sometimes things get said and confused like 23 this. I know that she was not aware of who had examined 24 that print in total and that she was giving honest 25 responses to that. I leave it really to others to page 118 1 either accept that or dismiss it. 2 Q. You have accepted that she is in the dock; she's a 3 police officer; she has sworn to tell the truth. From 4 the transcript it would appear that that final answer 5 requires some explanation at least; would you accept 6 that? 7 MR SMITH: Sir, I wonder if I can interject? 8 THE CHAIRMAN: Yes. 9 MR SMITH: The transcript is there for everyone to see. The 10 evidence of Ms McKie is there for everyone to read and 11 accept, if they want to accept it. You, sir, as you 12 have already pointed out, have limited powers in this 13 matter. We have covered this evidence already and I 14 really have to question why we are covering the same 15 ground. 16 THE CHAIRMAN: I am not sure to what extent Mr McKie's 17 interpretation of what she said is entirely relevant. 18 It will be for others to form their view as to what the 19 proper interpretation of the answer, in light of the 20 information that we know that she had, should be. 21 MR HOLMES: Sir, that was my next and final question, which 22 is whether Mr McKie would accept that the only person 23 who can really explain why she said what she said is 24 Ms McKie. 25 THE CHAIRMAN: Very good. page 119 1 MR HOLMES: Is that something that you would accept, 2 Mr McKie? 3 A. I accept it with all the qualifications that I've given. 4 If you are instructed by your QC to conduct your defence 5 in a certain manner you follow that on pain of death, on 6 pain of going for gaol for five or six years. I'm not 7 pleading or excusing here. I may as well say just 8 finally with no animosity at all towards yourself but 9 really I have put forward my statement, everything I 10 know about this and, quite bluntly, she's been put on 11 trial once. I hope, Mr Holmes, you're not seeking to 12 put her on trial again and that -- it's a personal 13 comment. Perhaps it's not right but I'm making the 14 comment to you. It's unfair and it's not the way this 15 should be conducted. This is not a criminal inquiry. 16 It's an Inquiry about fingerprints. I'm doing my best 17 to help you. I think I have been extremely open with 18 you. It's all in the statement. I would hope to be 19 able to rest at that. 20 THE CHAIRMAN: I think that concludes your question on that 21 topic? 22 MR HOLMES: Indeed, sir, and I don't intend to ask any 23 further questions. 24 THE CHAIRMAN: Thank you. Mr Macpherson, have you any 25 question or any issue you want leave to ask? page 120 1 MR MACPHERSON: No, I don't thank you, sir. 2 THE CHAIRMAN: Miss Grahame? 3 MISS GRAHAME: No thank you, sir. 4 THE CHAIRMAN: Mr Smith? 5 MR SMITH: Sir, there is just one very short matter of 6 clarification I can deal with in probably one or two 7 questions relating to content of paragraph 157 of his 8 statement. He was asked some questions by Mr Holmes 9 about it and I'd just like be clear what Mr McKie's 10 position actually is. That's the only matter I wish to 11 ask about. 12 THE CHAIRMAN: Yes. 13 MR SMITH: I wonder if we could have paragraph 157 of 14 Mr McKie's Inquiry statement, which is I think FI0181. 15 MR MOYNIHAN: Mr Smith, do you have the page number? 16 MR SMITH: I am sorry, I'm hoping to get there just in one 17 moment. 18 THE CHAIRMAN: It's page 34 in my copy. 19 MR SMITH: Thank you. It is page 34, paragraph number 157 20 if we could have that expanded, please. 21 Cross-examined by MR SMITH 22 Q. I would just like to be clear, Mr McKie, the content of 23 this paragraph is as follows that: 24 "What wasn't revealed until the current Inquiry was 25 that some outside agencies had disagreed with SCRO but page 121 1 Harry Bell and/or others had ensured that their comments 2 were suppressed." 3 I take it you meant what is said there, that some 4 outside agencies had disagreed, et cetera? 5 A. Yes. 6 Q. You are not suggesting that all outside agencies, 7 including people like Pat Wertheim, et cetera, were 8 being suppressed? 9 A. No, it's my terminology. 10 Q. As far as that suppression is concerned, you mentioned, 11 I think in passing, the question of Mr Dempster from the 12 Aberdeen Bureau? 13 A. I did, yes. 14 Q. Was there ever an official report prepared by the 15 Aberdeen Bureau, as it were, reflecting the views of the 16 Aberdeen Bureau as a whole on the identification of Y7? 17 A. There was two reports, one on Y7 and one on QI2. These, 18 I think, were actually the most seminal reports I ever 19 received. I think for the first time, although I excuse 20 the Lothian & Borders expert, but the first time that 21 Scottish experts stood up and gave these reports, so the 22 answer is yes. 23 Q. I am interested in the question of whether they were 24 official reports, as it were, representing officially 25 the view of the Aberdeen Bureau? page 122 1 A. My understanding is that, in fact, they had asked their 2 superiors if, in fact, they could complete a report but 3 that, if you like, was refused to them and they had 4 discussions and decided that on a point of principle 5 they believed this was wrong and they felt that they 6 should make these reports. They, however, made checks 7 and balances before they did it and they submitted them, 8 I believe, to the Lord Advocate, to their force and a 9 copy was sent to myself. 10 Q. I think, it was some time ago, but we had some evidence 11 before the Inquiry about Devon & Cornwall Police 12 Authority issuing a view as to the identification of Y7. 13 A. That's correct. 14 Q. Can you recall that Mr Bell's response to that was 15 certainly other than it should be made public, if I put 16 it that way. Do you recall that evidence? 17 A. Indeed I do. 18 Q. I take it that is the kind of thing that you are talking 19 about, about some agencies being suppressed or dissuaded 20 or that kind of thing, is that the type of thing you are 21 referring to? 22 A. Yes. The gossip in this is more interesting because 23 there's so many stories going about about suppression of 24 evidence, from the Metropolitan Police, but I really 25 have tried to confine myself to the facts and certainly page 123 1 that's the fact and that's the suppression that I was 2 speaking about. 3 MR SMITH: Thank you. 4 THE CHAIRMAN: Mr Moynihan? 5 MR MOYNIHAN: I have no further questions, sir, thank you. 6 THE CHAIRMAN: There are just two matters I would like to 7 ask you about. 8 As Mr Moynihan was going through with you today the 9 various hurdles that Lord Johnston referred to, there 10 were many grounds upon which the jury could have decided 11 to acquit your daughter. 12 A. Correct. 13 THE CHAIRMAN: No doubt you were interested, to say the 14 least of it, in the evidence of Mr Wertheim and 15 Mr Grieve. But at the end of that trial, although you 16 may have been absolutely satisfied that it had been 17 proven that it was not your daughter's fingerprint on 18 Y7, others could have legitimately taken the view that 19 there had been a disagreement between experts. 20 A. Absolutely. 21 THE CHAIRMAN: Looking at the reaction of the various 22 authorities at that stage, on one view what had happened 23 was two lots of experts had disagreed. That in itself 24 would not normally be the cause for some steps to be 25 taken by the authorities because frequently in a page 124 1 criminal case the prosecution experts and the defence 2 experts don't agree and if one had enquiries and took 3 steps and so on after that, it would be endless. 4 So would it be fair to say that your expectations 5 might be thought to have been on the basis that you 6 believed, as you do, that it was not your daughter's 7 fingerprint; therefore, they should have taken a number 8 of steps, but it would only be when it is absolutely 9 established that it is not her fingerprint that one 10 could reasonably expect those steps to be taken. 11 A. Yes, I can well understand all of that but I've said 12 before this is the first time that fingerprinting had 13 ever been challenged. I mean, if you had been in court 14 and seen the evidence of Mr Wertheim and Mr Grieve, it 15 was powerful, powerful evidence. Even Mr Findlay in 16 talking to us beforehand on one of the submissions he 17 made he realised this was seminal moment in 18 fingerprinting because, to his knowledge, it was the 19 first time that fingerprinting was going to be 20 challenged. 21 THE CHAIRMAN: Well, that brings me to the point I wanted to 22 ask you. Was it the fact that fingerprint evidence had 23 been challenged that made you feel that the authorities 24 should have been taking more positive steps or was it 25 the fact that you believed that it was not your page 125 1 daughter's fingerprint? I want to be clear whether it 2 is the challenge you think was sufficient to trigger 3 further steps to be taken by the relevant authorities. 4 A. I'm sure you can imagine, sir, the sheer relief on the 5 verdict. I'll never forget it. I want to put it into 6 that sort of -- I want to put you into that sort of 7 place and that day I'm quite sure, you know, we didn't 8 think of that at all. But afterwards when we began to 9 think about it as ex-police officers you realised that 10 there are many, many unanswered questions happening here 11 and, above all, why had this organisation not had the 12 marks independently examined? I would have thought if 13 fingerprinting was challenged and I accept that the 14 jury, there's lots of reasons, but fingerprinting had 15 been challenged. Why did no-one think of having that 16 independently examined. If I look at the meeting of the 17 23rd, I appreciate, but I looked at that meeting, to me, 18 and I may be wrong, it's just looks like a rush meeting, 19 let's get this finished with, let's get this out the 20 door. All the safety, the checks that I believe should 21 have been done were not done and I think, to some 22 extent, history proves me right on that because whenever 23 it was done -- but I accept, it was an emotional time 24 and I accept that how dare they challenge my daughter 25 would be in the background but I really believe -- I page 126 1 believed -- the shock of this was enormous to me. I 2 believed in the infallibility of fingerprints. I'd bet 3 my life on it for years and all of a sudden they were 4 wrong. So it's a mix of things but I still believed and 5 to this day I believe that the authorities did not deal 6 with this in the proper way, to have a meeting with the 7 fingerprint experts afterwards and thereafter, from that 8 moment on, nothing -- it's the wrong way. 9 THE CHAIRMAN: On the basis that fingerprints had been 10 challenged for the first time in Scotland? 11 A. Yes, and they were refusing to have an independent 12 examination which may have proved them right. 13 THE CHAIRMAN: I see. 14 The other matter is quite different. When you were 15 being asked about the IAI, the committee that 16 investigated it, I believe you said -- and I haven't 17 checked the transcript -- when I asked you about with 18 all the information, your connections on the Internet, 19 and I think you said you had also written a letter? 20 A. I may have. 21 THE CHAIRMAN: If you have a copy of the letter, perhaps you 22 would make that available because this may be an issue, 23 well it is an issue and it is important that I should 24 have all the facts. 25 A. I reflected -- may I go on? page 127 1 THE CHAIRMAN: Yes. 2 A. I've reflected on it. I think possibly it was an e-mail 3 as opposed to -- everything's an email. If I have got 4 that information I will immediately pass it to the -- 5 THE CHAIRMAN: Do you know roughly when that would have 6 been? 7 A. Two years ago -- something or that order. 8 THE CHAIRMAN: If you can find it, then perhaps you would 9 make it available. It would be helpful. 10 First of all, I think we can allow you to leave the 11 witness box. Thank you for giving me a very 12 comprehensive statement. I am sure it was very time 13 consuming. Thank you for doing that. 14 A. Thank you, sir. 15 (The witness withdrew) 16 THE CHAIRMAN: The question of redactions -- 17 MR MOYNIHAN: Sir, I have had some conversations with my 18 learned friends. There is one point that I myself have 19 overlooked that I will mention to those in the hall. We 20 may have to take a brief point. The redactions are the 21 list that was circulated by the Inquiry team a couple of 22 days ago, with reinstatements of some passages 23 yesterday. 24 There is one other passage that ought to be, at 25 least from my perspective, reinstated. It goes with the page 128 1 same passages reinstated yesterday. It is all in 2 Mr McKie's first statement. It is paragraph 69 of the 3 first statement that had been proposed for deletion and, 4 at least from my perspective, goes with other passages 5 that I am reinstating. Subject to discussion of that 6 amongst ourselves, I understand the redactions are 7 capable of agreement and, therefore, do not need to be 8 taken up with you today. 9 THE CHAIRMAN: Do you wish to have some discussion? 10 MR MOYNIHAN: We will have some discussion amongst 11 ourselves, sir, to resolve that. 12 THE CHAIRMAN: Subject to that, there is agreement; is that 13 right? 14 MR MOYNIHAN: Subject to that. I will confirm that 15 amongst -- 16 THE CHAIRMAN: Well, how we will leave it is I will rise now 17 and if agreement isn't reached and it is necessary for 18 me to give a ruling, then I will come back and do that. 19 MR MOYNIHAN: Sir, just in case you don't come back, with 20 apologies -- 21 THE CHAIRMAN: I will if required. 22 MR MOYNIHAN: No, no, sir. At least I can be redundant, you 23 perhaps are not. 24 In case we do not require to ask you to come back, 25 with apologies to all concerned, you know but it has not page 129 1 been told to members of the public, Mr McKie was the 2 only witness for this week so we will accordingly not 3 have evidence tomorrow. We would be resuming on Tuesday 4 and then have a full week next week, so I do apologise 5 that we have miscalculated this week. 6 THE CHAIRMAN: So that means no sitting tomorrow -- 7 MR MOYNIHAN: No, sir. 8 THE CHAIRMAN: -- and we will return, if required, today. 9 (Adjourned until 10.00 am, Tuesday 20th October 2009) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25